Himachal Pradesh High Court
Sh. Mohan Lal Gupta vs Rt on 13 July, 2016
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
.
SHIMLA:
Cr.MMO No. 76 of 2015.
Order reserved on: 19.5.2016.
Date of Order: July 13,2016.
Atul Kumar Gupta son of
of
Sh. Mohan Lal Gupta. ...Petitioner/co-accused.
Vs:
rt
State of Himachal Pradesh. ...Non-petitioner.
Coram:
The Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for Reporting?1yes
For petitioner: Mr.K.D.Shreedhar, Sr. Advocate
with Mr.Y.S.Thakur, Advocate.
For non-petitioner: Mr.M.L.Chauhan Addl. Advocate
General with Mr.R.K.Sharma, Dy.
Advocate General.
P.S.Rana, Judge.
ORDER:Present petition is filed under Section 482 of the Code of Criminal Procedure 1973 for quashing summon order dated 20.2.2014 passed by learned Special Judge-II 1 Whether reporters of Local Papers may be allowed to see the judgment?yes ::: Downloaded on - 15/04/2017 20:47:58 :::HCHP 2 Sirmour District at Nahan in case No. 6-N/7 of 2014 title .
State of HP Vs. Atul Kumar Gupta and another whereby learned Special Judge Sirmour District at Nahan summon petitioner under Drugs and Cosmetics Act 1940 as co-
accused.
of Brief facts of the case:
2. Drug Inspector filed complaint against accused namely (1) Atul Kumar Gupta son of Sh Mohan Lal Gupta.
rt (2) Saurab Behal son of Sh Anil Behal (3) Anil Behal father of co-accused No.2 under Section 18(a)(i) read with section 17, 17-B, 18(a)(vi), 18-B, 18(c) and 22(3) punishable under Section 27(c), 27(d), 28-A, 27(b)(ii) and 22(3) of Drugs and Cosmetics Act 1940. Complainant drug inspector alleged that M/s Soliance Pharma Products situated at village Surajpur Tehsil Paonta Sahib HP manufactured spurious and illegal kind of drugs for sale to general public. It is alleged in complaint that premises of the firm was raided and it was observed that proprietor M/s Soliance Pharma Products village Surajpur Tehsil Paonta Sahib HP was indulged in manufacturing of drugs relating to other manufacturers and number of drugs belonging to other ::: Downloaded on - 15/04/2017 20:47:58 :::HCHP 3 Pharma manufacturers were recovered from the premises of .
firm M/s Himalayan Laboratories. It is further alleged in complaint that co-accused Atul Kumar Gupta has sublet premises of M/s Himalayan Laboratories to the firm namely Soliance Pharma Products. It is further alleged in complaint of that by way of manufacturing drugs with label bearing the name and address of other manufacturers are fictitious. It is further alleged in complaint that samples of drugs were rt drawn by drug inspector for the purpose of analysis and test.
It is further alleged in complaint that analyst Kandaghat after conducting necessary analysis submitted analysis report and declared that samples were not of standard quality and declared the same as misbranded. It is further alleged in complaint that M/s Lincoln Pharmaceuticals Limited filed complaint against Soliance Pharma Products C/o M/s Himalayan Laboratories village Surajpur Paonta Sahib HP. M/s Lincoln Pharmaceuticals Limited has filed complaint that M/s Soliance Pharma Products village Surajpur Tehsil Paonta Sahib District Sirmour HP had supplied them spurious and illegal drugs after submitting forged license on form-25A and form-28A bearing numbers ::: Downloaded on - 15/04/2017 20:47:58 :::HCHP 4 SL-MNB/11/57 and SL-MB/11/58. It is further alleged in .
complaint that accused persons have intentionally manufactured illegal drugs and have sold the same to M/s Lincoln Pharmaceuticals Limited by submitting false and forged documents and licenses. It is further alleged in of complaint that co-accused Atul Kumar Gupta has sublet premises on rent to M/s Soliance Pharma Products through its proprietor Saurab Behal for running the business of rt drugs. It is further alleged in complaint that co-accused Atul Kumar Gupta could not sublet premises to any other person or firm without approval of competent authority. It is further alleged in complaint that co-accused Atul Kumar Gupta had illegally sublet premises to co-accused Saurab Behal to carry out illegal activities in said premises. It is further alleged in complaint that co-accused Atul Gupta is the proprietor of M/s Himalayan Laboratories village Surajpur Tehsil Paonta Sahib and the firm was having valid license on form-25 and form-28. It is further alleged in complaint that firm was indulged in manufacturing of drugs other than products permitted by drug licensing authority. It is further alleged in complaint that M/s Himalayan Laboratories was found in ::: Downloaded on - 15/04/2017 20:47:58 :::HCHP 5 possession of drugs and packing materials bearing the name .
of manufacturer which does not exist and does not possess a valid drugs license. It is further alleged in complaint that license of firm M/s Himalayan Laboratories was also cancelled by drugs licensing authority vide office order dated of 30.7.2011. It is further alleged in complaint that accused persons have fraudulently used fake license numbers and thereafter sold drugs to M/s Lincoln Pharmaceuticals rt Limited upon fake license. It is further alleged in complaint that SHO police station Paonta Sahib intimated that police official could not take cognizance of case and handed over case file to drugs inspector and requested drug inspector to file complaint under the provision of Drugs and Cosmetics Act 1940 and Rules framed thereunder. It is further alleged in complaint that permission to launch prosecution was received from State Drugs Controller-cum-Controlling Authority Baddi HP. It is further alleged in complaint that accused persons have manufactured and sold drugs which are spurious, misbranded and not of standard quality without having valid license to manufacture the drugs.
::: Downloaded on - 15/04/2017 20:47:58 :::HCHP 63. Learned Special Judge (II) Sirmour District at .
Nahan vide order dated 20.2.2014 held that there is prima facie case made out against accused persons and learned Special Judge directed that accused persons be summoned under Drugs and Cosmetics Act 1940.
of
4. Feeling aggrieved against the order dated 20.2.2014 petitioner filed present petition under Section 482 Cr.PC. rt
5. Court heard learned Advocate appearing on behalf of petitioner and learned Additional Advocate General appearing on behalf of non-petitioner and also perused entire record carefully.
6. Following points arise for determination in present petition.
(1) Whether petition filed under Section 482 of the Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of petition?.
(2) Final Order.
Finding upon point No.1 with reasons.
7. Submission of learned Advocate appearing on behalf of petitioner that petitioner had leased out premises to ::: Downloaded on - 15/04/2017 20:47:58 :::HCHP 7 co-accused Saurab Behal and if any spurious or misbranded .
drugs were manufactured in rented premises then petitioner is not responsible for any offence under Drugs and Cosmetics Act 1940 is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully of perused complaint filed by drug inspector and Court has also perused documents annexed with complaint. There is specific recital in complaint that petitioner Atul Kumar rt Gupta is the proprietor of M/s Himalayan Laboratories situated at village Surajpur Tehsil Paonta Sahib District Sirmour H.P. It is prima facie proved on record that drug licensing authority issued show cause notice to M/s Himalayan Laboratories owned by co-accused Atul Kumar Gupta. It is prima facie proved on record that drug licensing authority cancelled drug manufacturing license bearing Nos.
S-MNB/08/17 and S-MB/08/18 granted in favour of M/s Himalayan Laboratories with immediate effect on the ground that M/s Himalayan Laboratories has manufactured spurious drugs for sale as defined under section 17-B(c) of Drugs and Cosmetics Act 1940 i.e. tablet ZANSET, tablet RANIN-150, tablet RANIN-300, tablet COMPRO-0.5, capsule ::: Downloaded on - 15/04/2017 20:47:58 :::HCHP 8 Amoxycillin 500mg, capsule OMPRI, capsule PEPTOCID-DSR .
tablet DEXSO, capsule Amoxicillin 250mg, syrup HEMGOLD, tablet Ofloxacin 200 and tablet SOLVIT. It is prima facie proved on record that drug licensing authority has cancelled license of M/s Himalayan Laboratories owned by co-accused of Atul Kumar Gupta on the ground that M/s Himalayan Laboratories has also in addition manufactured another spurious drugs for sale as defined under rt Section 17-B(e) of Drugs and Cosmetics Act 1940 i.e. Tablet KOL-DIN, drops SECON, syrup SYLIP, Susp. SOLPRIM, Susp. NAZAMEEN and Syrup MULTISOL.
8. Submission of learned Advocate appearing on behalf of petitioner that there are no sufficient grounds for proceedings against petitioner under section Drugs and Cosmetics Act 1940 is rejected being devoid of any force for the reasons hereinafter mentioned. It is prima facie proved on record that drug licensing authority has cancelled license granted to M/s Himalayan Laboratories owned by petitioner Atul Gupta on the ground that firm has manufactured spurious drugs as mentioned in office order dated 30.7.2011 placed on record.
::: Downloaded on - 15/04/2017 20:47:58 :::HCHP 99. Submission of learned Advocate appearing on .
behalf of petitioner that premises was inspected by Drug licensing authority at the instance of Atul Kumar Gupta and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. There are of direct allegations against co-accused Atul Kumar Gupta proprietor of M/s Himalayan Laboratories situated at village Surajpur Tehsil Paonta Sahib District Sirmour HP that M/s rt Himalayan Laboratories has manufactured spurious drugs for sale as cited supra and thereafter on dated 30.7.2011 license No S-MNB/08/17 and license No. S-MB/08/18 issued in favour of M/s Himalayan Laboratories was cancelled by Drugs licensing authority.
10. Submission of learned Advocate appearing on behalf of petitioner that petitioner has simply sublet premises to Soliance Pharma Product and petitioner is not personally liable for illegal acts of Saurab Behal proprietor of Soliance Pharma Product is rejected being devoid of any force for reasons hereinafter mentioned. In complaint there are direct allegation against M/s Himalayan Laboratories owned by co-accused Atul Kumar Gupta relating to manufacture of ::: Downloaded on - 15/04/2017 20:47:59 :::HCHP 10 spurious drugs vide office order dated 30.7.2011 placed on .
record. In view of direct allegation against M/s Himalayan Laboratories relating to manufacture of spurious drugs it is not expedient in the ends of justice to allow petition.
11. Submission of learned Advocate appearing on of behalf of petitioner that petitioner is working in pharmacy in Adars Vujendra institute of Pharmaceutical Sciences Shobhit University Gangoh UP as Principal and he has practically no rt time to visit premises in question located at Paonta Sahib and co-accused Saurab Behal has used rented premises for illegal activities without knowledge of petitioner and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that license Nos. S-MNB/08/17 and S-MB/08/18 was granted to M/s Himalayan Laboratories w.e.f. 31.7.2008 till 30.7.2013. It is prima facie proved on record that petitioner Atul Kumar Gupta is the proprietor of M/s Himalayan Laboratories. It is prima facie proved on record that license issued in favour of M/s Himalayan Laboratories was cancelled on the ground that M/s Himalayan Laboratories has manufactured spurious drugs for sale as defined under ::: Downloaded on - 15/04/2017 20:47:59 :::HCHP 11 Section 17-B(c) and 17-B(e) of Drugs and Cosmetics Act .
1940.
12. Submission of learned Advocate appearing on behalf of petitioner that court below has passed summon order and has set criminal process into motion against Atul of Kumar Gupta without applying its judicial mind in a mechanical manner is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully rt perused statements of (1) Sunny Kaushal, Drugs Inspector (2) Sh. Nishant Sareen Drugs Inspector (3) Sh. Bhisham Thakur, SHO (4) Sh. Mohd. Shan, CMO (5) Sh. Kapil Dhiman, drugs Inspector, (6) Sh. Dev Kant Prakash Naib Tehsildar (7) Sh. Grucharan Singh Drugs Control Officer (8) Sh. Sunil Dahiya Drugs Control Officer (9) Sh. Vishal Bhardwaj (10) Ramesh Kumar (11) Sh. Baldev Singh (12) Sh. Jasveer Singh (13) Sh. Rajender Kumar (14) Sh. Preet Pal Singh (15) Sh. Kalyan Singh (16) Sh. Kamlesh Kumar (17) Smt. Jeeto Devi (18) Sh. Raj Kumar (19) Sh. Nertu Ram (20) Sh. Ram Parkash (21) Sh. Anil Kumar Sareen (22) Sh. Dilip Singh (23) Sh. Mahima Singh (24) Sh. Dhiraj Sharma (25) Sh. K. Chandru (26) Sh. Wasim Ahmed (27) Sh. Satwinder ::: Downloaded on - 15/04/2017 20:47:59 :::HCHP 12 Singh. After perusal of statements of above stated persons .
there are sufficient grounds to summon co-accused Atul Kumar Gupta under Drugs and Cosmetics Act 1940.
13. Court has also carefully perused documents annexed with complaint i.e. (1) Copy of notification Health-A-
of B (1) 2/2001 dated 28.03.2012 annexure P1 (2) Copy of daily station diary vide No. 56(A) dated 13.07.2011 annexure P2.
(3) Copy of notification No. Health-A-B(1)2/2001-Loose-II rt dated 09.06.2010 annexure P3 (4) Letter to SDM Paonta Sahib as annexure P4 (5) Copy of form 16 annexure P5 (6) Copy of form 17 annexure P6 (7) Copy of spot panchnama annexure P7 (8) Copy of request letter to register an FIR dated 15.7.2011 annexure P8 (9) Copy of FIR annexure P9 (10) Spot map prepared by police dated 15.7.2011 annexure-
P10 (11) Fard for handing over original form 16, form 17 and other documents in annexure P11 (12) Application dated 15.7.2011 for custody orders annexure P12 (13) Certified copy of custody orders annexure P13 (14) Copy of form 18 No. NHN/Drugs/11/76 dated 19.7.2011 annexure-P14 (15) Copy of form 18 No. NHN/Drugs/11/77 dated 19.7.2011 annexure P15 (16) Copy of form 18 No. NHN/Drugs/11/78 ::: Downloaded on - 15/04/2017 20:47:59 :::HCHP 13 dated 19.7.2011 annexure P16 (17) Copy of form 18 No. .
NHN/Drugs/11/79 dated 19.7.2011 annexure P17 (18) Copy of form 18 No. NHN/Drugs/11/86 dated 19.7.2011 annexure P18 (19) Receipt by government analyst dated 27.7.2011 Annexure P19 (20) Copy of report No. CTL-Drugs/98-7562 of dated 17.10.2011 annexure P20 (21) Copy of report No. CTL-
Drugs/98-7565 dated 17.10.2011 annexure P21 (22) Copy of report No. CTL- Drugs/98-7568 dated 17.10.2011 Annexure rt P22 (23) Copy of report No. CTL-Drugs/98-7574 dated 17.10.2011 annexure P23 (24) Copy of report No. CTL-
Drugs/98-7571 dated 17.10.2011 annexure P24 (25) Spot memo dated 21.07.2011 annexure P25 (26) Copy of letter No HFW-NHN( Drugs) 2011-80 dated 21.7.2011 Annexure P26 (27) Copy of letter vide No. DCO/11/SPL-I dated 21.07. 2011 Annexure P27 (28) Documents as submitted by Drugs Control Officer Ambala annexure P28 and P29 (29) Copy of letter along with other documents supplied by firm M/s Lincoln Pharmaceuticals Limited to Drugs Inspector District Sirmour at Nahan HP annexure P30 (1) to P 30(1& total 17pages (30) Letter No. NHN/Drugs/12/56 dated 05.06.2012 annexure P31 (31) Postal receipt No. EE762953394 dated ::: Downloaded on - 15/04/2017 20:47:59 :::HCHP 14 06.06.2012 annexure P32 (32) Undelivered envelop annexure .
P33 (33) Copy of letter No. NHN/Drugs/12/57 dated 05.06.2012 annexure P34 (34) Postal receipt No. EE EE762953403 dated 06.06.2012 annexure P35 (35) Reply of firm M/s M Sea Pharmaceuticals annexure P36 (36) Memo of prepared by police on dated 21.8.2011 annexure P37 (37) Rent deed annexure P38 (38) Credit certificate dated 18.07.2011 annexure P39 (39) Memo prepared by police on rt dated 07.09.2011 annexure P40 (40) Consignment paper No. 218528 dated 25.06.2011 annexure P41 (41) Form 26 dated 27.6.2011 Annexure P42 (42) Invoice No. 1055 dated 26.6.2011 annexure P43 (43) Documents relating to FIR No.110 dated 14.7.2011 annexure P44(1) to P44(17). (44) Documents and information procured from Drugs Licensing Authority Solan vide letter No. HFW-H(Drugs) 2007/291/1896 dated 28.7.2011 annexure P45. (45) Letter No. HFW-H (Drugs) 2007/291/1536 dated 26.8.2011 annexure P46 (46) Office order dated 30.7.2011 annexure P47 (47) Letter No. HFW-H(Drugs) 2007/291/1895 dated 28.7.2011 annexure P48 (48) Letter No. NOS/DKN/Information/2011 dated 3.8.2011 annexure P49 ::: Downloaded on - 15/04/2017 20:47:59 :::HCHP 15 (49) Details of electricity bills annexure P50 (50) Letter No. .
EXN-NHN-Excise-2011/12-12267 dated 25.8.2011 annexure P51. (51) Letter No. NHN/drugs/13/09 dated 20.4.2013 annexure P74 (52) Prosecution sanction dated 14.8.2013 annexure P75. It is held that after perusal of above stated of documents there are sufficient grounds to summon co-
accused Atul Kumar Gupta as co-accused under Drugs and Cosmetics Act 1940.
rt
14. It was held in case reported in AIR 1976 SC 1947 title Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others that at the stage of issuing process Magistrate is mainly concerned with allegations made in complaint and documents annexed with complaint. It was held that Magistrate should prima facie satisfy whether there are sufficient grounds for proceeding against accused or not.
It was held that Magistrate should not enter into detailed discussions of merits or demerits of the case. It was held that accused has no locus standi and accused is not entitled to be heard whether process should be issued against accused or not. See AIR 1963 SC 1430 title Chandra Deo Singh Vs. Prokash Chandra Bose. See AIR 2016 SC weekly 122 title ::: Downloaded on - 15/04/2017 20:47:59 :::HCHP 16 Madan Razak Vs. State of Bihar. Point No.1 decided in .
negative.
Point No.2(Final Order).
15. In view of findings on point No.1 petition filed under Section 482 Cr.PC is dismissed. Order of learned Trial of Court dated 20.2.2014 is affirmed. Observation made hereinabove is strictly for the purpose of deciding present petition and shall not effect merits of the case in any rt manner. Parties are directed to appear before learned Trial Court on 29.7.2016. File of learned trial Court along with certify copy of order be sent back forthwith. Cr.MMO No. 76 of 2015 is disposed of. All pending application(s) if any are also disposed of.
(P.S.Rana), Judge.
July 13, 2016(R).
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of rt ::: Downloaded on - 15/04/2017 20:47:59 :::HCHP