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Jammu & Kashmir High Court

M/S Ramson Remedies, Pharmaceutical ... vs State on 24 November, 2017

Author: Sanjay Kumar Gupta

Bench: Sanjay Kumar Gupta

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        HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CRTA No.04/2017 & MP No.01/2017
                                                                    Date of decision:-24.11.2017

M/S Ramson Remedies, Pharmaceutical Manufacturer                             Vs.         State
Coram:
                  Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:

For the applicant/petitioner(s)   :   Mr. Sachin Gupta, Advocate.
For the Respondents(s)            :   Mr. H.A. Siddiqui, Sr. AAG.

i/      Whether to be reported in                 :                 Yes/No
        Press/Media
ii/     Whether to be reported in                 :                 Yes/No
        Digest/Journal

1. The instant application has been moved under Section 526 of Code of Criminal Procedure for transfer of Criminal Complaint titled, "State through Drug Inspector Vs. M/S Ramson Remedies" pending before the Court of learned Special Mobile Magistrate (Sub-Judge), Pulwama to any other competent Court preferably at Jammu on account of prevailing law and order problem in Kashmir valley.

2. The grounds taken in the instant application are that the applicant/petitioner is an authorized person appointed by the Firm, i.e., M/S Ramson Remedies having its registered office at Manufacturers, 186-187, Industrial Focal Point, Metha Road, Amritsar, (Punjab), India. The present petition is maintained by the Manager of the Company, who has been duly authorized by the firm. The respondent has filed a criminal Complaint under Section 18 (a) (i) read with Section 27 (d) of Drugs and Cosmetics Act, 1940 before the Court of learned Special Mobile Magistrate (Sub-Judge), Pulwama and the petitioner has caused his respective appearance before the Court below. The above said Complaint is pending for appearance of other accused persons and the Court below has issued the process against them.

3. The proceedings initiated by the respondent against the petitioners have been instituted upon a Complaint and hence, the procedure laid down in the Code of Criminal procedure of trial of summons cases is to be followed. Further the offences alleged are punishable upto an imprisonment, which may extend to two years and with fine. The applicant/petitioner is filing the present Criminal Transfer Application, seeking transfer of the above mentioned Complaint from Pulwama to any other Court of competent jurisdiction preferably Jammu on account of prevailing law and order problem in Kashmir Valley and also on other grounds, which are detailed herein as under:-

(a) Due to law and order problem and curfew prevailing in Kashmir province, it is not possible for the petitioners, who are the residents of outside of J&K to visit Kashmir province for causing appearance on each and every date of hearing. The petitioners on account of prevailing situation cannot attend the proceedings before the Court below under atmosphere of fear and threat.

(b) The petitioner is facing a trial in Drugs and Cosmetics Act, the subject of Drugs and Cosmetics is technical subject and it requires expertise to conduct a trial. None of the counsel from Jammu is agreeing to visit the Court in Pulwama. Because of this reason also, the trial of the petitioner is seriously prejudiced. The applicant being constitutionally granted of having fair trial, the same will be diluted, if the case is not transferred.

(c) The District Pulwama of Kashmir Province is highly infested with the militancy and there is no proper arrangement for stay in Pulwama. It is submitted that during the winter season, the roads connecting the Kashmir province and especially Pulwama remains closed due to heavy snowfall. It is further submitted that the town remains shut most of the time because of some incidents related to Cr.T.A. No.04/2017 Page 2 of 5 3 militancy. It is also submitted that the petitioner had been causing his appearance regularly since 2013, but during the last one year, he could not appear in Court because of law and order problem or heavy snow fall. The petitioner was diligent in appearing before the Court since the inception of the Complaint. For the last one year, the situation in Pulwama Town is the worst because of the militancy, law and order problem and heavy snowfall. It is also submitted that there is no place to stay in Pulwama.

(d) The applicant is invoking powers of the Hon'ble High Court under Section 526 of Code of Criminal Procedure and the Court can transfer a case and pass necessary orders under circumstances, which will tend to the general convenience of the parties or witnesses.

(e) The main Office of respondent/complainant is based at Jammu, as such, the prayer of the petitioner can be allowed. The respondent being a complainant in the Complaint is also travelling all along from Amritsar to Pulwama.

(f) The present Criminal Transfer Application needs to be allowed on the ground that since the proceedings pending before the Court below are instituted upon a complainant and the respondent/complainant can come to any place for deposing/making statement as and when the matter is fixed for evidence of the complainant instead of coming to Srinagar.

(g) The present application needs to be allowed on the ground that almost all the material witness mentioned in the Complaint are in government service only. The rest of the co-accused belongs to Srinagar.

(h) All these grounds have been taken inter alia without prejudice to each other and other grounds shall be urged at the time of hearing and arguments.

4. State has filed the objections, stating therein that the official respondent is a statutory authority duly notified under Section 21 of Drugs and Cosmetics Act for lifting of samples of drugs and also for filing prosecution/complaint under Drugs and Cosmetics Act, 1940 in case, a drug has declared not of standard quality. The official respondent has filed Complaint under Section 18 (a) (i) read with Section 27 (d) of Drugs and Cosmetics Act, 1940 against the Managing Director-M/S Ramson Remedies, Proprietor and the competent person of M/S Burhan Pharmaceutical Distributors Pampore, Proprietor and competent person of M/S Mark Pharmaceuticals Distributors Pampore and Proprietor and competent person of M/S Atlantic Distributors Bemina, Srinagar and the Complaint is pending before the Court of learned Special Mobile Magistrate, Pulwama. In the Complaint, the statement of the complainant- Drugs Inspector as well as Government Analyst has been recorded by the Trial Court and the complainant's evidence stands closed by the Trial Court.

5. I have considered the rival contentions of the parties. The petitioner (Manager)-Sh. Kusum Kumar Sharma S/o Sh. Dina Nath Sharma is the proprietor appointed by the Firm, i.e., M/S Ramson Remedies, Pharmaceutical Manufacturers, having its office at Amritsar, (Punjab), India. The office of the respondent-Drugs Inspector, Pulwama, is also situated at Drugs sand Food Control Organization Muthi, Jammu. In this way, both are the residents of Jammu and both can also easily prosecute the case, at Jammu. No prejudice shall be caused to any party in case, the case is transferred from the Court of learned Special Mobile Magistrate (Sub-Judge), Pulwama to the learned CJM, Jammu.

6. In this view of the matter, the instant application is allowed and the case is transferred from the Court of learned Special Mobile Magistrate (Sub- Judge), Pulwama to learned CJM, Jammu, who may try the complaint Cr.T.A. No.04/2017 Page 4 of 5 5 himself or may transfer it to any other court of competent jurisdiction. Let copy of this order be sent to both the Courts below namely Special Mobile Magistrate (Sub-Judge), Pulwama and CJM, Jammu, for compliance.

(Sanjay Kumar Gupta) Judge Jammu 24.11.2017 Ram Krishan Cr.T.A. No.04/2017 Page 5 of 5