Himachal Pradesh High Court
Atul Kumar Gupta vs State Of Himachal Pradesh on 26 February, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 679 of 2022 Reserved on: 11.12.2023 .
Date of Decision: 26.02.2024
Atul Kumar Gupta ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 .
For the Petitioner : Mr. G.S. Swahney, Advocate,
For the Respondent : Mr R.P.Singh, Deputy Advocate
General.
Rakesh Kainthla, Judge
The Drug Inspector filed a complaint asserting that he had received a secret information that spurious and illegal drugs were being manufactured by M/s Soliance Pharma Products, Village Surajpur, Tehsil Paonta Sahib, H.P. The drug offices of Haryana seized a huge quantity of drugs from the Godown of M/s Lincoln Pharmaceuticals Limited, Village Kanpur, Tehsil Saha, District Ambala (HR). An F.I.R.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 27/02/2024 20:30:13 :::CIS 2was lodged to this effect with SHO P.S. Saha(HR).. The police sealed the premises of M/s Himalayan Laboratories, Village Surajpur, Tehsil .
Paonta Sahib on 13.07.2021 and recorded an entry No. 56(A), dated 13.07.2011 in the daily diary. The Drug Inspector sent a letter to SDM, Paonta Sahib to depute an Executive Magistrate. The Drug Inspector opened the sealed premises in the presence of the Executive Magistrate and searched it. A huge quantity of spurious, misbranded, loose drugs without labels and other mandatory information was recovered during search. Name of M/s N.L.P. Organics Pvt. Limited, M/s Soliance Pharma Products, and M/s M. Sea Pharmaceuticals as manufacturers were mentioned on some of the drugs. The premises violated the provisions of Schedule M of the Drugs and Cosmetics Act 1940 and Rules framed there under. The drugs, machinery and other materials were seized by the Drug Inspector in 49 boxes and 7 poly bags. These were sealed.
Panchnama was prepared. Atul Kumar Gupta, the present petitioner, visited the spot and he was asked to produce the documents and explain the manufacturing of spurious and misbranded drugs. He failed to submit any reply and stated that he had sublet the premises to one Saurav Behl; however, he could not produce any proof of this fact. He was asked to sign the documents but he refused to do so. M/s Himalayan Laboratories was not authorized to manufacture the drugs belonging to ::: Downloaded on - 27/02/2024 20:30:13 :::CIS 3 or bearing the name and address of the firms M/s NLP Organics Pvt. Ltd, M/s M Sea Pharmaceuticals and M/S Soliance Pharma Products. 5 (Five) .
samples were drawn. A request was made to SHO P.S. Paonta Sahib to register the F.I.R. The Police registered the F.I.R. No. 220 of 2011 dated 15.07.2011 at Police Station Poanta Sahib. The police conducted the investigation. The custody orders were obtained from the Court. The drugs were sent to Government Analyst Kandaghat for analysis. A report was issued. 4 (Four) Samples were stated to be not of standard quality and the samples were declared misbranded. The Drugs Control Officer Ambala-I, Gurcharan Singh and the Drugs Control Officer Ambala-II, Sunil Dhaiya attended the office of the Drugs Inspector, Nahan. A letter was written to them with a request to provide the documents of their case. They submitted documents vide letter dated 21.07.2011, which show that the drugs were manufactured by M/s Soliance Pharma Products and were seized by Drugs Controller Officer, Amabala from the premises of M/s Lincoln Pharmaceuticals Limited.
M/s Lincoln Pharmaceuticals Limited wrote a letter to S.P.Solan, H.P. on 24.10.2011 that they had made complaints against M/s Soliance Pharma Products, C/o M/s Himalayan Laboratories, Village Surajpur, Poanta Sahib, H.P. regarding the supply of spurious and illegal drugs after forging the copies of licenses. The accused intentionally ::: Downloaded on - 27/02/2024 20:30:13 :::CIS 4 manufactured the illegal drugs and sold it to M/S Lincoln Pharmaceuticals Limited with forged documents. The reports were sent .
to M/s N.P. Organics Pvt. Limited under Section 25 of the Drugs and Cosmetics Act; however, the registered letter was received with the remarks that the addressee had left Bhiwadi. One copy was sent to M/s M. Sea Pharmaceutical who sent a reply that they do not manufacture the products Solvit Tablets. This shows that the drugs were being manufactured in the name of other manufacturers.
police procured the Rent Deed and credit certificates from Atul Gupta, which show that he had sublet the premises to M/s Soliance Pharma The Product through its Proprietor Saurabh Behal. These were seized by the police. No owner of any licensed Pharma manufacturing unit can sublet the premises to any other person or Firm without approval from the competent authority. The consignment papers, Form-26 dated 27.06.
2011 and Invoice No. 1055 dated 26.06.2011 from Satwinder Singh were sealed by the police. M/s Himalayan Laboratories was found with drugs and packing material bearing the name of the manufacturer which does not exist and does not possess a valid drug license; hence, such drugs are spurious as defined under Section 17-B(c) of the Drugs and Cosmetics Act 1940. The Drugs Licensing Authority, also informed that no license was issued. License Nos. SL-MNB/11/57 and SL-MB/11/58 ::: Downloaded on - 27/02/2024 20:30:13 :::CIS 5 were granted in favour of M/s NBZ Pharma Limited and M/s IPCA Laboratories Limited, respectively. Hence, the accused had fraudulently .
used fake licenses for manufacturing and selling the drugs. Petitioner Atul Gupta being the proprietor of M/s Himalayan Laboratories had filed an application for release of the factory premises/business,, which is pending before the learned Judicial Magistrate First Class, Court No.1, Paonta Sahib. The permission to launch the prosecution was granted by the State Drugs Controller. The accused was manufacturing the drugs purporting to be the drugs of some other manufacturer. The drugs were not of standard quality and were misbranded. Therefore, the complaint was filed before the Court for taking action against the accused.
2. Accused/petitioner Atul Gupta filed a petition under Section 482 of Cr.P.C. for quashing the criminal proceedings pending in the Court of learned Special Judge, Simour at Nahan under the Drugs and Cosmetics Act, 1940. It was asserted that the prosecution had been launched against the petitioner to harass him. M/s Himalayan Laboratories has not been arrayed as an accused and the complaint is not maintainable in the absence of the Company. The liability of the petitioner will only arise after the Company is held to be liable. The petitioner was running the factory in the name and style of M/s Himalayan Laboratories, which is situated at Village Surajpur, Tehsil ::: Downloaded on - 27/02/2024 20:30:13 :::CIS 6 Paonta Sahib, District Simrour, H.P. It is a proprietorship Firm owned by the petitioner and was holding the license on Forms No. 25 and 28, .
on 31.07.2008, which was valid till 30.07.2013. The petitioner rented the shed to M/s Soliance Pharma Products. The Rent Deed and the Loan License Manufacturing Agreement were executed at Surajpur, Tehsil Paonta Sahib, District Simrour, H.P. and the agreement was effective w.e.f. 05.05.2010 and it was valid till 04.05.2015. M/s Soliance Pharma Products was responsible for the production and testing of the drugs.
The know-how and the informant shall be the sole proprietary of M/s Soliance Pharma Products. There was non-compliance of Section 25(3) of the Act.No intimation was ever made to the petitioner. The petitioner has been deprived of a valuable right to adduce evidence and to controvert the report of the Government Analyst. No notice was ever served upon the petitioner that the sample of Drugs was found to be below standard. The complaint was filed after the shelf life of the drug had expired and the complaint was not maintainable. M/s N.L.P. Organics Pvt. Ltd. and M/s M. Sea Pharmaceuticals were not impleaded as accused. Therefore, it was prayed that the present petition be allowed and the complaint pending before the learned Trial Court be quashed.
3. Respondent opposed the petition by filing a reply, asserting that the petitioner manufactured the spurious drugs by illegally ::: Downloaded on - 27/02/2024 20:30:13 :::CIS 7 subletting the license to M/s Soliance Pharma Products. The drugs were seized at Haryana and information was supplied to Station House .
Officer (SHO), Paonta Sahib. An action was taken thereafter. The petitioner had filed a petition under Section 482 of Cr.P.C., which was dismissed by the Court on 13.07.2016. This fact was concealed from the Court. The petitioner is not entitled to invoke the extraordinary jurisdiction of this Court. Section 34 of the Act does not apply to the concern.
r to present case because M/s Himalayan Laboratories is the sole proprietorship The petitioner was involved manufacturing of spurious, misbranded and sub-standard drugs for in the sale to the public. The petitioner was asked to produce the documents but he absconded from the spot. The reports of the sample of the Firm were attached to the case file and copies of the same were supplied to the petitioner. The petitioner refused to sign the documents and there was no prejudice to the petitioner. The copies were supplied to M/s NLP Organics but the same was returned with the report that the Firm had left Bhiwadi. The copies were also sent to M/s M. Sea Pharmaceuticals.
M/s Himalayan Laboratories was not authorized to manufacture the drugs belonging to M/s NLP Organics, M/s M. Sea Pharmaceuticals and M/s Soliance Pharma Products. M/s M. Sea Pharmaceuticals stated that they never manufactured the Solvit Tablets but these tablets were ::: Downloaded on - 27/02/2024 20:30:13 :::CIS 8 recovered from the premises. Hence, it was prayed that the petition be dismissed.
.
4. I have heard Mr. G.S. Swahney, learned counsel for the petitioner and Mr. R.P. Singh, learned counsel for the respondent/State.
5. Mr. G.S. Swahney, learned counsel for the petitioner submitted that M/s Himalayan Pharmaceuticals has not been impleaded as accused, which is a violation of Section 34 of the Drugs and Cosmetics Act,1940. He relied upon the judgment of the High Court of Punjab and Haryana in Sardar Bhupidner Singh vs Green Feeds (M/s) through its Partner Vipin Kumar 2022(3) Herald (P&H)2498. He submitted that a copy of the report was not supplied to the petitioner and there was a violation of Section 25 of the Drugs and Cosmetics Act,1940. He has relied upon the judgment of this Court in Meenakshi Jain vs State of H.P. & another, passed in CRMMO No. 433 of 2019, decided on 01.08.2022, in support of his submission. He prayed that the petition be allowed and proceedings pending before the learned Trial Court be quashed.
6. Mr R.P.Singh learned Deputy Advocate General for the respondent-State submitted that the proprietorship concern is not a company within the meaning of Section 34 of the Drugs and Cosmetics Act,1940 and it was not required to be impleaded as a party. The ::: Downloaded on - 27/02/2024 20:30:13 :::CIS 9 petitioner absconded from the spot and the documents could not be supplied to him. The petitioner had filed a petition earlier, which was .
dismissed and this fact was concealed from the Court. Therefore, he prayed that the present petition be dismissed.
7. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
8. The copy of the judgment in Cr.MMO No. 76 of 2015, titled Atul Kumar Gupta vs. State of H.P. has been filed, which shows that the present petitioner had sought the quashing of summons in case No. 6- N/7 of 2014. The Court dismissed the petition after considering the documents and pleas raised before it. This fact was not mentioned in the present petition.
9. It was laid down by the Hon'ble Supreme Court in Bhisham Lal Verma v. State of U.P., 2023 SCC OnLine SC 1399 that a person approaching the High Court under Section 482 of Cr.P.C. should take all the pleas and it is impermissible to file the petitions in piecemeal. It was observed:
10. In S. Madan Kumar v. K. Arjunan 2006 SCC OnLine Mad 94, the Madras High Court observed that a person who invokes Section 482 Cr. P.C. should honestly come before the Court raising all the pleas available to him at that point of time and he is not supposed to approach the Court with instalment pleas. It was further ::: Downloaded on - 27/02/2024 20:30:13 :::CIS 10 observed that there may be a change of circumstances during the course of criminal proceedings which would give scope for the person aggrieved to invoke the inherent jurisdiction of the Court, but when he is posted with all the facts and circumstances of a .
case, he cannot withhold part of it for the purpose of filing yet another petition seeking the same relief.
11. We are in complete agreement with these observations of the Madras High Court. Though it is clear that there can be no blanket rule that a second petition under Section 482 Cr. P.C. would not lie in any situation and it would depend upon the facts and circumstances of the individual case, it is not open to a person aggrieved to raise one plea after the other, by invoking the jurisdiction of the High Court under Section 482 Cr. P.C., though all such pleas were very much available even at the first instance. Permitting the filing of successive petitions under Section 482 Cr. P.C. ignoring this principle would enable an ingenious accused to effectively stall the proceedings against him to suit his own interest and convenience, by filing one petition after another under Section 482 Cr. P.C., irrespective of when the cause therefore arose. Such abuse of process cannot be permitted.
10. It was held in R. Annapurna v. Ramadugu Anantha Krishna Sastry, (2002) 10 SCC 401: 2004 SCC (Cri) 1135: 2000 SCC OnLine SC 1143 that where no development had taken place after the rejection of the earlier petition, the second petition is not maintainable. It was observed:
6. There can be no two opinions that the order dated 28-1-1995 has become final. Learned counsel for the respondents made an endeavour to show that it is open to the same parties to move the High Court once again on causes which developed subsequent to 28-1-1995. We are not considering that contention in the present case, for the second petition for quashing was not made on the strength of anything which developed subsequent to 28-1-1995 but only on the facts which subsisted before that date. If that be ::: Downloaded on - 27/02/2024 20:30:13 :::CIS 11 so, the High Court had no power to upset the order dated 28-1-
1995 with the help of any subsequent order though in this case the High Court did so without being informed of the prior order.
11. In the present case there is no change in the circumstances.
.
The first petition was filed to quash the summoning order and the complaint. The present petition has also been filed to seek the same relief. There is no change in the circumstances and the present petition is not maintainable and is liable to be dismissed on this short ground alone.
12. In view of the binding precedents of the Hon'ble Supreme Court of India, as noticed above, the present petition cannot be allowed.
Hence, the present petition fails and the same is dismissed. Record of the learned Trial Court be returned forthwith. Parties are directed to appear before the learned Trial Court through their respective counsel on 27.03.2024.
13. The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 26th February, 2024 (ravinder) ::: Downloaded on - 27/02/2024 20:30:13 :::CIS