Himachal Pradesh High Court
M/S Ultratech Pharmaceuticals And ... vs Non-Revisionist on 24 December, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
.
SHIMLA:
Cr. Revision No.402 of 2015.
Order reserved on: 18.12.2015.
Date of Order: December 24, 2015.
____________________________________________________________
of
M/s Ultratech Pharmaceuticals and others.
.....Revisionists.
Union of India.
rt Vs.
...Non-revisionist.
Coram:
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?yes.
For the revisionists: Mr.Sunil Awasthi, Advocate.
For Non-revisionist Mr. Ashok Sharma, ASGI.
P.S.Rana, Judge.
ORDER:Present criminal revision is filed under Section 397 read with section 401 of the Code of Criminal Procedure 1973 for setting aside the summoning order dated 18.4.2015 passed by learned trial Court in criminal Whether reporters of the Local papers are allowed to see the judgment?yes.
::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 2complaint No. 124/3 of 2015 titled Union of India Vs. M/s .
Ultratech Pharmaceuticals and others.
BRIEF FACTS OF THE CASE:
2. Drug Inspector, Central Drug Standard Control Organization Sub-Zone Chandigarh filed complaint against of accused persons under Section 18(a) (i) read with section 27
(d) of Drugs and Cosmetics Act 1940. There is recital in complaint that on dated 11.11.2013 complainant visited in rt the premises of M/s Ultratech Pharmaceuticals village Tipra Haripur road post office Barotiwala District Solan HP and drug samples were drawn and same were sent to government analyst. There is recital in complaint that drug samples were found not of standard quality by government analyst. There is recital in complaint that on dated 11.11.2013 during visit in the premises of M/s Ultratech Pharmaceuticals it was found that huge stock of drugs were lying for sale and distribution of drugs. There is recital in complaint that sample of C-Biotic Ear Drop was obtained. There is recital in complaint that report of government analyst was received and as per report of government analyst sample was not of standard quality as defined in Drugs and Cosmetics Act and Rules framed there under. There is recital in complaint that ::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 3 notice was issued to accused company/firm and accused .
company/firm did not notify their intention for retesting of the sample. There is recital in complaint that complainant personally visited in the premises on dated 3.9.2014 and verified the documents. There is recital in complaint that of complainant obtained necessary permission for prosecution.
There is recital in complaint that co-accused No. 1 to 12 are responsible for functioning of the manufacturing and are rt liable for the offence committed under Drugs and Cosmetics Act 1940. There is recital in complaint that co-accused No. 2 to 9 are partners of co-accused No.1 Firm and all accused persons are responsible for the conduct and affairs of accused firm. There is recital in complaint that co-accused No. 10, 11 and 12 are directly responsible for manufacturing and analysis of drug in question and offence has been committed under direct supervision of co-accused No. 10,11 and 12. There is recital in complaint that all accused persons be summoned and tried and be punished in accordance with law under Drugs and Cosmetics Act 1940. Learned Additional Chief Judicial Magistrate Nalagarh on dated 18.4.2015 held that there are sufficient grounds to proceed against accused persons for the commission of offence under ::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 4 Section 27(d) of the Drugs and Cosmetics Act 1940. Learned .
trial Court issued summoned to accused persons to appear before trial Court on 18.7.2015. On dated 18.7.2015 learned trial Court passed order that accused persons have failed to appear despite their proper service and learned trial Court of issued arrest warrant against accused persons.
3. Feeling aggrieved against the order passed by learned trial Court on dated 18.4.2015 revisionists have filed rt present revision petition.
4. Court heard learned Advocate appearing on behalf of revisionists and learned Assistant Solicitor General of India appearing on behalf of non-revisionist and also perused entire record carefully.
5. Following points arise for determination in present criminal revision petition:
1. Whether revision petition filed by revisionists under Section 397 read with section 401 of the Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of revision petition and whether complicated issue of facts can be decided at this stage of case?.
2. Final order.::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 5
Finding on point No.1 with reasons:
.
6. Submission of learned Advocate appearing on behalf of revisionists that there is recital in complaint that revisionists No. 10,11 and 12 are directly responsible for manufacturing and analysis of drug in question and co-
of revisionists No. 1 to 9 are not concerned with manufacturing of drug in question in any way and the issuance of process rt against them is gross abuse of process of law which is not sustainable in the eyes of law is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused complaint filed by complainant.
Complainant has specifically stated in para 15 of complaint that during investigation complainant has found that co-
accused No. 1 to 12 are responsible for the functioning of manufacturing firm which have manufactured drug in question declared as not of standard quality and all are liable for the offence under Drugs and Cosmetics Act 1940. Fact whether co-accused No. 1 to 12 are personally responsible for the functioning of manufacturing firm or not cannot be decided at this stage. The same fact will be decided when the case shall be disposed of on merit by learned trial Court after ::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 6 giving due opportunity of hearing to both parties to lead .
evidence in support of their case.
7. Submission of learned Advocate appearing on behalf of revisionists that vide office order dated 4.10.2014 State Drug Controller Controlling-cum-Licensing Authority of Baddi District Solan has suspended license relating to manufacture of sale and for distribution the C-Biotic Ear Drop w.e.f. 20.10.2014 to 19.12.2014 and revisionists rt cannot be prosecuted and punished for same offence twice on the concept of double jeopardy and on this ground revision petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. As per section 300 of the Code of Criminal Procedure 1973 person once convicted or acquitted cannot be tried for the same offence.
Court is of the opinion that in the present case revisionists are not acquitted or convicted by any court of criminal law.
Court is of the opinion that suspension of license is not acquittal or trial by criminal Court. Court is of the opinion that suspension of license is administrative act conducted by licensing authority under Rule 85 (2) of Drugs and Cosmetics Rules. Hence it is held that suspension of license is not ::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 7 criminal trial as mentioned under Code of Criminal .
Procedure 1973.
8. Submission of learned Advocate appearing on behalf of revisionists that as per Article 20(2) of the Constitution of India present revision petition be allowed is of rejected being devoid of any force the reasons hereinafter mentioned. Court is of the opinion that as per Article 20(2) of Constitution of India prosecution and punishment for the rt same offence more than one is prohibited under law. It is held that suspension of license is not prosecution and punishment as defined under Code of Criminal Procedure 1973 but is only an administrative act by licensing authority.
9. Submission of learned Advocate appearing on behalf of revisionists that report of analyst was not submitted to revisionists and revisionists have been deprived of their valuable statutory right under section 25 of Drugs Cosmetics Act 1940 and on this ground revision petition be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. As per annexure 'F' placed on record notice was issued to M/s Ultratech Pharmaceuticals to show cause within 28 days why action should not be taken against revisionists for violation of Drugs and ::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 8 Cosmetics Act 1940. Revisionists did not apply for retesting .
of sample despite notice given by Drug Inspector.
10. Submission of learned Advocate appearing on behalf of revisionists that sample was taken on 12.11.2013 and same was sent to government analyst on dated of 13.11.2013 and report was received on 25.7.2014 after nine months and possibility of mis-handling of sample could not be ruled out and on this ground revision petition be accepted rt is rejected being devoid of any force for the reasons hereinafter mentioned. Fact whether sample was mis-
handled or not cannot be decided at this stage. Same fact will be decided by learned trial Court after giving due opportunity of hearing to both parties to lead evidence in support of their case.
11. Submission of learned Advocate appearing on behalf of revisionists that learned trial Court has acted in a mechanical manner and issued summoned in a hurriedly manner without going into the allegations made in the complaint and has caused gross miscarriage of justice to the revisionists and on this ground revision petition be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It is held that at the time of issuing ::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 9 summon to accused under section 204 of the Code of .
Criminal Procedure 1973 magistrate would issue summon if in the opinion of a magistrate taking cognizance of an offence there are sufficient grounds for proceeding. Complicated facts asserted by one party and denied by other party will be of decided by learned trial Court after conclusion of trial after giving due opportunity to both parties to prove facts asserted or denied by parties. Complicated facts asserted and denied rt by parties cannot be decided at this stage of case.
12. Submission of learned Advocate appearing on behalf of revisionists that on the basis of partnership deed placed on record dated 7.5.2009 summon issued by learned trial Court to all partners are illegal and contrary to law and on this ground revision petition be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It was held by Hon'ble Apex Court of India in case reported in 1981 (2) SCC 454 titled Drugs Inspector Palace Road Bangalore Vs. Dr.B.K.Krishnaiah and another that extent of liability of the partner would be established by evidence during the trial. It was held that responsibility of each partner could not be decided by learned trial court at the time of issuance of notice under section 204 of Code of ::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 10 Criminal Procedure 1973 under Drugs and Cosmetics Act .
1940. It was held by Hon'ble Apex Court of India that operation of section 34 and 32 of Drug and Cosmetic Act 1940 would be decided by learned trial Court at the time of trial and would not be decided at the time of issuance of of notice under section 204 of the Code of Criminal Procedure 1973. It is well settled law that law declared by Supreme Court of India is binding upon all courts through out India rt as per Article 141 of the Constitution of India. After perusal of various documents filed along with complaint by drug inspector i.e. Annexure A to Annexure K placed on record court is of the opinion that it is not expedient in the ends of justice to interfere in the order of learned trial Court at this stage of case. Hence point No.1 is answered in negative against revisionists.
Point No.2 (Final order).
13. In view of finding on point No.1 revision petition filed by revisionists is dismissed. Order of learned trial Court is affirmed. Parties are directed to appear before learned trial Court on 8th January 2016. Observations will not effect merits of case in any manner and will be strictly confined for disposal of revision petition only. File of learned trial Court ::: Downloaded on - 15/04/2017 19:35:30 :::HCHP 11 along with certify copy of order be sent back forthwith.
.
Revision petition is disposed of. Pending application if any also disposed of.
(P.S.Rana) Judge.
of December 24,2015(R).
rt ::: Downloaded on - 15/04/2017 19:35:30 :::HCHP