Jammu & Kashmir High Court
Ramsons Remedies vs Peerzada Tssaduq Hussain And Ors. on 22 May, 2019
Equivalent citations: AIRONLINE 2019 J AND K 337
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
S. No. 14
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRTA No. 20/2018
IA No. 1/2018
Date of Order: 22.05.2019
Ramsons Remedies vs Peerzada Tssaduq Hussain and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearance:
For the appellant(s)/petitioner (s) : Mr. Varut Kumar Gupta, Advocate.
For the respondent(s) : None.
i. Whether approved for : Yes/No
reporting in Press/Media
ii. Whether to be reported in : Yes/ No
Digest/Journal
1. The instant application has been moved under Section 526 of Code of Criminal Procedure for transfer of Criminal Complaint titled, "State of J&K through Drug Inspector Vs. Proprietor M/S Kashmir Pharma & Surgicals and ors." pending before the Court of learned Chief Judicial Magistrate, Pulwama to any other competent Court preferably at Jammu.
2. The grounds taken in the instant application are that the petitioner firm is dealing in manufacturing for sale of various kinds of drugs as defined under Drugs and Cosmetics Act, 1940. The respondent No. 1 has filed a criminal Complaint under Section 18 (a) (i) read with Section 27 (d) of Drugs and Cosmetics Act, 1940 before the Court of learned Chief Judicial Magistrate, Pulwama.
3. It is stated that the respondent/Drugs Inspector, Pulwama lifted samples of Drug "Resix {Frusemide Injection}" from the premises of District Hospial, Pulwama and one sample of drug in question was CRTA No. 20/2018 2 sent to Government Analyst, Pulwama under Rule 57 on Form No. 18 for test and analysis and the same has declared the drug in question „Not of Standard Quality‟ and after completion of investigation, statutory complaint under 18(a) (i) read with Section 27 (d) stands filed before the Court of Learned Chief Judicial Magistrate, Pulwama. Further stated that the proceedings initiated by the respondent against the petitioner has been instituted upon a private complaint and hence, the procedure laid down in the Code of Criminal procedure for trial of summons cases is to be followed. Further the offences alleged are punishable upto an imprisonment, which may extend to two years and with fine.
4. The petitioner has filed the present Criminal Transfer Application, seeking transfer of the above mentioned Complaint from District Pulwama to any other Court of competent jurisdiction preferably at Jammu on account of prevailing law and order problem in District Pulwama {South Kashmir} and also, on other grounds which are detailed herein under:-
(a) Due to law and order problem and curfew prevailing in Pulwama District, it is not possible for the petitioner firm to visit Pulwama for causing appearance on each and every date of hearing in the criminal complaint filed by respondent. The petitioner on account of prevailing law and order situation cannot attend proceedings before the court below under atmosphere of fear and threat. It is stated that District Pulwama is facing severe stone pelting incidents as well as terrorism related incidents on day to day basis. Further stated that District CRTA No. 20/2018 3 Pulwama falls in South Kashmir and the whole area of South Kashmir is facing severe law and order situation for the last many years. The applicant being non-resident of J&K State cannot travel down all the way to District Pulwama from Punjab to attend court hearings in the midst of severe law and order problem and as such, invokes jurisdiction and powers of this Hon‟ble Court to transfer the complaint pending at Pulwama.
(b) The petitioner is invoking powers of the Hon‟ble High Court under Section 526 of Code of Criminal Procedure and this Hon‟ble Court has jurisdiction to transfer any case and pass necessary orders under circumstances which will tend to the general convenience of the parties or witnesses.
It is stated that Pulwama is situated very far off place from the place of business as well as place of residence of petitioner. Also, it would be very difficult for the petitioner to cause appearance at Pulwama on each and every date of hearing since both places of residence and business are situated at a very far place. Further, it would be very convenient for the petitioner to cause appearance on each and every date of hearing, in case, the proceedings are transferred to Jammu.
(c) The present Criminal Transfer Application can be allowed on the ground that the respondent department {Department of Drugs and Food Control Organization} is having its provincial office at Jammu and even, the head office of respondent CRTA No. 20/2018 4 department is also based at Jammu situated at Patoli Mangotrian and hence, the proceedings in the complaint can be easily monitored at Jammu by respondent.
The proceeding pending before the Court at Pulwama has been instituted upon complaint basis and the respondent/complainant under law is required to depose as complainant during trial and in the matters under hand, the respondent being a public servant and having provincial as well as head office at Jammu as well as Srinagar, can easily come to Jammu for deposition and make statement before the Hon‟ble Court and further, applicant undertakes to bear any expense in this regard.
Further stated that even otherwise, the other co-accused (accused nos. 2 & 3) arrayed in complaint are also non- residents of Pulwama and it is respectfully submitted that it would be convenient for other accused persons also, in case, the complaint is transferred to Jammu.
(d) The Hon‟ble Court has already interfered in similar matter pertaining to petitioner firm under section 526 of code of criminal procedure on similar grounds and the petitioner has placed on record copy of Judgment dated 24.11.2017 passed by Hon‟ble High Court of J&K in CRTA bearing No. 04/2017 titled "M/S Ramson Remedies vs. State of J&K". CRTA No. 20/2018 5
(e) All these grounds have been taken inter alia without prejudice to each other and other grounds shall be urged at the time of hearing and arguments.
(f) That this petition has been made bonafide and for the ends of justice and no other petition of similar nature is pending or has been filed before any other court of law.
5. State has filed the objections, stating therein that the present Transfer Application has been filed with mala-fide intention to delay the proceedings and avoid the trial which has been set in motion by the answering respondent No. 1 by filing the complaint against the petitioner for commission of serious offence under Section 18 (a) (i) read with Section 27 (d) of Drugs and Cosmetics Act, 1940. It is stated that the answering respondent is functioning only in Pulwama and has no office in Jammu shall be put to great inconvenience if the aforesaid case is transferred to Jammu. Further stated that all the evidence and the prosecution witnesses are also located at Srinagar and thus it cannot be transferred to Jammu on the asking of the petitioner.
6. I have considered the rival contentions of the parties. The petitioner (Manager)-Sh. Kusum Kumar Sharma S/o Sh. Dina Nath Sharma is the proprietor appointed by the Firm, i.e., M/S Ramson Remedies, Pharmaceutical Manufacturers. The office of the respondent-Drugs Inspector, Pulwama, is also situated at Drugs and Food Control Organization Muthi, Jammu. In this way, both are the residents of Jammu and both can also easily prosecute the case, at Jammu. No CRTA No. 20/2018 6 prejudice shall be caused to both the parties, if the case is transferred from the Court of learned Chief Judicial Magistrate, Pulwama to the learned Chief Judicial Magistrate, Jammu.
7. In this view of the matter, the instant application is allowed and the criminal complaint titled "State of J&K through Drugs Inspector, Pulwama namely, Peerzada Tasaduq Hussain V/S Proprietor M/S Kashmir Pharma & Surgicals and ors." is withdrawn from the court of learned Chief Judicial Magistrate, Pulwama and is transferred to the court of learned Chief Judicial Magistrate, Jammu, who may try the complaint himself or may transfer it to any other court of competent jurisdiction. Let a copy of this order be sent to both the Courts below namely learned Chief Judicial Magistrate, Pulwama and learned Chief Judicial Magistrate, Jammu, for compliance.
8. Disposed of as above along with connected IA.
( Sanjay Kumar Gupta ) Judge Jammu 22.05.2019 Pawan Angotra PAWAN ANGOTRA 2019.05.27CRTA15:23 No. 20/2018 I attest to the accuracy and integrity of this document