Madhya Pradesh High Court
M/S Zenith Drugs Pvt. Ltd. vs The State Of Madhya Pradesh on 16 March, 2017
M.Cr.C. No.5685/2015
16.03.2017
Shri Vijay Assudani, learned counsel for the
petitioners.
Shri Abhishek Soni, learned Dy. G.A. for the
respondent/State.
Heard.
ORDER
This petition has been filed under Section 482 of Cr.p.C. for quashing of the proceedings of criminal case No.17230/2015 registered against the petitioners for the offence u/S.18(a) r/w S.27 (d) of Drugs and Cosmetic Act 1940 ( Hereinafter referred to as 'The act') on the complaint filed by the respondent before CJM- Indore.
2. Brief facts of the case are that on 07.05.2012, the Drug Inspector late R.S.Varandani took a sample of the drug in question namely Cotrimoxazole oral suspension IP manufactured by petitioner No.1 bearing manufacturing date as December 2011 and expiry date as November 2013 from the Government store at Chacha Nehru Hospital, Indore after which the said sample was sent to the Government analyst for analysis who submitted report dated 30.03.2013 mentioning that the said drug was not of standard quality of Sulphamethoxazole is less than the permissible IP limit. On that, drug authorities sent a copy of the said report along with letter dated 10.06.2013 to the petitioners after which respondent filed criminal complaint against the petitioners before Chief Judicial Magistrate, Indore. On that complainant CJM-Indore taking cognizance against the petitioners for the offence u/S.18(a) r/w S.27(d) of the Drug and Cosmetic Act, 1940. registered criminal case No.17230/2015 against the petitioners for offence u/S.18(a) r/w S.27(d) of the 'The Act'. Being aggrieved petitioners filed this petition before this Court.
3. Learned counsel for the petitioners submitted that a Drug Inspector who took the sample has been appointed for entire State of Madhya Pradesh vide notification dated 10/12-02-2009, who was not competent to take the sample because as per provisions of Sections 21 & 22 of the Act, a Drug Inspector having prescribed qualification has to be appointed by the notification in the official gazette for a particular local area which may be assigned to him. While by that notification the Drug Inspector was appointed for whole of the State. He also submitted that mandatory provision of S.23 & 25 of 'The Act' has not been complied by the respondent and valuable rights of the petitioners to get the drug in question analyzed at Central Drug Laboratory have been taken away by the respondent by preparing fabricated documents dated 22.07.2013, which were never served upon the petitioners. He also submitted that the petitioners made a request to get the drug re- analyzed by Central Drug Laboratory within time since they had received the report and sample in question on 24th June and not on 14th june and the date of receipt has been manipulated as 14 th june . Because respondent had failed to comply with their mandatory duty in terms of sections 23 & 25 of the Act the entire prosecution is rendered illegal. He further submitted that Govt. analysis report dated 30.03.2013 also cannot be relied upon and no prosecution based upon said report can be launched since the said report is in violation to Rule 6 and Rule 46 of Drugs and Cosmetics Rules, 1945. In the said report the protocols of test applied by the analyst has not been supplied along with the report. So on that basis also entire prosecution is illegal. According to Rules 6 & 46 of the Act. He further submitted that as per S.34 of 'The Act', if an offence under the Act is committed by a company, then only those directors who are incharge and responsible to the company for the conduct and business of the company as well as company are to be impleaded as accused and an averment in this regard is mandatorily required to be made in the complaint but no such averment is made in the complaint. Learned trial court without paying attention to these facts wrongly took cognizance and prayed for quashing of criminal proceedings on the aforesaid ground.
4. On the other hand Learned counsel for the respondent/State submitted that complaint was filed by the competent person being Drug Inspector in charge of the area who was fully competent to file complaint in terms of Section 32 of the Drugs & Cosmetic Act, 1940. The Drug Inspector took the sample from the Govt. Medical Store, Chacha Nehru Hospital, where the drug in question was available for consumption of public and the Govt. Analyst had followed the procedure prescribed under Rule 46 of the Drug and Cosmetic Rules, 1945. The Rule 46 of the Drugs Rules 1945 prescribe the procedure of receipt of sample and the Analyst had followed the entire procedure prescribed under Rule and issued Form 13. The Competent Authority had duly informed the petitioners' company about the report of the Govt Analyst by letter dated 10.06.2013 and the petitioner's company had received that on 14.06.2013 and the company company applied for re- analysis of the sample after the expiry of prescribed limit of 28 days so the competent authority rejected the prayer. He also submitted that the company is a legal person and each and every director of the company are jointly and severally liable for the each act done by the company. The company cannot be punished in terms of imprisonment so each and every Director of the company is fully responsible for the act of the company. The company itself provided the names of the Directors by their letter dated 04.09.2014 mentioning the names of the Directors and their day to day activities as well as their execution and functioning of the company. The points raised by the petitioners in the instant petition are a matter of fact and have to be decided in the trial after recording of evidence which is pending before the learned Chief Judicial Magistrate, Indore. So at this stage the ground raised by the petitioners need not to be considered and prayed for rejection of this petition.
5. This court has gone through the record and arguments put forth by the parties. Petitioners have challenged the proceedings of criminal case No.17230/2015 mainly on the following grounds:
1. The Drug Inspector, who filed complaint was not duly appointed accordingly to Section 21 and 22 of the Act.
2. Violation of mandatory provisions of S.23 and 25 of the Act taking away the petitioners' right to get the drug in question analyzed at Central Drug Laboratory
3. The report of Govt. analysis dated 30.03.2013 did not mention the protocols of the test that analyst applied and thereby violated the Rule 6 and Rule 46 of Drugs and Cosmetics Rules, 1945.
4. The complaint did not mention how the petitioners no 2 to 4 are related with the company so prosecution against them is not maintainable.
6. Hon'ble Apex Court in the case of State of Haryana and others V/s. Bhajan Lal and others reported in 1992 Supp. (1) SCC 335 held that :-
"The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. The court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. Apex Court in the judgment passed in Rajiv Thapar and others vs. Madan lal Kapoor reported in (2013) 3 Supreme Court Cases 330 also held that High Court in exercise of its jurisdiction under Section 482 Cr.P.C. must make just and rightful choice- at this stage neither truthfulness of the allegations levelled by the complainant can be evaluated nor can weight of defence evidence be determined- Where allegations bring out all ingredients of charge levelled, and material placed before Court prima facie shows truthfulness of allegations, trial must proceed even when accused is successful in raising some suspicion or doubt in allegations levelled- This is so because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same.
7. In the case of Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., (2000) 3 SCC 269 the Supreme Court held as under:
"Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint.
8. Which shows that complaint against present petitioners can of course be quashed, if the allegations made in the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused persons. At present stage this Court is only required to evaluate the material and documents available on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.
10. If in the light of above pronouncement of the apex court we examine the points raised by the petitioners.
11. Regarding first issue,:- although Learned counsel of the petitioners submitted that as per provisions of section 21& 22 of 'The Act' a drug inspector has to be appointed in the official gazette for a particular local area while from the notification filed by the respondent along with the complaint. it appears that Inspector, Ashok Goyal who filed the complaint had been appointed for whole of Madhya Pradesh not for any local area. Thus it is clear that complaint had been filled by an incompetent authority. In this regard He also placed reliance on Bombay High Court's Judgment State of Maharashtra vs. R.A. Chandawarkar and others, 1999 Cri.L.J. 4449 in which Court held that Drugs and Cosmetics Act Section 21- appointment of Drug Inspector- Mode- No official Gazette notification appointing person as a Drug Inspector for particular area- such person cannot claim to be appointed as Drug Inspector for that particular area. But this judgment does not help the petitioners as in the complaint it is mentioned that Ashok Goyal was appointed as Drug inspector by Notification dated 12/02/09 which was published in official Gazette and was posted at Indore by order dated 02/03/10 then by by order dated 09/06/14 He was allotted the area for working in which the place of incident is included. So At this stage the averment of the complaint is treated to be true. Whether his appointment is valid or not is a matter of evidence which can not be decided at this stage.
12. Regarding second issue,:- learned counsel for the petitioners relied upon the apex Court's judgment passed in the case of M/s. Medicamen Biotech Ltd. & Anr. vs. Rubina Bose reported in AIR 2008 SC 1939, and this Court's judgments in Pravinchandra s/o Vallabhdasji Vora vs. State of M.P. 2006(1) MPLJ, 578, Smith Kline Beecham Asia Pvt. Ltd vs. State of M.P. [2006(2) MOLJ, 472], Vishal Pharmaceuticals and another vs. State of M.P. [1999 (2) MPLJ, 378] Safex India (P) Ltd. v. State of M.P. 2001 (1) JLJ 288
13. But these cases are clearly distinguishable on facts as In the instant case respondent clearly averted in his reply that the Competent Authority had duly informed the petitioners' company about the report of the Govt. Analyst by letter dated 10.06.2013 and the petitioner's company had received the report of Govt. Analyst on 14.06.2013 and the company applied for re-analysis on 17.7.2013 after the expiry of 28 days provided under Section 25 of 'The Act' and hence the competent authority refused the re-analysis. petitioners themselves admitted in their petition that they had received the report. Although they claim the report was served upon them on 24th June and the date of receipt has been manipulated as 14th June. But whether the report was served on the petitioners on 14.06.13 or 24.06.2013 requires evidence to decide. So it cannot be decided at this stage.
14. Apex court in Glaxosmithkline Pharmaceuticals Ltd. v. State of M.P., (2011) 13 SCC 72 held Drugs and Cosmetics Act, 1940 Ss. 25(3), 27 and 35 --- Option to controvert report of government analyst --- Burden of proof that option was exercised within prescribed period of 28 days is on person/company which assails report - Consequences of failure to exercise option within time --- report becomes conclusive and criminal proceedings initiated under 1940 Act cannot be challenged on ground of delay even if expiry date of drug has passed in the meantime - However, question whether correct Indian Pharmacopoeia (IP)* standard was followed by government analyst while conducting analysis of drug, can be agitated during trial.
15. Prima facie from the complaint it appears that respondent sent the report of public analyst to petitioners' company within the time. But petitioners themselves did not file any application for re-analysis the drugs within time. Whether the report was served on the petitioners on 14.06.13 or 24.06.2013, and what was the implication of not permitting the petitioners for re-analysis is a matter of fact which cannot be decided at this stage.
16. Regarding point No.3, learned counsel for the petitioners submitted that report of public analyst is not according to Rule 6 and Rule 46 of Drugs and Cosmetics Rules, 1945. That rules require full protocols of the tests applied to be submitted along with the report. But in the present case protocols of the test that analyst applied were not supplied along with the report for which he also placed reliance in the matter of Vishal Pharmaceuticals and another vs. State of M.P. 1999 (2) MPLJ, 378. Although in this case this court held that the provision of Rule 6 and Rule 46 of Drugs and Cosmetics Rules, 1945 is mandatory. But Apex court in Dhian Singh vs Municipal Board, Saharanpur reported in 1970 AIR 318 held that It is not necessary that the report of the Public Analyst should contain the mode or particulars of analysis or the test applied. But it should contain the result of analysis, namely, data from which it can be inferred whether the article of food was of was not adulterated. Relying on that judgment apex court in Glaxosmithkline Pharmaceuticals Ltd.(supra) again held " It is a settled legal proposition that report of the analyst is conclusive. It means that no reasons are needed in support of conclusion given in the report, nor it is required that the report should contain the mode or particulars of the analysis." So only on that ground at this stage complaint can not be quashed. Regarding point no. 4 Learned counsel for the petitioners submitted that respondent had not mentioned in the complaint that petitioners no 2 to 4 are Directors of the company and responsible for day to day affairs of the company so they cannot be prosecuted. In this regard, he also placed reliance on the apex Court's Judgment passed in State of Karnataka vs. Pratap Chand and others, AIR 1981 SC 872 and also placed reliance of this Court's Judgment passed in Kishan Gopal Vassal and others vs. State of M.P. 2008 Drugs Cases (DC) 584, But the fact of this case do not match with those cases. In the present case, in the letter sent by the petitioners to respondent also filed by the respondent along with complaint it is clearly mentioned that the petitioners No.2 to 4 are the Directors of the said company and responsible for the daily activity of the company.
17. Learned counsel for the petitioners also submitted that sanction for prosecution vide order dated 17.06.2015 was granted in an mechanical manner without application of mind and so the prosecution is not maintainable. but this argument also has no force as whether the sanction for prosecution had been given by the competent authority after application of mind or not is also a matter of fact, this can be decided only after the evidence.
18. So in considered opinion of this Court, on the grounds raised by the petitioners complaint can not be quashed at this stage.
19. Accordingly, the petition is rejected with the observation that petitioners are free to raise all the grounds legally available to them during course of the trial in accordance with the law.
(RAJEEV KUMAR DUBEY) JUDGE JYOTI/P