Himachal Pradesh High Court
Virender Kansal vs Norang Raj Aggarwal And Others on 6 September, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 6TH DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO. 362 OF 2019
Between:-
1. VIRENDER KANSAL
S/O SH. SANT RAM KANSAL,
PARTNER OF THE FIRM,
M/S THERWAIN FORMULATIONS,
69-71, JASMEET NAGAR,
AMBALA CITY, HARYANA
2. M/S THARAWIN FORMULATIONS,
69-71, JASMEET NAGAR,
AMBALA CITY, HARYANA
... PETITIONERS
(BY MR. VIJAY KUMAR ARORA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
THROUGH
DRUGS INSPECTOR,
DISTRICT SIRMOUR,
H.P.
.. RESPONDENT
(MR. SUDHIR BHATNAGAR
AND MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL
WITH MR. R.P. SINGH, MR. KAMAL KISHORE
AND MR. NARINDER THAKUR,
DEPUTY ADVOCATES GENERAL)
Whether approved for reporting. Yes.
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 S.482 CrPC, prayer has been made on behalf of the petitioners for quashing of complaint filed against ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 2 them under Ss. 18(a)(i) read with S.17 punishable under S. 27 (d) of Drugs and Cosmetics Act, 1940 and the Rules, 1945 (hereinafter, 'Act' and 'Rules') and order dated 8.5.2018 (Annexure P-5) passed by learned Judicial Magistrate First Class Nahan, in Complaint No. 116/3 of 2018, titled State of .
Himachal Pradesh vs. Norang Raj Aggarwal and others, whereby learned court below proceeded to order summoning of the petitioners herein, in the complaint, as detailed herein above, lodged at the behest of the Drug Inspector, Nahan, District Sirmaur, Himachal Pradesh.
2. Precisely, the facts of the case, as emerge from the record, are that the Chief Medical Officer, Sirmaur at Nahan, vide supply order dated 12.7.2016(available at page 30 of the paper book), placed order with M/s Novex Healthcare, Parwanoo, District Solan, Himachal Pradesh to purchase drugs namely Inj. Frusemide, Salbutamol Syp. and Tab. Dicyclomine 10mg. Pursuant to aforesaid supply order of drugs, M/s Novex Healthcare Parwanoo supplied one Lakh tablets of Dicyclomine 10 mg. Drug Inspector Hqrs Nahan, Sirmaur, after having seen some report published in social media that the wrapper containing tablet Dicyclomine has also been shown to be containing Dexamethasone, directed Chief Pharmacist, office of Chief Medical Officer, Sirmaur at Nahan to inform whether the above said medicine has been purchased by office of Chief Medical Officer or not? If yes, how much quantity is lying in stock and how much stands distributed. (page 25 of paper book). Pursuant to aforesaid communication, Chief Pharmacist o/o Chief Medical Officer Sirmaur at Nahan informed the Drug Inspector, Nahan that the office of Chief Medical Officer has received 1 Lakh tablets of Dicyclomine tablets I.P. (Dexamethasone I.P. 0.5 mg) having Batch No. DCL-03, D/M 07/2017, D/E 12/2018 vide bill No. 3122 dated 11.8.2017 and as on 21.11.2017, 65,050 ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 3 tablets are lying in District Drug Store, Sirmaur at Nahan and letters have been issued to the concerned Block Medical Officers and Medical Officers in this regard. It was also informed vide aforesaid communication that two carton boxes containing 1600 tablets of Dicyclomine tablets I.P. (received from .
Rajprua Block) vide Batch No. DCL-03., D/M 07/2017, D/E 12/2018 manufactured by M/s Therawin Formulations, 69-71, Jasmeet Nagar, Ambala were found to be properly labeled.
3. After having noticed aforesaid illegality allegedly committed by manufacturer of drug namely Dicyclomine, Drug Inspector, Hqrs, Nahan, drew samples of aforesaid drug from the District Drug Store, Sirmaur on 21.11.2017 under the provisions of Drugs and Cosmetics Act and Rules, 1945, for the purpose of testing and analysis. Sample was referred to Government Analyst, Composite Testing Laboratory Kandaghat, for test and analysis, who declared that, said drug in question is Not of Standard Quality vide his report No. CTL-Drugs/2016-7732 dated 22.12.2017, for the reason that "The tablet strips were labeled as Dicyclomine tablets IP. The composition details stamped on the tablet strips stated that each tablet contains 0.5 mg of Dexamethasone. On analysis, the tablets were found to have contained 9.54 mg of Dicyclomine and Dexamethasone was found absent." (available at page-50 and 51 of the paper-book). Besides above, Central Drug Inspector, who was made part of Central Investigation Team, got samples tested from Regional Drug Testing Laboratory , Chandigarh, who also vide report dated 29.12.2017 (Annexure P-2) concluded as under:
"In the opinion of the undersigned the sample referred to above is not of standard quality as defined in the Drugs and Cosmetics Act, 1940, and Rules there under for the reasons given below: -::: Downloaded on - 31/01/2022 23:01:14 :::CIS 4
The sample does not conforms to claim as per IP 2014 in respect to the Identification A. Remarks: The sample is negative for Dexamethasone however, it is positive for Dicyclomine." (Annexure P-2 at page
47).
.
4. Apart from above, Central Drug Laboratory, Government of India, Kolkata, pursuant to request made by Drug Inspector, CDSCO Sub Zone, Badd,i also gave its report (Annexure P-4), wherein it was opined that "in the opinion of the undersigned the sample referred to above, not of standard quality as defined in Drugs Act, 1940 and rules thereunder for the reasons given below: -
"1)` The sample was tested both as per Dicyclomine Tablets I.P. and Dexamethasone Tablets I.P. and found positive for Dicyclomine Hydrocholride only.
2. But the tablets contains Dexamethasone 0.5 mg/tablet as per claim in the composition which is not matching with the name of the sample i.e. Dicyclomine Tablets I.P."
5. After having received aforesaid reports from the various laboratories, Drug Inspector, Nahan, District Sirmuar, lodged a complaint (Annexure P-1) under S.18(a)(i), read with S.17 punishable under Section 27(d) of Drugs and Cosmetics Act, 1940 and Rules, 1945 made thereunder in the court of learned Chief Judicial Magistrate, Nahan, District Sirmaur, arraying present petitioners as accused Nos. 4 and 5.. In the aforesaid complaint, Drug Inspector claimed that though supply order for supply of drug namely Dicyclomine was placed with M/s Novex Healthcare Parwanoo, but since such medicine came to be manufactured by M/s Therawin Formulations, petitioners are also liable for action under appropriate provisions of the Act. Complaint further reveals that M/s Novex Healthcare, while responding to the ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 5 notice issued by Drug Inspector, informed that they had received drug in question from M/s Therawin Formulations i.e. petitioner No.2, Drug Inspector in the complaint alleged that as per supply order, tablet Dicyclomine was required to be supplied and there was no order, if any, to supply Dicyclomine .
containing Dexamethasone. As per complaint, though tablets supplied to Chief Medical Officer, did not contain Dexamethasone but since wrong information came to be supplied by the manufacturer and distributor to the customers, by giving wrong composition of drug in the wrapper, accused named in the complaint are liable to be prosecuted under S.18(a)(i) read with S.17 punishable under S.27(d) of Drugs and Cosmetics Act.
6. Pursuant to aforesaid complaint, learned Chief Judicial Magistrate Nahan, District Sirmaur, vide order dated 8.5.2018, issued summons to the petitioners herein apart from other accused named in the complaint (Annexure P-5 colly). Being aggrieved and dissatisfied with the summoning order issued by learned Court below, petitioners have approached this court in the instant proceedings for quashing of summoning order dated 8.5.2018 as well as the main complaint against them.
7. Reply stands filed on behalf of the respondents, perusal whereof reveals that the office of Chief Medical Officer placed supply order to M/s Novex Healthcare, Parwanoo for supply of drugs including 2 Lakh tablets of Dicyclomine 10 mg and pursuant to aforesaid supply order, one Lakh tablets came to be supplied by M/s Novex Healthcare, Parwanoo but since there was mention of Dexamethasone on the wrapper of aforesaid tablets of Dicyclomine, matter came to be highlighted in social media, as a result of which, Drug Inspector, on the askance of higher authorities, drew samples of tablet Dicyclomine, wherein though salt of Dexamethasone was found absent ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 6 but since wrong information was given on the wrapper containing Dicyclomine, Drug Inspector Nahan, after having obtained necessary permission to prosecute and after completion of codal formalities, filed complaint in the competent court of law, praying therein for initiation of action .
against all the accused named in complaint for having violated provisions contained under Section 18(a)(i) read with S.17 punishable under S.27(d) of the Act.
8. Though as per material available on record as well as reply filed by the respondent-State, tablets of Dicyclomine were of standard quality but since there was mistake in printing of the wrapper containing aforesaid tablets of Dicyclomine, whereupon contents of Dexamethasone were also shown to be present in the tablets of Dicyclomine, complaint under S.18(a)(i) read with S.17 of the Act came to be instituted against the persons named in the complaint.
9. Since Dicyclomine tablet was manufactured by the petitioners, they, after having received information with regard to printing mistake supra, not only withdrew the entire stock of Dicyclomine tablets rather also made available affidavit of the printer i.e. M/s Royal Pharma Packers (available at page 47 of the paper book) that due to some printing error Dicyclomine Hydrochloride tablet IP 10 mg was wrongly printed on the wrapper. He, by way of an affidavit deposed that, "though Dicyclomine Tablets I.P. was mentioned on the head of the foil but the contents of the drug was mentioned as Dexamethasone I.P. 0.5 mg instead of Dicyclomine Hyrochloride I.P. 10 mg. it was all due to printing error which I could not notice at the time of printing the foil." Said person also deposed in para 4 of the affidavit that, "//as a matter of fact, I have prepared two cylinders each for printing Dicyclomine ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 7 10 mg foil & Dexamethasone 0.5 mg foil. While printing foil of Dicyclomine tablet 10 mg, one of the cylinder of Dexamethasone I.P. 0.5 mg was used. As a result foil of Dicyclomine tablet IP 10 mg foil was printed with contents mentioned as Dexamethasone IP 0.5 mg. This wrongly printed foil was .
supplied along with the correct foil on the same roll".
10. It also appears from the pleadings adduced on record by respective parties that the District Magistrate Sirmaur also conducted an enquiry with regard to aforesaid error and vide order dated 30.5.2019 (Annexure P-8), concluded that on examination of case, it appears to be a case of printing error on the part of company and Government may consider taking lenient view in the matter. Vide aforesaid communication, District Magistrate made a request to the Director, Health Safety and Regulations, Shimla to drop legal proceedings in the matter of State of Himachal Pradesh vs. Therawin Formulations pending before learned Chief Judicial Magistrate, Sirmaur at Nahan. This court finds from the record that apart from the provisions contained under the Act and the Rules framed thereunder, Department has formulated "Guidelines for taking action on samples of drugs declared spurious or not of standard quality in the light of enhanced penalties under the Drugs and Cosmetics (Amendment) Act, 2008 (Annexure P-9)
11. Category C of Guidelines deals with minor defects, viz. (i) broken or chipped tablets, (ii) Presence of spot/discolouration/un even coating, (iii) Cracking of emulsions (iv) Clear liquid preparations showing sedimentation,
(v) Change in colour of the formulation (vi) Slight variation in net content (vii) Formulations failing in weight variation (viii) Formulations failing to respondt to the colour test (ix) ISOLATED cases of presences of foreign matter and (x) ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 8 Labelling error including nomenclature mistake, Rx, NRx, XRx, Red Line, Schedule H, Caution, Colour etc.
12. Clause 5 of the Guidelines as referred to above also suggests that in the case of drugs being not of standard quality reports because of minor .
defects arising out of variations from the prescribed standards or contraventions of other provisions of Chapter IV of the Act, administrative measures including suspension/cancellation or compounding of offences may be resorted to. Prosecution can be launched, where it is justifiably felt that above measures would not meet the ends of justice.
13. Record reveals that pursuant to aforesaid guidelines, vide order dated 3.4.2018, State Drugs Controller-cum-Licensing Authority, while exercising power under Rule 85 Sub Clause (ii) of Drugs and Cosmetics (Amendment) Act, 2008, suspended the permission granted in favour of the petitioners herein to manufacture Dicyclomine including all generic and brand drugs showing same composition for 3 months from the date of receipt of letter. If said letter is read in its entirety, it clearly suggests that the aforesaid action of suspension of permission to manufacture drug as detailed above, came to be taken by the authority concerned against petitioners for theirs having violated /contravened provisions contained under S.18 of the Act.
14. I have heard learned counsel for the parties and perused the material available on record. From the perusal of the record, this court finds that the precise grouse of the petitioners is that since Dicyclomine tablets manufactured by them were of standard quality and it contained Dicyclomine IP 10 mg as per supply order placed by Chief Medical Officer, Nahan, no action, if any, under S.18(a)(i) read with S.17 of the Act punishable under S.27(d) of the Act, could have been initiated against them, who, after having ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 9 noticed the aforesaid mistake, not only had withdrawn entire consignment of the medicine but also apprised the Department with regard to the reasons, which led to printing error on wrappers containing Dicyclomine tablets.
15. Mr. Vijay Kumar Arora, Advocate appearing for the petitioners, .
while referring to the various documents placed on record alongwith the petition as well as complaint filed in the competent court of law, contended that once the District Magistrate, Sirmaur, after having scanned entire record, had come to conclusion that it was only a case of printing error and no loss of any kind had been caused to the Department, there was no occasion for the Drug Inspector to institute complaint under S.18(a)(i) read with S.17 of the Drugs and Cosmetics Act r in the competent court of law, which further, without verifying the correctness of the allegations contained in the complaint, proceeded to issue summons to the petitioners. While referring to the Guidelines framed by Department under Drugs and Cosmetics (Amendment) Act 2008 for taking action on samples of drugs declared spurious or not of standard quality (Annexure P-9), learned counsel for the petitioners argued that once it stood established on record that the entire confusion arose on account of printing error, Department instead of initiating prosecution in the competent court of law, ought to have imposed minor penalty as provided under the Guidelines, which in fact was imposed by the State Drugs Controller-cum-Licensing Authority,, by banning petitioners from manufacturing the drug in question for three months.
16. Mr. Desh Raj Thakur, learned Additional Advocate General, while supporting the impugned action of respondents as well as summoning orders issued by the learned court below, vehemently argued that once it stood admitted by the petitioners herein that the drug supplied by them, pursuant to ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 10 supply order, did not contain Dexamethasone and despite that they printed Dexamethasone on the wrappers containing Dicyclomine tablets, case under S.18(a)(i) read with S.17 of the Act rightly came to be instituted against them. Lastly, Mr. Thakur, argued that the provisions of minor penalty as contained in .
the Guidelines otherwise cannot be a bar for the Department to launch criminal prosecution for violation and contravention of various provisions of the Act.
17. Before adverting to the factual matrix of the case, this Court deems it necessary to elaborate upon the scope and competence of this Court to quash the criminal proceedings while exercising power under Section 482 of Cr.PC. Hon'ble Apex Court in judgment titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 has laid down several principles, which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. Before pronouncement of aforesaid judgment rendered by the Hon'ble Apex Court, a three-Judge Bench of Hon'ble Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding, 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. Relevant para is being reproduced herein below:-
"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding 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. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 11 weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the .
ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
18. Hon'ble Apex Court in Bhajan Lal (supra), has elaborately considered the scope and ambit of Section 482 Cr.P.C. Subsequently, Hon'ble Apex Court in Vineet Kumar and Ors. v. State of U.P. and Anr., while considering the scope of interference under Sections 397 Cr.PC and 482 Cr.PC, by the High Courts, has held that High Court is entitled to quash a proceeding, 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 proceedings ought to be quashed. The Hon'ble Apex Court has further held that the saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In the aforesaid case, the Hon'ble Apex Court taking note of seven categories, where power can be exercised under Section 482 Cr.PC, as enumerated in Bhajan Lal (supra), i.e. where a criminal proceeding is manifestly attended with malafides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 12 vengeance on the accused and with a view to spite him due to private and personal grudge, quashed the proceedings
19. Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, while drawing strength from its earlier judgment titled as .
Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, has reiterated that High Court has inherent power under Section 482 Cr.PC., 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 charge, but such power must always be used with caution, care and circumspection. While invoking 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 and the material adduced on record itself overrules the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. 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 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 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 ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 13 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 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, ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 14 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 r 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."
20. Hon'ble Apex Court in Asmathunnisa v. State of A.P. (2011) 11 SCC 259, has held as under:
"12. This Court, in a number of cases, has laid down the scope and ambit of the High Court's power under section 482 of the Code of Criminal Procedure. Inherent power under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 15 preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
13. The law has been crystallized more than half a century ago in the case of R.P. Kapur v. State of Punjab AIR 1960 SC .
866 wherein this Court has summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. This Court summarized the following three broad categories where the High Court would be justified in exercise of its powers under section 482:
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
14. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, according to the court, the process against the accused can be quashed or set aside :
"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like".::: Downloaded on - 31/01/2022 23:01:14 :::CIS 16
15. This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699, observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of .
the court or that the ends of justice requires that the proceedings ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the Legislature. This case has been followed in a large number of subsequent cases of this court and other courts."
21. Hon'ble Apex Court in Asmathunnisa (supra) has categorically held that where discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like, High Court would be justified in exercise of its powers under S. 482 CrPC.
22. Also, reliance is placed upon a judgment rendered by Hon'ble Apex Court in Pepsi Foods Ltd. v. Special Judciial Magistrate, (1998) 5 SCC 749, wherein, it has been observed that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. Hon'ble Apex Court in the judgment (supra) has held as under:
::: Downloaded on - 31/01/2022 23:01:14 :::CIS 17
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his .
mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
23. From the bare perusal of aforesaid exposition of law, it is quite apparent that exercising its inherent power under Section 482 Cr.PC., High Court can proceed to quash the proceedings, if it comes to the conclusion that allowing the proceedings to continue would be an abuse of process of the law.
24. Careful perusal of aforesaid law taken note herein above, clearly reveals that power under S.482 for quashing of complaint and summoning order cannot be used mechanically in every case by High Court rather, such power is required to be used sparingly and in extra-ordinary circumstances, especially in those cases, where court, after having seen record, comes to a conclusion that if prosecution, on the basis of contents contained in the complaint, is allowed to continue, would result in sheer abuse of process of law and miscarriage of justice. Besides above, court, after having scanned material, if arrives at a conclusion that the material collected on record by prosecution is not of that kind that it would result in conviction of accused, it ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 18 can quash proceedings, so that accused is not subjected to protracted trial. Most importantly, in all the judgments relied above, especially Pepsi Foods Ltd. (supra), Hon'ble Apex Court has categorically held that summoning of an accused in criminal case is a serious matter. Order of summoning must reflect .
that the court issuing such order has applied its mind to the facts of case and law applicable thereto. While deciding to issue summons, court is necessarily required to examine nature of allegations made in the complaint and evidence, both oral and documentary in support thereof. After having seen contents of the complaint as well as evidence led on record in support of allegations, court is required to satisfy itself that the material placed before it would be sufficient for the complainant to bring home charge to the accused.
25. Now, in the light of the aforesaid exposition of law, this Court shall make an endeavor to examine the material available on record vis-à-vis impugned order, with a view to arrive at a conclusion that, whether facts of the case warrant exercise of power by this court under Section 482 Cr.PC for quashing of summoning process or not?
26. No doubt, in the case at hand, it is not in dispute that M/s Novex Healthcare, Parwanoo was placed order to supply drug namely Dicyclomine IP 10mg and there was nothing in supply order to show that tablet of Dicyclomine was to contain Dexamethasone. Tablets supplied by M/s Novex Healthcare, Parwanoo on chemical analysis disclosed that though tablet contained in wrapper is sample of Dicyclomine but on wrapper of such medicine, salt i.e. Dexamethasone, which was not to be part of the drug, was shown, as a consequence of which, supplier of drug in question contravened provisions of Ss.17 and 18 of the Act. Since the drug in question was manufactured by the petitioners herein, they also came to be named in the ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 19 complaint instituted at the behest of Drug Inspector in the competent court of law. Before launching of criminal prosecution under aforesaid provisions of law, entire stock of drug in question was withdrawn by the petitioners. District Magistrate, Nahan, after having investigated the matter, arrived at a definite .
conclusion that the entire confusion arose on account of misprinting on the wrappers containing drug in question. Apart from above, manufacturer of wrapper by way of an affidavit categorically deposed that though he had to mention Dicyclomine on the wrapper but for some inadvertent mistake on its part, Dexamethasone wrongly came to be printed on the wrappers containing Dicyclomine.
27. The complaint (Annexure P-1) filed by Drug Inspector in the competent court of law nowhere suggests that tablet Dicyclomine was not of standard quality, rather, very gist of the case against the persons named in the complaint is that manufacturers wrongly printed "Dexamethasone" on the wrappers of tablet Dicyclomine, in addition to Dicyclomine, whereas, it only contained Dicyclomine. Even if contents of the complaint are accepted in their totality, it clearly suggests that there was a printing error and otherwise M/s Novex Healthcare, Parwanoo had rightly supplied the drug Dicyclomine as per supply order placed by Chief Medical Officer, Sirmaur at Nahan.
28. Interestingly, in the case at hand, Department on one hand, initiated /launched criminal prosecution against the persons detailed in the complaint including petitioners herein for theirs having violated provisions of Ss.17 and 18 of the Act punishable under S. 27(d) of the Act, but on the other hand, taking note of the Guidelines framed by the Department itself(Annexure P-9), for taking action on samples of drugs declared spurious or not of standard quality under Drugs and Cosmetics (Amendment) Act 2008, banned ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 20 petitioners herein from manufacturing drug for a period of three months. Since as per aforesaid Guidelines, Annexure P-9, minor penalty as was required to be imposed in view of offence alleged to have been committed by petitioners, Department had barred the petitioners herein from manufacturing the drug for .
three months, there was no occasion for the Department to initiate criminal prosecution in the competent court of law.
29. No doubt, Department is at liberty to initiate /launch criminal prosecution against the manufactures for their having violated provisions of S.17 and 18 of the Act, but if they chose at the first instance to take action for such violation by resorting to the Guidelines framed under Drugs and Cosmetics Act amendment 2008 for taking action on samples of drugs found to be spurious or not of standard quality, wherein specific penalties have been provided for minor defects, it ought not have initiated criminal prosecution against the company.
30. Leaving everything aside, this court after having scanned entire material placed on record by respective parties, finds that the prosecution launched by respondents, if permitted to continue would result in sheer abuse of process of law, because material collected on record in support of complaint by the Department, itself does not support the case of the prosecution. Material collected on record by the Department in support of complaint, if perused in its entirety, nowhere suggests that the prosecution is likely to succeed. In case prosecution in the case at hand, is allowed to continue, it would unnecessarily expose the petitioners to protracted trial.
31. Learned Chief Judicial Magistrate, Nahan, vide order dated 8.5.2018, proceeded against accused for theirs having committed offence punishable under Ss.18(a)(i) and 17 of Act but if aforesaid order is perused in ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 21 its entirety, it nowhere suggests that learned Court below, before issuing summons, made an effort, if any, to peruse the material placed on record by Department in support of the complaint. As has been observed herein above, summoning of an accused in criminal case is a serious matter because .
summoning of accused in criminal case not only causes humiliation to the person concerned but also casts stigma on the credibility of the person so summoned. No doubt, while summoning, two witnesses are examined by court in support of the contents of the complaint, but that is not sufficient to set criminal law into motion, rather, before doing that, court issuing summoning order is required to apply its mind to the facts of case and law applicable thereto, so that no injustice /prejudice is caused to the person summoned. Court is required to examine the nature of allegations made in the complaint and the evidence, oral and documentary adduced in support thereof. Magistrate, cannot be a silent spectator rather, with a view to infer prima facie case, it is required to scrutinize the record and analyze the statements recorded in support of complaint vis-à-vis the allegations contained in the complaint, so that before issuing process, it arrives at a definite conclusion that prima facie offence has been committed by the person proposed to be summoned.
32. In the case at hand, court below has merely recorded that it is satisfied that there exist sufficient grounds to proceed against accused for the commission of offence under S. 18(a)(i) and S.17 punishable under S.27(d) of Act, but no reason has been assigned in support thereof. Had learned court below bothered to look into material adduced on recorded by Drug Inspector, probably, learned court below would not have issued summoning order. ::: Downloaded on - 31/01/2022 23:01:14 :::CIS 22 Summoning order being totally non-speaking and devoid of any reason otherwise is not sustainable.
33. Consequently in view of detailed discussion made herein above as well as law laid down by Hon'ble Apex Court, this court finds sufficient merit in .
the present petition, which is accordingly allowed. Summoning order dated 8.5.2018 (Annexure P-5) as also the complaint (Annexure P-1) are quashed and set aside qua the petitioners herein only. All pending applications also stand disposed of. Interim directions, if any, stand vacated.
.
(Sandeep Sharma), Judge September 6, 2021 (vikrant) ::: Downloaded on - 31/01/2022 23:01:14 :::CIS