Rajasthan High Court - Jaipur
M/S Meri-Odin Life Sciences, Village ... vs State Of Rajasthan on 17 July, 2019
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 2446/2019
1. M/s Meri-Odin Life Sciences, Village Chewa, P.o.
Kumarhatti, District Solan 173229 (Himachal Pradesh),
Through Its Partner Shri Narpinder Singh Bawa S/o Shri
N.s. Bawa, Partner M/s Meri Odin Life Sciences, Village
Chewa, P.o. Kumarhatti, District Solan 173212 (Himachal
Pradesh), At Present Village Balna, Po Shamti District
Solan, H.p.
2. Shri Narpinder Singh Bawa S/o Shri N.s. Bawa, Partner
M/s Meri Odin Life Sciences, Village Chewa, P.o.
Kumarhatti, District Solan 173229 (Himachal Pradesh), At
Present R/o Balna, P.o. Shamti, District Solan, H.p.
3. Smt. Ruchika W/o Shri Sumit Gupta, Partner M/s Meri
Odin Life Sciences, Village Chewa, P.o. Kumarhatti,
District Solan 173229 (Himachal Pradesh), At Present
Surya Vihar, Rajagarh Road, District Solan, Hp.
4. Smt. Shalika Aggarwal W/o Shri Vikas Aggarwal, Partner
M/s Meri Odin Life Sciences, Village Chewa, P.o.
Kumarhatti, District Solan 173229 (Himachal Pradesh), At
Present 762, Sector 12, District Panchkula, Haryana.
----Petitioners
Versus
1. State Of Rajasthan, Through Pp.
2. Drugs Control Officer, Ajmer, Raj.
----Respondents
For Petitioner(s) : Mr. Ajay Tanwar for
Mr. Ashvin Garg
For Respondent(s) : Mr. Mangal Singh Saini, P.P.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Order
17/07/2019
1. Petitioners have preferred this misc. petition seeking
quashing of criminal proceedings arising out of Complaint
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No.63/2016 and all subsequent proceedings pending in the Court of learned Chief Judicial Magistrate, Ajmer.
2. It is contended by counsel for the petitioners that samples of some drugs were obtained by Drug Control Officer. The said samples were sent to State Forensic Science Laboratory. State Forensic Science Laboratory reported that the drugs are sub- standard. It is contended that Drug Control Officer was not assigned any specific area and was thus not competent to lift the sample and file complaint against the petitioners.
3. It is further contended that there is no allegation in the complaint that petitioner Nos.2, 3 & 4 are responsible for the conduct of the business of firm. It is contended that petitioner Nos. 2, 3 & 4 were partners and they were not responsible for the day to day working of the firm.
4. It is also contended that Sub clause (3) of Section 25 of the Drugs and Cosmetics Act, 1940 (in short 'the Act of, 1940) provides that some proceeding should be pending before some Court. At the time when the State analyst report was received, no proceeding was pending before any Court, thus Petitioners' valuable rights have been effected.
5. It is also contended that the notification issued by State gives powers to the Drug Control Officer to exercise it throughout the State of Rajasthan, whereas powers should be given only for specified area within the local limits of which Drug Control Officer can exercise his powers.
6. Is is further contended that the samples were not properly stored, hence the proceedings cannot be continued against the petitioners.
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7. Counsel for the petitioners has placed reliance on State of Haryana Versus Brij Lal Mittal, 1998 (2) RCR Criminal 608, SMS Pharmaceuticals Limited Versus Neeta Bhalla, 2007 (2) RCR Criminal 126, K.K. Ahuja Versus V.K. Vora, 2009 (3) RCR Criminal 571, National Small Industries Corp. Ltd. Versus Harmeet Singh Paintal & Anr., 2010 (2) RAJ 22, Sunil Bharti Mittal Versus Central Bureau of Investigation, 2015 (1) RAJ 473, Northern Mineral Limited vs. Union of India And Anr., 2010 (3) RCR (Criminal) 763, C.S. Velu vs. State of Himachal Pradesh, 2017 (1) Drugs Cases (DC) 225, State of Maharashtra vs. R.A. Chandawarkar, 1999 Cri.L.J. 4449, Johnson and Johnson Ltd. Himachal Pradesh And Anr. vs. State of Andhra Pradesh And Anr., 2015 (1) Drugs Cases (DC) 2 and State of Nagaland And Ors. vs. Bendangrenla, 2018 AIR (Gauhati) 59.
8. I have considered the contentions and have perused the complaint.
9. Admittedly, drugs manufactured by petitioner No.1 were found to be sub-standard by the State Forensic Science Laboratory and by the Central Forensic Science Laboratory. Petitioner Nos. 2, 3 & 4 are partners of petitioner No.1. In the complaint itself, Drug Control Officer has mentioned that petitioner Nos. 2, 3 & 4 are partners and are within the category of persons responsible as per Section 34 of the Act of 1940.
10. State of Haryana Versus Brij Lal Mittal (supra) was a case where Drug Control Officer had not alleged in the complaint that Directors were in-charge and were responsible to the company for the conduct of its business. The proceedings were, therefore, quashed by the Apex Court.
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11. In SMS Pharmaceuticals Limited Versus Neeta Bhalla (supra) Apex Court observed that in the complaint there must be averment that the person was in-charge and was responsible for conduct of the business of the company. The Court was dealing with a case under the Negotiable Instruments Act. The Court observed that only those Directors who were in-charge and responsible to the company are liable.
12. K.K. Ahuja Versus V.K. Vora (supra) was also a case under the Negotiable Instruments Act. Apex court held that averment should be there in the complaint that Director was in-charge and was responsible for the conduct of the business of the company.
13. National Small Industries Corp. Ltd. Versus Harmeet Singh Paintal & Anr. (supra) was also a case under the Negotiable Instruments Act. There was no specific averment in the complaint as to the role of the Director, hence proceeding qua the Director was quashed by the Apex Court.
14. Similar was the view of the Apex Court in Sunil Bharti Mittal Versus Central Bureau of Investigation (supra) wherein Apex Court held that when the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect.
15. This Court is of the considered view that in the present case, there is specific averment in the complaint that petitioner Nos. 2, 3 & 4 are partners and are responsible as per Section 34 of the Act of 1940. It was not necessary to give in detail the role of petitioner Nos. 2, 3 & 4 in the running of partnership firm.
16. The judgments cited by the counsel on facts do not apply as in the above mentioned cases there was no averment in the complaint whereas there is specific averment in the present case (Downloaded on 01/09/2019 at 07:46:54 PM) (5 of 7) [CRLMP-2446/2019] regarding petitioner Nos. 2, 3 and 4 being responsible persons as per Section 34 of the Act of 1940.
17. As far as contention with regard to there being no proceedings pending before the Court and infringement of rights of the petitioners, as Sub Section (4) of Section 25 of the Act of 1940 did not become applicable.
18. In C.S. Velu vs. State of Himachal Pradesh, Himachal Pradesh High Court has held that from careful reading of Section 25(4) of the Act, it is evidently clear that as per this provision, a valuable right accrues in favour of the manufacturer to seek re- analysis of the sample from the Central Drugs Laboratory in case the report of the Laboratory submitted earlier is adverse to him. However, such a request which the manufacturer can seek re- analysis of the sample is only after the complaint is filed because such request can be made by the manufacturer only to the Court for re-analysis of the sample.
19. The said judgment also does not come in aid to the petitioner Nos. 2, 3 & 4 for the very reason that Section 25 of the Act of 1940 makes it explicitly clear that a report of Government Analyst shall be evidence of the facts stated therein, and 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 controversion of the report.
20. In the present case, after receipt of report of the State analyst, petitioners had applied to the Inspector under Sub- Section (3) of Section 25 of the Act of 1940 and it is not necessary (Downloaded on 01/09/2019 at 07:46:54 PM) (6 of 7) [CRLMP-2446/2019] that at the time when he makes request, the matter should be pending before the Court as the Section provides notifying to the Inspector before whom proceedings are pending.
21. The next contention of counsel for the petitioners is that Drug Control Officer was not assigned a particular area, which is mandatory as per Sections 21 & 22 of the Act of 1940.
22. Section 21 of the Act of 1940, authorizes Central Government or a State Government to issue notification in the Official Gazette, appointing such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be.
23. Inspectors authorized by the Government may, within the local limits of the area for which he is appointed, take samples, conduct search and act in accordance with Section 22 of the Act of 1940.
24. State Government in the present case had issued notification authorizing as many as fifty four qualified officers as Inspectors under Section 21 of the Act of 1940 and they were authorized to exercise their powers throughout the State of Rajasthan. The notification issued by the Government is not under challenge in the misc. petition.
25. Johnson and Johnson Ltd. Himachal Pradesh And Anr. vs. State of Andhra Pradesh And Anr. (supra) was a case where the State had issued notification authorizing eight persons for the entire State of Andhra Pradesh. Name of Nagaraju who lifted the sample, was not there in the Gazette notification, the proceedings were thus quashed.
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26. State of Maharashtra vs. R.A. Chandawarkar And Ors. (supra) was a case where Drug Inspector conducted the search prior to the issuance of notification in the Official Gazette. Court held that a serious infirmity has been committed and quashed the proceedings.
27. Present is a case where there is a notification and the notification cannot be said to be bad in law and there appears to be no infirmity in the proceedings initiated by the Drug Inspector.
28. The matter pertains to manufacturing of sub-standard drugs, hence this Court is not inclined to invoke the inherent powers. No ground is made out for quashing of the criminal proceedings, the misc. petition is accordingly dismissed. Stay application stands disposed.
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