Himachal Pradesh High Court
Meenakshi Jain vs Maman Chand Jain And Others on 1 August, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
Reportable
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 1st DAY OF AUGUST, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) U/S 482 CR.P.C NO.433 of 2019
Between:
MEENAKSHI JAIN, WIFE OF SH. MAMAN
CHAND JAIN, HOUSE NO.393, SECTOR
8, HUDA COLONY, AMBALA (HARYANA).
....PETITIONER
(BY MR. RAJNISH MANIKTALA SENIOR ADVOCATE
WITH MR. NARESH VERMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS CHIEF SECRETARY,
H.P. SECRETARIAT, SHIMLA-171002
(H.P.)
2. DRUGS INSPECTOR, NAHAN,
DISTRICT SIRMOUR, (H.P.)
....RESPONDENTS
(MR. SUDHIR BHATNAGAR AND MR.
NARENDER GULERIA, ADDITIONAL
ADVOCATE GENERALS WITH MR.
SUNNY DHATWALIA, ASSISTANT
ADVOCATE GENERAL)
This petition coming on for orders this day, the Court passed the
following:
O R D E R
By way of instant petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 2 quashing of complaint No. 48/3 of 2016, titled as State of Himachal Pradesh versus Maman Chand Jain and others, pending in the Court of learned Judicial Magistrate, 1st Class, Nahan, Sirmour, H.P. .
2. Precisely, the facts of the case as emerge from the record are that petitioner's firm i.e. M/s Vardhman Pharma was granted licence to manufacture, for sale or distribution of drugs specified in Schedule C,C(I) (excluding those specified in Schedule X) vide orders dated 10.12.2004 and such licence was valid from 10.12.2004 to 9.12.2009, as is evident from copy of licence placed on record as Annexure P-1. Apart from above, M/s Vardhman Pharma was granted licence to manufacture and sale of drugs other than those specified in Schedule C & C(1) vide order dated 10.12.2014 and such, licence was also valid with effect from 10.12.2004 to 9.12.2009, as is evident from copy of licence placed on record as Annexure P-2.
3. A complaint under Section 32 of Drugs & Cosmetics Act, 1940 (for short 'Act') was filed by the respondents against the present petitioner and other, wherein it came to be alleged that on 28.09.2013, the premises of M/s Vardhman Pharma were raided by the Drugs Inspector alongwith other members of the raiding party and during inspection, it was found that drugs were being manufactured in the premises without licence, which expired on 9.12.2009. Apart from above, raiding team also drawn 19 samples of the drugs and one portion of sample was handed over to Sh. Rohit Kumar, an employee of the petitioner company and 19 samples of the drugs were handed over to Government Analyst for analysis on 01.10.2013, who vide report dated ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 3 26.11.2013 reported that 12 samples were found to be not of standard quality and 7 samples were found to be of standard quality.
Learned Judicial Magistrate, 1st class, Nahan, District Sirmour, .
4. H.P., having taken cognizance of aforesaid complaint issued process against the petitioner Smt. Meenakshi Jain, proprietor of the firm, as is evident from zimini orders placed on record as Annexure P-9(colly). Being aggrieved and dissatisfied with the issuance of process, petitioner has approached this Court in the instant proceedings, praying therein to set-aside the complaint as well as summons issued against her.
5. Challenge to the summoning process has been laid primarily on two grounds;(i) Since report of laboratory, which had tested the sample was not supplied to the petitioner, she was unable to file objections against the same, as a result of which, report given by Chemical Analyst shall be read against her; (ii) Since she was unable to dispute the report by requesting the testing of the samples by Central Drugs Labs in terms of Section 25 of the Act coupled with the fact that samples drawn at the time of raid now have expired, no chemical test can be conducted on the request, if any, made by the petitioner; and (iii) Averments contained in the complaint that petitioner had no licence to manufacture the drug is totally contrary to the record.
6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that facts, as noticed hereinabove, are not in dispute, rather stand admitted in the reply filed by the respondents. The complaint, which is sought to be quashed in the instant proceedings, reveals that on 28.09.2013, Drug Inspector of Industrial area, ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 4 Kala Amb, District Sirmour, H.P., raided the premises of M/s Vardhman Pharma alongwith raiding team constituted by the State Drug Controller and found that .
in factory premises drugs were being manufactured without there being any valid licence issued in the name of proprietor of the firm concerned. Raiding team found that drug manufacturing licence stood expired on 9.12.2009 and firm had not applied for renewal of the licence even after almost three years of the expiry of valid licence and as such, firm was found to have contravened the provisions of Section 18(c) of the Act. A huge stock of the raw materials, packing materials bearing the name and address of the firm M/s Vardhman Pharma were found lying inside the premises. Though, Smt. Meenakshi Jain, proprietor of the concerned firm was not present in the factory premises during the raid, but she was requested to join the search and seizure procedure, however, she could not come present on account of her being out of station.
Drug inspector then randomly took 9 drugs' samples of the finished product in form 17 dated 28.09.2013, after offering fair price of the same. The sample was numbered as NHN/13/53 to NHN/13/61. One portion of each of all the nine samples alongwith one copy each of Form-17 and Form 17-A were handed over to the representatives of the petitioner namely, Rohit Kumar and Sumit Kumar and the receipt was taken on Form 17 and Form 17-A. Besides above, Drug Inspector drew 10 more samples in Form-17, qua which, he issued receipt on Form-17A, dated 29.09.2013. One portion each of all the ten samples alongwith one copy of each of Form-17 and Form 17A were handed over to the representatives of the accused. All the 19 samples numbered from NHN/13/53 to NHN/13/71 were delivered by hand to Govt. Analyst, CTL ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 5 Kandaghat on 19 separate Forms numbered as NHN/Drugs/13/180 to NHN/Drugs/13/198, dated 01/10/2013 in a sealed parcel. One copy each of all .
the 19 samples in Forms 18 was also supplied separately in a sealed envelope to the said Govt. Analyst and receipt dated 4.10.2013 in that regard was issued by the Government Analyst. In the aforesaid background, Drug Inspector after having found petitioner i.e. proprietor contravened provisions contained in Section 18(a)(i), Section 17, Section 17B punishable under Section 27(c) and 27(d) of the Drugs and Cosmetics Act, 1940, Section 18(c) punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 and Section 18(b) punishable under section 27(d) of the Drugs and Cosmetics Act, 1940 filed complaint in the Court of learned Judicial Magistrate, 1st Class, Nahan, District Sirmour, H.P. on 29.02.2016 .
7. Learned trial Court taking cognizance of averments/ allegations contained in the complaint issued process against the petitioner herein, but subsequently, on account of repeated absence from the trial, petitioner was declared as proclaimed offender. However, order declaring the petitioner as proclaimed offender was stayed by this Court vide order dated 30.07.2019 in the instant proceedings. Since vide order dated 30.07.2019, order dated 9.5.2019 passed learned Judicial Magistrate, 1st Class Nahan, declaring the petitioner to be proclaimed offender was stayed by this Court, no further progress has been made in the complaint by the court below.
8. Mr. Rajnish Maniktala, learned Senior Counsel representing the petitioner duly assisted by Mr. Naresh Verma, Advocate, vehemently argued that complaint sought to be quashed in the instant proceedings is not legally ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 6 sustainable because allegations contained in the same are totally contrary to the factual position available on record. Learned counsel representing the .
petitioner while making this Court to peruse the various documents adduced on record, vehemently argued that at the time of inspection, petitioner had valid licence to manufacture the drugs and as such, there was no occasion for the Drug Inspector to submit complaint that factory owned and possessed by the petitioner was being run without there being any valid licence. Learned counsel representing the petitioner while inviting attention of this Court to peruse Section 25 of the Act contended that since copy of report submitted by chemical analyst never came to be furnished to the petitioner, she was unable to file objections against the same, which right was otherwise available to her.
Section 25(4), which provides that party not satisfied with the report of the chemical analyst, can make a request to send the sample to Central Government Lab. He further submitted that by the time complaint was filed by the complainant all the drugs seized at the time of raid had rendered expired and as such, could not be sent to Central Government Lab for testing on the request, if any, made by the petitioner under Section 25(4) of the Act. While inviting attention of this Court to peruse Annexures P-6 to P-8, learned counsel representing the petitioner argued that though initially sum of Rs.11400/ was deposited by the petitioner for grant of permission to manufacture additional products, but since such prayer of her was not accepted, she vide communication dated 6.8.2007, specifically wrote to the Controller-cum-
Licensing Authority, Himachal Pradesh for renewal of drug licence No.MNB/04/89 and MB/04/90, specifically stating therein that sum of ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 7 Rs.11400/- deposited on 21.02.2006 alongwith Rs. 3900/-, which she deposited vide challan No.22,6.8.2007, be construed to be deposited by her for renewal .
of her licence, as detailed hereinabove. Learned counsel representing the petitioner submitted that since no decision, if any, ever came to be taken on the aforesaid request made by the petitioner, licence, as detailed hereinabove, was deemed to have been renewed,as has been provided under Rule 72 and 77 of the Act.
9. Mr. Narender Guleria, learned Additional Advocate General while refuting aforesaid submissions made on behalf of the learned counsel representing the petitioner argued that there was no requirement, if any, for Drug Inspector to supply the copy of report submitted by Chemical Analyst, rather same was to be collected by the petitioner, who was aware of the factum with regard to sending of the samples to the lab. While fairly acknowledging that at the time of filing of the complaint, all the drugs seized from the premises of the factory owned by the petitioner had expired, learned Additional Advocate General submitted that otherwise also there is/was no occasion and requirement, if any, to get drugs, as detailed hereinabove, retested in view of specific report submitted by Government Analyst. Learned Additional Advocate General further submitted that it is admitted case of the petitioner that sum of Rs. 11400/- was deposited by her on 21.02.2006 for grant of licence to manufacture additional items and such prayer of her was considered and allowed. He further submitted that additional amount of Rs.3900/- was deposited by the petitioner for grant of permission to manufacture 38 additional items and such prayer of her was also allowed. Though, learned Additional ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 8 Advocate General was unable to produce any documents with regard to permission granted by the respondents to the petitioner for manufacturing of .
additional items, however, to substantiate his aforesaid claim, he placed heavy reliance upon Annexure R-1 and R-2 i.e noting given on the file by the competent authority with regard to permission granted to the petitioner for manufacturing additional items. Learned Additional Advocate General also invited attention of this Court to Annexure R-1 i.e. letter sent to the petitioner apprising therein factum with regard to expiry of licence No.MNB/04/89 & MB/04/90 dated 9.12.2009.
10. Before considering the rival submissions having been made by learned counsel representing the parties vis-à-vis prayer made in the instant petition, this Court at the first instance deems it necessary to discuss/elaborate scope and competence of this Court to quash the complaint as well as consequent proceedings, if any, pending in the competent court of law while exercising power under Section 482 Cr.P.C.
11. A three-Judge Bench of the Hon'ble Apex Court in case titled State of Karnataka vs. L. Muniswamy and others,1977 (2) SCC 699, held that High Court while exercising power under Section 482 Cr.PC is entitled to quash the proceedings, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.
12. Subsequently, in case titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335,the Hon'ble Apex Court while elaborately discussing the scope and competence of High Court to quash ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 9 criminal proceedings under Section 482 Cr.PC laid down certain principles governing the jurisdiction of High Court to exercise its power. After passing of .
aforesaid judgment, issue with regard to exercise of power under Section 482 Cr.PC, again came to be considered by the Hon'ble Apex Court in case bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017) titled Vineet Kumar and Ors. v. State of U.P. and Anr., wherein it has been held that saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. court proceedings ought not to be permitted to degenerate into a weapon of harassment or prosecution.
13. The Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, relying upon its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, reiterated that High Court has inherent powers under Section 482 Cr.PC., to quash the proceedings against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection. In the aforesaid judgment, the Hon'ble Apex Court concluded that while exercising its inherent jurisdiction under Section 482 of the Cr.PC,, Court exercising such power must be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. Besides above, the Hon'ble Apex Court further held ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 10 that material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations .
as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled as Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex Court has held as under:-
"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under:
(2013) 3 SCC 330, paras 29-30)
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C . the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 11 should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the .
accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal -proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
14. It is quite apparent from the bare perusal of aforesaid judgments passed by the Hon'ble Apex Court from time to time that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 12 is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him/her due to private and personal grudge, .
High Court while exercising power under Section 482 Cr.PC can proceed to quash the proceedings.
15. Hon'ble Apex Court in case titled Amit Kapoor v. Ramesh Chander and Anr, (2012) 9 SCC 460 held that framing of a charge is an exercise of jurisdiction by the trial Court in terms of Section 228 of the Cr.PC unless the accused is discharged under Section 227 Cr.PC. The Hon'ble Apex Court has further held that under the Section 227and 228 Cr.PC, the Court is required to consider the 'record of the case' and the documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall proceed to frame the charge. The Hon'ble Apex Court has further held that once the facts and ingredients of the Section concerned exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. Most importantly, the Hon'ble Apex Court in the aforesaid judgment has concluded that the satisfaction of the Court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. At this stage, this court deems it fit to reproduce the following paras of aforesaid judgment having been passed by the Hon'ble Apex Court as follows:-
27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 13 jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in .
exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 14 concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the .
investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist."
16. The Hon'ble Apex Court in judgment titledL. Krishna Reddy v.
Stateby Station House Officer and Ors, (2014) 14 SCC 401, has held that Court is neither substitute nor an adjunct of the prosecution, rather once a case is presented to it by the prosecution its bounden duty is to sift through the material to ascertain whether prima-facie case has been established, which would justify and merit the prosecution of a person. The relevant paras are as follows:-
"10. Our attention has been drawn to Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia as well as K. Narayana Rao but we are unable to appreciate any manner in which they would ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 15 persuade a court to continue the prosecution of the parents of the deceased. After considering Union of India v. Prafulla Kumar Samal, this Court has expounded the law in these words:
(Stree Atyachar Virodhi Parishad case, SCC p. 721, para 14) "14. ... In fact, Section 227 itself contains enough guidelines as .
to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that r there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into"
11. The court is neither a substitute nor an adjunct of the r prosecution. On the contrary, once a case is presented to it by the prosecution, its bounden duty is to sift through the material to ascertain whether a prima facie case has been established which would justify and merit the prosecution of a person. The interest of a person arraigned as an accused must also be kept in perspective lest, on the basis of flippant or vague or vindictive accusations, bereft of probative evidence, the ordeals of a trial have to be needlessly suffered and endured. We hasten to clarify that we think the statements of the complainant are those of an anguished father who has lost his daughter due to the greed and cruelty of his son-in-law. As we have already noted, the husband has taken his own life possibly in remorse and repentance. The death of a child even to avaricious parents is the worst conceivable punishment."
17. Aforesaid exposition of law laid down by Hon'ble Apex Court from time to time, clearly reveal that High Court while exercising power under Section 482 Cr.P.C can proceed to quash and set-aside the complaint as well as summoning order, if it is satisfied that evidentiary material adduced on record would not reasonably connect the accused with the crime and if trial in such situation is allowed to continue, person arrayed as an accused would be unnecessarily put to arduous of the protracted trial on the basis of flippant and vague evidence.
::: Downloaded on - 24/12/2022 09:36:14 :::CIS 1618. Before ascertaining the correctness and genuineness of the rival submissions made on behalf of learned counsel for the parties vis-à-vis prayer .
made in the instant petition, it would be apt to take note of Section 18 of the Act, which reads as under:-
"18. Prohibition of manufacture and sale of certain drugs and cosmetics.--
From such (date) as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf--
(a) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute--
[(i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious;
(ii) any cosmetic which is not of a standard quality or is rmisbranded, adulterated or spurious;]
(iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof 3 [the true formula or list of active ingredients contained in it together with the quantities thereof];
(iv) any drug which by means of any statement design or device accompanying it or by any other means, purports or claims 7 [to prevent, cure or mitigate] any such disease or ailment, or to have any such other effect as may be prescribed;
(v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended;
vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder;
(b) [sell or stock or exhibit or offer for sale,] or distribute any drug 9 [or cosmetic] which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder;
(c) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute any drug 9 [or cosmetic], except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter:
::: Downloaded on - 24/12/2022 09:36:14 :::CIS 17Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis:
.
Provided further that the [Central Government] may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the [manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale] or distribution of any drug or class of drugs not being of standard quality."
19. Careful perusal of aforesaid provisions of law reveals that no person can manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale or distribute, any drug which is not of standard quality and misbranded and spurious. Section 18(c) specifically talks about the issuance of licence for manufacture of drugs. In exercise of the powers conferred under the Act, Drugs & Cosmetics Rules, 1945 have been framed, wherein Rule 69 provides that an application for grant of a licence to manufacture and sale of drugs other than those specified in Schedule C & C(I) is to be made to the Licensing Authority appointed by the State Government. Such application is submitted in the prescribed format as provided under the rules. Rules 69 is reproduced hereinbelow:-
"69. Application for licence to manufacture drugs other than those specified in Schedules C and C(1) to the Drugs and Cosmetics Rules:(1)Application for grant or renewal of licence to manufacture for sale 3[or for distribution] of drugs, other than those specified in Schedules C and C(1) shall be made to the licensing authority appointed by the State Government for the purpose of this Part (hereinafter in this Part referred to as the licensing authority) and shall be made--
(a) in the case of repacking of drugs excluding those specified in Schedule X for sale or distribution in Form 24B;
::: Downloaded on - 24/12/2022 09:36:14 :::CIS 18(b) in the case of manufacture of drugs included in Schedule X in Form 24F;
(c) in any other case, in Form 24.
.
(2) 5[(a) Every application in Form 24B shall be made up to ten items for each category of drugs categorised in Schedule M and shall be accompanied by a licence fee of rupees five hundred plus and an inspection fee of rupees two hundred for every inspection or for the purpose of renewal of the licence.
(b) Every application in Form 24F shall be made up to ten items for each category of drugs categorised in Schedule M and shall be accompanied by a licence fee of rupees six thousand and an inspection fee of rupees one thousand and five hundred for every subsequent inspection or for the purpose of renewal of licence.
(c) Every application in Form 24 shall be made upto ten items for each category of drugs categorised in Schedule M and Schedule MIII and shall be accompanied by a licence fee of rupees six thousand and an inspection fee of rupees one thousand and five hundred for every inspection or for the purpose of renewal of the licence.] (3) If a person applies for the renewal of a licence after the expiry thereof but within six months of such expiry the fee payable for the renewal of such licence shall be:-
[(i) in the case of Form 24B a licence fee of rupees five hundred plus an additional fee at the rate of rupees two hundred and fifty per month or part thereof in addition to an inspection fee of rupees two hundred;
(ii) in the case of Form 24F a licence fee of rupees six thousand plus an additional fee at the rate of rupees one thousand per month or part thereof in addition to an inspection fee of rupees one thousand;
(iii) in the case of Form 24 a licence fee of rupees six thousand plus an additional fee at the rate of rupees one thousand per month or part thereof in addition to an inspection fee of rupees one thousand and five hundred.] (4) A fee of 5[rupees one hundred shall be paid] for a duplicate copy of the licence issued under clause (a), clause (b) or clause (c) of sub-
rule (1) if the original is defaced, damaged or lost.
::: Downloaded on - 24/12/2022 09:36:14 :::CIS 192[(5) Applications for manufacture of more than ten items of each category of drugs as categorized under Schedule M and M-III or for manufacture of additional items of drugs by licensees in Form 24 or .
Form 24F shall be accompanied by an additional fee at the rate of rupees three hundred for each additional item of drug. Applications in Form 24B for licence to manufacture for sale and distribution for repacking for more than 10 items of each category or for manufacture of additional item of drug shall be accompanied by additional fee of rupees one hundred for each additional item of drugs as cetegorized in Schedule M and M-III.
3[(6) Where an application under this rule is for the manufacture of drug formulations falling under the purview of new drug as defined in rule 122E, such application shall also be accompanied with approval, in writing, in favour of the applicant, from the licensing authority as defined in clause (b) of rule 21.
20. Rule 70 of the Act provides that the licence for manufacture of drugs shall be granted in Form 25 prescribed under the rules. Rules 70 of the Act is reproduced as under:-
"70. Form of licence to repack or manufacture drugs other than those specified in Schedules C and C(1) (1) .--Licences for repacking of drugs against application in Form 24B shall be granted in Form 25B, licences for manufacture of drugs included in Schedule X against application in Form 24F shall be granted in Form 25F and licences for manufacture of drugs against application in Form 24 shall be granted in Form 25."
21. Similarly, Rule 72 provides for duration of the licenc , which reads as under:-
"72. Duration of licence.--An original licence or a renewed licence in Form 25 2[Form 25B or Form 25F] unless sooner suspended or cancelled shall be 3[valid for a period of five years on and from the date on which] it is granted or renewed:::: Downloaded on - 24/12/2022 09:36:14 :::CIS 20
Provided that if the application for the renewal of a licence is made before its expiry, or if the application is made within six months of its expiry, after payment of additional fee, the licence .
shall continue to be in force until orders are passed on the application and the licence shall be deemed to have expired if the application for its renewal is not made within six months of its expiry.
22. Proviso to aforesaid provisions clearly provides that if an application for renewal of licence is made before its expiry, or if the application is made within six months of its expiry, after payment of additional fee, the licence shall continue to be in force until orders are passed on the application and the licence shall be deemed to have expired if the application for its renewal is not made within six months of its expiry. Rule 73 provides that the certificate of renewal shall be issued in a particular form i.e. Form 25 or form 25-F shall be issued in Form 26 for form 26-F respectively. For the purposes of licence to manufacture for sale and distribution of drugs specified in Schedule C & C(i), application form is to be submitted in accordance with Rule 75, which is para-materia to the Rules 69 to 72,which provides for application for licence to manufacture drugs other than those specified in Schedule C & C(1) to the Drugs and Cosmetics Rules.
23. In the case at hand, specific allegation against the petitioner as contained in the complaint is that drugs specified in Rule C & C(1) of the Drugs & Cosmetics Rules and drugs other than those specified in schedule C and C(1) were being manufactured without there being any valid licence. Case of the petitioner is that she had valid licence to manufacture both type of the drugs, as detailed hereinabove, and as such, no case much less under Section ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 21 18-1 and 18-C is made out against her. There is no dispute that petitioner had licence to manufacture the drugs, as detailed hereinabove, and same was valid .
till 9.12.2009. Though, claim of the petitioner is that she had applied for renewal of the aforesaid licence well within time, but it has been categorically stated by the respondents that no prayer ever came to be made on behalf of the petitioner for renewal of the licence and as such, at the time of raid, drugs were found to be manufactured without there being any licence.
24. Petitioner with a view to substantiate her claim with regard to application made by her for renewal, specifically placed reliance upon the communication dated 6.8.2007 (Annexure P-5), perusal whereof reveals that as per discussion with State Drug Controller-cum-licensing Authority M/s Vardhman Pharma deposited sum of Rs. 3900/- vide challan No.22, dated 6.8.2007 in head of 0210-01-107-01 for renewal of drug manufacturing licence No.MNB/04/89 and MB/04/90. Though, aforesaid communication clearly reveals that such prayer was made in the year, 2007, whereas licence sought to be renewed was actually to expire in the month of December, 2009.
25. Learned counsel representing the petitioner argued that though initially sum of Rs.11400/- was deposited on 21.02.2006 with a request to grant permit to manufacture 14 additional items, but since such payer of her was not allowed, sum of Rs.3900/- as advised by the State Drugs Controller-
cum-Licensing Authority was deposited over and above Rs.11400/- for renewal of manufacturing licence No. MNB/04/89 and MB/04/90, which was otherwise to expire in the month of December, 2009. Careful perusal of aforesaid ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 22 communication dated 6.8.2007, addressed to State Drugs Controller-cum-
Licensing Authority (Annexure P-5) clearly reveals that M/s Vardhman Pharma .
while depositing Rs.3900/- vide challan No.22, dated 6.8.2007 categorically made request to grant renewal of license manufacturing licence No. MNB/04/ 89 and MB/04/90 valid upto 9.12.2009.
26. Though, perusal of communication dated 10.12.2009 (Annexure P-7), whereby prayer made on behalf of the petitioner for renewal of licence came to be allowed and licence of the petitioner was renewed from 10.12.2009 to 9.12.2014, as is evident from Annexure P-7 clearly reveals that licence was renewed but since respondents specifically claimed in their reply that no licence was ever renewed and documents placed on record are forged, this Court passed following order on 28.06.2022:-
"Respondents No. 1 and 2 in their reply have stated in ground 13 (d) that petitioner has fabricated the certificate and no such document was issued by the Drugs Licensing Authority. Besides above, it has been further stated that Annexures P-4, 5, 6 and 7 were also forged and fake.
Learned Additional Advocate General is directed to file affidavit whether action, if any, ever came to be taken against the petitioner for her having filed forged/fabricated document, if any, within one week. List on 13.7.2022".
27. Pursuant to aforesaid order dated 28.06.2022, respondents filed affidavit reiterating therein that aforesaid documents Annexures P- 5 to 7 placed on record are forged and in that regard FIR No. 70/2013 dated 29.9.2013 under Sections 18(c), 18-B, 18(a) (i) r/w Rule 17, 17-B, 36 AC, r/w sub section 3 of section 22, clause (c) of section 27 and Section 28-A of the Drugs and Cosmetics Act, 1940 and Section 420 of IPC was registered at police Station Kala Amb, but subsequently on the basis of the opinion rendered by ADA Nahan, entire file relating to the case was returned to the Department ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 23 with the observations that no case muchless under Section 468, 420, 471 and 467 is made out and Department is advised to file complaint under appropriate .
provision of law in the competent court of law.
28. Interestingly, even alongwith aforesaid compliance affidavit, no cogent and reliable documents ever came to be placed on record by the respondent-Department to refute the claim of the petitioner that application for renewal of the license was filed well within time and same was renewed for a period of five years. In response to aforesaid compliance affidavit, petitioner filed affidavit enclosing therewith information received under Right to Information Act (Annexure A-1 available at page 263 of the paper book), perusal whereof reveals that since no case was found muchless under Sections 467,468 and 471of IPC, case under Sections 18(c), 18-B, 18(a) (i) r/w Rule 17, 17-B, 36 AC, r/w sub section 3 of section 22, clause (c) of section 27 and Section 28-A of the Drugs and Cosmetics Act, 1940 and Section 482 was filed before Judicial Magistrate, 1st Class Nahan. At this stage, learned Senior counsel representing the petitioner argued that since during investigation conducted by the police no case muchless under Section 468, 420, 467, 471 of IPC was found against the petitioner, respondents are estopped from claiming that documents placed on record with regard to issuance of renewal of licence for a period of five years vide communication dated 10.12.2009 (Annexure P-5 to 7) are forged and fabricated.
29. Interestingly, in the case at hand, though respondents have not made specific mention, if any, with regard to non-availability of record with effect from 2004 to 2011 of issuance/renewal of licence on the application, if ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 24 any, made by the petitioner and other similarly situate persons, but petitioner by way of rejoinder to the reply filed by the respondents has placed on record .
documents procured by her under Right to Information Act, perusal whereof clearly reveals that that no record with regard to certified copies of Form 27, form 24 and list of documents, issued/supplied by M/s Vardhman Pharma, certified copies of inspection report prepared by the department at the time of issuance of licence for DML MNB/04/89, DML MB/04/90 and certified copies of additional items 18, dated 17.12.2004, product permission as well as other documents, as detailed in application filed under Right to Information Act (Annexure P-12 available at page No.137 of the paper book) was available with the respondents. Since respondents did not have record with regard to renewal of licence for a period specified hereinabove, they cannot be permitted at this stage to claim that documents showing renewal of licence for a period of five years are forged, especially when such charge has been already dismissed by the police while returning the case file to the department for filing the same in the appropriate court of law. Most importantly, ADA Nahan, while advising respondent department to file complaint in the appropriate court of law for the charges/allegations contained in the complaint, specifically stated in the opinion that no case muchless under sections 467,468 and 471of IPC, is made out and this court has reasons to presume and believe that opinion of District Attorney must be based upon the record available with the department. Since ADA Nahan was unable to find out record, if any, with regard to issuance of licence and application submitted by the parties, for a period specified hereinabove, he ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 25 categorically opined that no case under Sections 467,468 and 471of IPC, is made out against the petitioner.
.
30. This Court after having carefully perused the Annexures P-5 to P-7 is fully convinced that petitioner had valid licence to manufacture the drugs w.e.f.10.12.2009 to 9.12.2014 and as such, allegations contained in the complaint sought to be quashed that petitioner was not having valid licence to manufacture the drugs and drugs were being manufactured without there being any licence, is not sustainable and deserves to be quashed and set-aside.
Similarly careful perusal of Section 25 ( 3&4) reveals that any document purporting to be a report singed by a Government analyst shall be evidence of facts stated therein and as such evidence shall be conclusive unless the person from whom the sample was taken has within twenty-eight days of the receipt of a copy of the report, notified in writing to the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contraversion of the report, meaning thereby after submission of report duly singed by Government Analyst, person from whom samples were drawn, has a remedy of laying challenge to the report either before inspector or the Court where proceedings are pending and in that situation, such samples are required to be sent to Central Drugs Laboratory, as is provided under Section 25(4) of the Act. Section 25(4) of the Act is reproduced as under:-
(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused: cause the sample of the drug 116 [or cosmetic] produced before the Magistrate under sub-section (4) of section 23 to be ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 26 sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
.
31. Admittedly in the case at hand, reports signed by Government Analyst qua the samples drawn from the premises of the petitioner were not made available to her, enabling her to raise objections, if any, with regard to the same. It has been vehemently argued by the respondents that it was not the duty of the respondents to provide such report, rather same was to be collected by the person, from whose premises samples were drawn, meaning thereby, no such report was made available to the petitioner by respondent-Department. If Section 25, as taken note hereinabove, is read in its entirety, nowhere suggests that report submitted by Govt. Analyst is to be procured by the persons from whose premises samples were drawn, rather same is required to be made available to the person, from whose premises samples were drawn, enabling him/her to notify his/her intention to adduce evidence in contravention of the report.
32. At the cost of repetition, it is stated that in case opportunity, as provided under Section 25(3), is provided to the person concerned, he/she can always get the sample retested from Central Drugs Laboratory and then such report shall be conclusive. In the case at hand, procedure as prescribed under Section 25(3) and 25(4) never came to be applied/followed, as a consequence of which, petitioner, from whose premises samples were drawn, was denied opportunity of raising objections, if any, with regard to correctness of the report submitted by the Government analyst, which otherwise in the event of non-filing ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 27 of objections would be conclusive and shall be read against the person concerned. Had the Department provided copy of report submitted by .
Government analyst to the petitioner at first instance, she could raise objections with regard to correctness of the same and in that event, matter was to be referred to the Central Drugs Laboratory. Though, learned Additional Advocate General vehemently argued that aforesaid omission, if any, on the part of respondents can be rectified at this stage, but since it is not in dispute that at the time of filing of the complaint, all the drugs seized from the premises of the petitioner had expired, there is otherwise no occasion at this stage to draw samples as per Section 25(3) and send the same to Central Laboratory.
33. Since, the petitioner was deprived of her valuable right under Sections 25(3) and 25 (4) of the Act, initiation of proceedings under section18(c), 18-B, 18(a) (i) r/w Rule 17, 17-B, 36 AC, r/w sub section 3 of section 22, clause (c) of section 27 and Section 28-A of the Drugs and Cosmetics Act, 1940, are not sustainable. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Medicamen Biotech Limited and another vs. Rubina Bose, Drug Inspector; (2008)7 Supreme Court Cases 196, wherein it has been held as under:-
"19. In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred as the appellant had avoided service of summons on it till 9th May 2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed. Likewise, we observe that the requests for retesting of the drug had ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 28 been made by the appellant in August/September 2001 as would be clear from the facts already given above and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting well within time. We are, therefore, of the .
opinion that the facts of the case suggest that the appellants have been deprived of a valuable right under Section 25(3) and 25(4) of the Act which must necessitate the quashing of the proceedings against them."
34. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in Northern Mineral Limited vs. Union of India and another (2010) 7 Supreme Court Cases 726, wherein it has been held as under:-
"22. From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.
23. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before Court where proceeding in respect of the samples is pending.
Further the Court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused.
24. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 29 sample for analysis and report to Central Insecticides Laboratory.
25. It may be mentioned herein that shelf life of the insecticides had expired even prior to the filing of the .
complaint. The position therefore which emerges is that by sheer inaction the shelf life of the sample of insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal prosecution against the appellant to continue shall be futile and abuse of the process of Court.
26. We are distressed to note the casual manner in which the whole exercise has been done. Insecticide Inspector had collected the sample on 10th September, 1993 and sent it to the Insecticide Analyst for analysis and report. Insecticide Analyst submitted its report dated 13th October, 1993. Notice of the report was sent to the appellant on Ist November, 1993, in reply whereof by letter dated 17th November, 1993 it intimated its intention to adduce evidence in controversion of the report. The shelf-life of the pesticide had not expired by that time but expired in February 1994. However, permission to file complaint was given on 23rd February, 1994 and the complaint was actually filed on 16th March, 1994. Had the authority competent to grant consent, given consent and complaint lodged immediately after the receipt of intimation of the accused, sample could have very well sent for analysis and report, before the expiry of shelf-life.
27. It is interesting to note that Section 24(3) and (4) of the Act obliges the Insecticide Analyst and Central Insecticides Laboratory to make the test and analysis and report within thirty days. When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory. All who are entrusted with the implementation of the provisions of the Act, would be well advised to act with promptitude and adhere to the time- schedule, so that innocent persons are not prosecuted and real culprits not left out.
28. In the result, the appeal is allowed, the impugned judgments of the High Court as also that of the Chief Judicial Magistrate refusing to discharge the appellant are set aside and the appellant is discharged of its criminal liability".::: Downloaded on - 24/12/2022 09:36:14 :::CIS 30
35. In case of Medicamen Biotech case(supra), it had been observed with respect to the provisions of Section 25(3) and 25(4) of the Act .
as follows:-
"A reading of the aforesaid provisions would reveal that they lay certain obligations as well as provide safeguards for a person from whom a drug has been seized for analysis or testing as Section 25(3) specifies that unless such a person controverts the correctness of the report submitted by the Government Analyst within 28 days in writing that he intends to adduce evidence to controvert the report of the Analyst, it would be deemed to be conclusive evidence of the quality of the drug whereas sub-section (4) of Section 25 obliges the Magistrate on the request of the complainant or the accused or on in his own motion to send the fourth sample which has been disputed for fresh testing to the Director of the Central Drugs Laboratory."
36. In view of the detailed discussion made herein above and law taken into consideration, there is sufficient ground for this Court to exercise its inherent jurisdiction under Section 482 Cr.P.C, for quashing of complaint and consequent criminal proceedings against the petitioner, to prevent abuse of process of law and to prevent unnecessary harassment to the petitioner against whom there is no evidence to connect them with the commission of offences as incorporated in the complaint. Otherwise also, continuance of the criminal proceedings against the petitioner in the present case would be a sheer wastage of time of the learned trial Court and the same would amount to subjecting the petitioner to unnecessary and protracted ordeal of trial, which is bound to culminate in acquittal.
37. Consequently, in view of the above, present petition is allowed and complaint No.48/3 of 2016, tilted State of Himachal Pradesh versus Maman Chand Jain & others, pending in the Court of learned Judicial ::: Downloaded on - 24/12/2022 09:36:14 :::CIS 31 Magistrate, 1st Class, Nahan, District Sirmour, H.P. (Annexure P-8), is quashed and set-aside, as a consequence of which, orders dated 30.11.2016 and .
9.05.2019 passed by learned Court below are also quashed and set-aside.
Accordingly, present petition is disposed of, so also pending applications, if any.
1st August, 2022 (Sandeep Sharma),
(shankar) Judge
r to
::: Downloaded on - 24/12/2022 09:36:14 :::CIS