Himachal Pradesh High Court
Decided On: 16.07.2024 vs State Of Himachal Pradesh on 16 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:6047
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
Cr.MMO No.1196 of 2022
Decided on: 16.07.2024
__________________________________________________________
Norang Rai and another ...........Petitioners
Versus
State of Himachal Pradesh ....Respondent
__________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner : Ms. Shalini Thakur and Mr. Parveen
Chandel, Advocates.
For the Respondent : Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C. Verma, Additional
Advocates General.
_______________________________________________________________
Sandeep Sharma, Judge (oral):
By way of instant petition filed under S.482 CrPC, petitioners, who are accused Nos. 1 and 2 in complaint No. 04/2018 (Annexure P-1) filed under Section 18(a)(i) read with Section 17 and punishable under Setion 27(d) of the Drugs and Cosmetics Act, 1940 and Rules, 1945 made thereunder, have approached this Court, for quashing of the complaint (Annexure P-
1) pending adjudication in the court of learned Judicial Magistrate First Class, Nahan, District Sirmaur, Himachal Pradesh titled State of Himachal Pradesh v. Norang Raj and others, summoning orders dated 8.5.2018 (Annexure P-2) and all the consequential proceedings, qua the petitioners..
::: Downloaded on - 02/08/2024 20:31:36 :::CIS 22. 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, 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- petitioner no. 2 supplied one Lakh tablets of Dicyclomine 10 mg. Drugs Inspector Hqrs Nahan, Sirmaur, after having seen some report published on social media that the wrapper containing tablet Dicyclomine has 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? Pursuant to aforesaid communication, Chief Pharmacist o/o Chief Medical Officer, Sirmaur at Nahan informed the Drugs 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 11.08.2017 and as on 21.11.2017, 66,650 tablets are lying in ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 3 District Drugs 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 Rajpura 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 labelled.
3. After having noticed aforesaid illegality allegedly committed by manufacturer of drug namely Dicyclomine, Drugs Inspector, Hqrs, Nahan, drew samples of aforesaid drug from the District Drugs Store, Sirmaur on 21.11.2017 under the provisions of Drugs and Cosmetics Act and Rules, 1945, for the purpose of testing and analysis. At the same time, Drugs Inspector, H.Q. Nahan, frizzled 64850 tablets on one Form-15 and 1600 tablets on a separate Form 15. The sample was referred to Government Analyst, Composite Testing Laboratory Kandaghat, for test and analysis on Form 18 through registered post, who declared the said drug in question to be of 'Not of Standard Quality' vide report No. CTL-Drugs/2016-7732 dated 22.12.2017, for the reason that, "The tablet strips were labelled as Dicyclomine tablets IP. Though ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 4 composition details stamped on the tablet strips stated that each tablet contains 0.5 mg of Dexamethasone, but on analysis, the .
tablets were found to have contained 9.54 mg of Dicyclomine and Dexamethasone was found absent."Thereafter, vide letter no.
HFW-NHN (Drugs)/2017-132 dated 02.01.2018, Chief Pharmacist o/o Chief Medical Officer, Nahan was intimated by the Drugs Inspector regarding drugs not being of standard quality and he was directed to disclose the name and address of the firm, from where the drugs in question were procured. In response, Chief Pharmacist, vide letter no. HFW-N(storekeeper)/2017/15 dated 04.01.2018, disclosed that he had procured the drugs in question from M/s Novex Healthcare, 1st Floor, Plot no. 1, Sector 2, Parwanoo, Solan vide bill no. 3122 dated 11.08.2017. Further, M/s Novex Healthcare was directed under Section 18-A of the Act to disclose the name and address of the firm from where they procured the said batch of drugs and in response, vide letter no.
NIL, the firm disclosed that firm had purchased the drugs in question from M/s Therawin Formulations 69-71, Jasmeet Nagar, near Vita milk plant, Ambala, Haryana vide invoice no. GM-114 dated 09.08.2017.
::: Downloaded on - 02/08/2024 20:31:36 :::CIS 54. In the meantime, Drugs Inspector, Abhinav Kapoor CDSCO, sub zone Baddi also provided a Joint .
Investigation/Inspection Report at the manufacture level through e-
mail to DI, Nahan and concluded that impugned drug product is deemed as misbranded as per Section 17 of the Act. M/s Therawin Formulations was intimated through registered post vide letter no.
HFW-NHN(drugs)/2017-155 dated 30.01.2018, about the drugs not being of standard quality and the firm was directed to explain its position. Further, aforesaid firm was also directed to stop the sale and distribution of the said product with immediate effect and to immediately withdraw the sold/supplied product from market/field.
In response, aforesaid firm replied vide letter no. TW/2018/129 dated 24.02.2018 that they had neither supplied Dexamehasone tablets, nor put any such contents in the tablets, however a printing error had occurred on the aluminum foil as words 'Dexamethsdone I.P 10mg' were mentioned instead of 'Dicyclomine Hydrochoride I.P 10mg', which mistake was also accepted by the aluminum roll printer.
5. Vide letter Ref HFW-NHN(Drugs)2017-162 dated 12.03.2018, entire case alongwith all the documents pertaining to the case and investigation report was sent to the State Drugs ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 6 Controller, Baddi, Solan for necessary directions and after carefully examining the record, State Drugs Controller, Baddi, .
Solan accorded sanction to prosecute the offenders for the contravention of Section 18(a)(i) read with Section 17 of the Act, with directions to seize the stock of drugs vide letter no HFW-
H(drugs)148/07-350. Subsequently, on 23.04.2018 as per directions of State Drugs Controller, the said drugs were seized on Form-16 and custody orders, as detailed below, were taken from learned Judicial Magistrate First Class, Nahan in this regard.
6. Vide order dated 08.05.2018, learned Judicial Magistrate, 1st Class, Nahan, District Sirmaur, on complaint (Annexure P1) issued summons to the petitioners as well as to other accused named in the complaint. Being aggrieved and dissatisfied with the summoning order issued by the learned Court below, the manufacturer filed quashing petition before this Court for quashing the summoning order alongwith the main complaint against them, and such petition was allowed and orders dated 08.05.2018 were quashed, vide judgment of this Court in case titled Virender Kansal anr vs. State of Himachal Pradesh in Cr.MP(M) u/s 482 CrPC No. 362 of 2019 dated 06.09.2021.
::: Downloaded on - 02/08/2024 20:31:36 :::CIS 77. Being aggrieved and dissatisfied with the summoning order issued by learned Court below, present petitioners, being .
supplier/distributors, have also approached this court in the instant proceedings for quashing of summoning order dated 8.5.2018 as well as the main complaint against them.
8. 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 case of the petitioners, in a nutshell is that since complaint against the manufacturer, M/s Therawin Formulations is quashed and set aside by this court, 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 the petitioners, being supplier/distributors.
9. Precisely, the grouse of the petitioners as highlighted in the petition and further canvassed by Mr. Praveen Chandel, Advocate is that petitioners are suppliers/distributors of the drug in question and are not at all involved in the manufacturing process.
Mr. Praveen Chandel, learned Counsel for the petitioners states that since complaint against the manufacturers itself stands quashed, there is otherwise nothing left against the petitioners. He states that since Dicyclomine tablet were manufactured by M/s Therawin ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 8 Formulations, and it, after having received information with regard to printing mistake, not only withdrew the entire stock of .
Dicyclomine tablets but also made available affidavit of the printer i.e. M/s Royal Pharma Packers, that due to some printing error Dicyclomine Hydrochloride tablet IP 10 mg was wrongly printed on the wrapper, there was no occasion to launch prosecution against the petitioners, who are otherwise supplier/distributor.
10. Learned Counsel for the petitioners submitted that on 03.04.2018, State Drugs Controller cum Licensing Authority, while exercising power under Rule 85(2) of the Drugs and Cosmetics Amendment Act, 2008, suspended permission granted in favour of the manufacturers by way of which they were already punished and thus there was no occasion to initiate criminal proceedings against them, which fact was also appreciated by this Court in the Virender Kansal Case (supra). He submitted that the tablet strips, covered by aluminium foil, were packed inside the paper tablet box on which the formulation of drug was printed correctly, and petitioners being supplier/distributor of drugs could only sell the drugs in packed paper boxes, as a result of which errors printed on the aluminium foil packing were not noticed by the petitioners. Therefore, petitioners have no role in either misbranding or in manufacturing ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 9 the drugs. Learned Counsel for the petitioners further submitted that no reason has been assigned by the learned trial Court below .
before issuing summons and it merely recorded that it is satisfied that there exists sufficient grounds to proceed against the accused for commission of offence under Sections 18(a)(i) and 17 punishable under Section 27(d) of the Act. He also submitted that petitioners had filed an application before learned Judicial Magistrate, 1st Class, Nahan. Sirmaur under Sections 251 and 258 of CrPC for stopping the proceedings against them but same has been dismissed on the ground that powers of High Court under Section 482 cannot be equated with powers of this Court.
11. 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-petitioner no. 2, Parwanoo for supply of drugs and accordingly petitioner supplied Dicyclomine tablets, which is a generic medicine. While refuting the aforesaid contentions of petitioners, Mr. B.C. Verma, Additional Advocate General submits that petitioners, being supplier/distributor are responsible for quality of products as well as for adhering the provision of the Act for ensuring the safety of consumers. He submitted that since there was mention of ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 10 Dexamethasone on the wrapper of aforesaid tablets of Dicyclomine, matter came to be highlighted on 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 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 Section 17 punishable under Section 27(d) of the Act. He further submitted that after chemical analysis of drugs in question, salt i.e. Dexamethasone was not found in the tablets of Dicyclomine, and hence the drugs were found to be misbranded and as such Drugs Inspector rightfully instituted the proceedings against petitioners.
12. Before considering the rival submissions having been made by learned counsel representing the parties vis-à-vis prayer made in the instant petition, this Court at the first instance deems it necessary to discuss/elaborate scope and competence of this Court ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 11 to quash the complaint as well as consequent proceedings, if any, pending in the competent court of law while exercising power .
under Section 482 Cr.P.C.
13. A three-Judge Bench of the Hon'ble Apex Court in case titled State of Karnataka vs. L. Muniswamy and others,1977 (2) SCC 699, held that High Court while exercising power under Section 482 Cr.PC is entitled to quash the proceedings, 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.
14. Subsequently, in case titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335,the Hon'ble Apex Court while elaborately discussing the scope and competence of High Court to quash criminal proceedings under Section 482 Cr.PC laid down certain principles governing the jurisdiction of High Court to exercise its power. After passing of aforesaid judgment, issue with regard to exercise of power under Section 482 Cr.PC, again came to be considered by the Hon'ble Apex Court in case bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017) titled Vineet Kumar ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 12 and Ors. v. State of U.P. and Anr., wherein it has been held that saving of the High Court's inherent powers, both in civil and .
criminal matters, is designed to achieve a salutary public purpose i.e. court proceedings ought not to be permitted to degenerate into a weapon of harassment or prosecution.
15. The Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, relying upon its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, reiterated that High Court has inherent powers under Section 482 Cr.PC., to quash the proceedings 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.
In the aforesaid judgment, the Hon'ble Apex Court concluded that while exercising its inherent jurisdiction under Section 482 of the Cr.PC,, Court exercising such power must 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 overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. Besides above, the ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 13 Hon'ble Apex Court further held that 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. In the aforesaid judgment titled as 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 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, ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 14 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, 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, ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 15 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 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 there from) specially when, it is clear that the same would not conclude in the conviction of the accused."
16. Hon'ble Apex Court in case titled Amit Kapoor v.
Ramesh Chander and Anr, (2012) 9 SCC 460 held that framing of a charge is an exercise of jurisdiction by the trial Court in terms of Section 228 of the Cr.PC unless the accused is discharged under Section 227 Cr.PC. The Hon'ble Apex Court has further held that under the Section 227and 228 Cr.PC, the Court is required to consider the 'record of the case' and the documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall proceed to frame the charge. The Hon'ble Apex Court has further held that once the facts and ingredients of the Section concerned exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. Most importantly, the Hon'ble Apex Court in the ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 16 aforesaid judgment has concluded that the satisfaction of the Court in relation to the existence of constituents of an offence and the .
facts leading to that offence is a sine qua non for exercise of such jurisdiction. At this stage, this court deems it fit to reproduce the following paras of aforesaid judgment having been passed by the Hon'ble Apex Court as follows:-
"27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.::: Downloaded on - 02/08/2024 20:31:36 :::CIS 17
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court .
should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 18 broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide .
admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist."
17. The Hon'ble Apex Court in judgment titled L. Krishna Reddy v. Stateby Station House Officer and Ors, (2014) 14 SCC 401, has held that Court is neither substitute nor an adjunct of the prosecution, rather once a case is presented to it by the prosecution its bounden duty is to sift through the material to ascertain whether prima-facie case has been established, which would justify and merit the prosecution of a person. The relevant paras are as follows:-
"10. Our attention has been drawn to Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia as well as K. Narayana Rao but we are unable to appreciate any manner in which they would persuade a court to continue the prosecution of the parents of the deceased. After considering Union of India v. Prafulla Kumar Samal, this Court has expounded the law in these words: (Stree Atyachar Virodhi Parishad case, SCC p. 721, para 14) "14. ... In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 19 he considers that r there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for .
putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into"
11. The court is neither a substitute nor an adjunct of the prosecution. On the contrary, once a case is presented to it by the prosecution, its bounden duty is to sift through the material to ascertain whether a prima facie case has been established which would justify and merit the prosecution of a person. The interest of a person arraigned as an accused must also be kept in perspective lest, on the basis of flippant or vague or vindictive accusations, bereft of probative evidence, the ordeals of a trial have to be needlessly suffered and endured. We hasten to clarify that we think the statements of the complainant are those of an anguished father who has lost his daughter due to the greed and cruelty of his son-in-law. As we have already noted, the husband has taken his own life possibly in remorse and repentance. The death of a child even to avaricious parents is the worst conceivable punishment."
18. 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 ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 20 is brought to the notice of the court, then the Court would be justified in 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".
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 ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 21 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."
19. 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.
20. Also, reliance is placed upon a judgment rendered by Hon'ble Apex Court in Pepsi Foods Ltd. v. Special Judicial 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:
"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 ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 22 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."
21. Careful perusal of aforesaid law taken note herein above, clearly reveals that power under Section 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 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 ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 23 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.
22. 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?
23. No doubt, in the case at hand, it is not in dispute that M/s Novex Healthcare-petitioner no. 2, Parwanoo placed an order to supply drug namely Dicyclomine IP 10mg and there was nothing in supply order to show that tablet of Dicyclomine contained the salt Dexamethasone. Tablets supplied by M/s Novex ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 24 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/distributor of drug in question contravened provisions of Sections 17 and 18 of the Act. Since the drug in question was supplied/distributed by the petitioners herein, they came to be named in the complaint instituted at the behest of Drugs 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 manufacturers. 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.
24. The complaint filed by Drugs Inspector in the competent court of law nowhere suggests that tablet Dicyclomine ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 25 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 petitioners had rightly supplied the drug Dicyclomine as per supply order placed by Chief Medical Officer, Sirmaur at Nahan.
25. Interestingly, in the case at hand, Department on one hand, initiated/launched criminal prosecution against petitioners herein for having violated provisions of Sections 17 and 18(a)(i) 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, for taking action on samples of drugs declared spurious or not of standard quality under Drugs and Cosmetics (Amendment) Act 2008, banned manufacturers from manufacturing drugs for a period of three months. Since as per aforesaid Guidelines, minor penalty was required to be imposed in view of offence allegedly committed by manufacturers, Department barred the manufacturing firm from manufacturing the drug for three months, and as such there was no ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 26 occasion for the Department to initiate criminal prosecution in the competent court of law. Subsequently, by way of indulgence of this .
court, summon orders dated 08.05.2018 as also complaint of Drugs Inspector was quashed and set aside. Otherwise also, petitioners are the suppliers/distributors, and since proceedings against the manufacturers are quashed, this court finds no reason to unnecessarily prosecute the petitioners herein.
26. Leaving everything aside, this court after having scanned entire material placed on record by respective parties, finds that the prosecution launched by respondent, 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.
27. Learned Judicial Magistrate, 1st Class, Nahan, vide order dated 08.05.2018, proceeded against accused for having committed offence punishable under Ss.18(a)(i) and 17 of Act but ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 27 if aforesaid order is perused in 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. 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.
28. In the case at hand, court below has merely recorded the reason regarding its satisfaction that there exist sufficient ::: Downloaded on - 02/08/2024 20:31:36 :::CIS 28 grounds to proceed against accused for the commission of offence under Sections 18(a)(i) and 17 punishable under Section 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 Drugs Inspector, probably, learned court below would not have issued summoning order. Summoning order being totally non-speaking and devoid of any reason otherwise is not sustainable.
29. 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 08.05.2018 (Annexure P2) as also the complaint no. 04/2018 (Annexure P1) 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 July 16, 2024 ::: Downloaded on - 02/08/2024 20:31:36 :::CIS