Bombay High Court
Kailash S/O Mannalal Jindal vs The State Of Mah. At The Instance Oif ... on 5 May, 2016
Author: V. L. Achliya
Bench: V. L. Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT NAGPUR
CRIMINAL APPLICATION NO. 1290 OF 2010
Shri Kailash S/o. Mannalal Jindal,
Aged about 49 years, Occu. Business,
R/o. 125, R.N.T. Marg, Indore-452 001. Applicant..
(Orig. Accused No. 1)
VERSUS
The State of Maharashtra,
At the instance of Jugal Kishor Mantri,
Drugs Inspector, Bhandara. Respondent..
ig (Orig. Complainant)
........
Mr S. V. Sirpurkar, Advocate for the applicant
Ms Geeta Tiwari, AGP for respondent/State
..........
CORAM : V. L. ACHLIYA, J.
RESERVED ON : 22nd JANUARY, 2016.
PRONOUNCED ON : 5th MAY, 2016.
PER COURT:
. The applicant/accused No. 1 has preferred this application
u/s 482 of Cr.P.C. for quashing Criminal Case No. 57/1994, pending on the
file of Chief Judicial Magistrate, Bhandara as well as to set aside the order
dt. 26.04.2010 passed in the matter granting permission to complainant to lead
secondary evidence.
2. Before appreciating the submissions advanced, it is necessary to
consider few facts leading to filing of the present application. The respondent
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filed criminal complaint for offence u/s 18(a)(i) r/w Section 16(a) and
punishable u/s 27(d) of Drugs & Cosmetics Act, 1940 (in short "the said Act")
as against nine accused which includes the applicant/accused No. 1 alleging
therein that the accused Nos. 1 to 7 are the Directors of M/s. Dujohn
Laboratories Ltd., Indore-the accused No. 9. Accused No. 8 is the employee
of accused No. 9 - Company, who works in the capacity as Dy. General
Manager. The accused were holding license in Form 28, bearing No. 28689
dt. 22.2.89 valid upto 31.12.93. By virtue of the licence obtained, accused
were permitted to manufacture for sale the Drug known as "Duneuron
Injection 30 ml." along with other products approved by the Drug Controller,
Food and Drug Administration, Bhopal (M.P.). On 17.05.1993, the then Drug
Inspector - Shri. R. D. Damle, visited the premises of M/s. Shri. Gurudeo
Medical Stores, Bada Bazar, Bhandara, Maharashtra and drawn a sample of
Duneuron Injection manufactured by respondent No. 9 - Company, of which
accused Nos. 1 to 7 are the Directors. On analysis of said sample by Govt.
Analyst, it was reported that said sample of drug found to be of not standard
quality as the, Content of "Pyridoxine hydrochloride" in the sample found to
be less than Schedule 'V' limits (41.7% of the labelled amount). As per
procedure prescribed under the Act, the copy of the report was furnished and
the further inquiry was conducted in the matter as per the provisions laid
down under Section 18-A of the said Act, which includes the inquiry about the
purchase details of the drugs in question. In inquiry made with M/s. Gurudeo
Medical Stores, it was revealed that the said drug was purchased from
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M/s. Raj Pharma, General Merchant Market, Gandhibag, Nagpur vide Invoice
No. 2974 dt. 10.05.1993. Therefore, the Drug Inspector made inquiry with
the owner of M/s. Raj Pharma, who, in turn provided the details of purchase
and sale of said Injection. It was informed that, the sample of the drug which
was seized from M/s. Shri. Gurudeo Medical Stores was purchased from M/s.
Jai Medicos, G. M. Market, Nagpur. He also provided the documents to that
effect. On further inquiry made with the owner of M/s. Jai Medicos, Nagpur,
it was disclosed that the said Drug was purchased from M/s. Dujohn
Laboratories Ltd., Indore i.e. accused No. 9, vide Invoice No. I 0029, dt.
19.4.1993. After it was confirmed that said drug was manufactured by
accused No. 9 - Company as provided u/s 23(4)(iii) and Section 25(2) of the
said Act, the copy of test report along with the protocols of the test applied &
sealed counter part of sample was sent to accused No. 9. Thereafter, the
complainant along with Shri. A. M. Dongre, Drug Inspector visited the
accused No. 9 and conducted inquiry and investigation regarding the
manufacturing of said drug with Mr. Kailash Jindal, the accused No. 1 and
Mr Arun Ojha, accused No. 8. At the time of inquiry, the accused Nos. 1 & 8
disclosed that the drug in question was manufactured for sale on or about
08.04.1993 and distributed for sale on or about 19.04.1993. On investigation
conducted in the matter, it was revealed that on or about 17.05.1993 the
accused Nos. 1 to 9 had distributed and sold the said drug namely "Duneuron
Injection 30 ml.", Batch No. 9303 manufactured by them, which was found to
be of not of standard quality and thereby the accused Nos. 1 to 9 contravened
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the provisions of Section 18(a)(i) r/w Section 16(a) and rendered themselves
liable for punishment as per provisions of Section 27(d) of the said Act.
3. The complaint was filed as against accused Nos. 1 to 9. By
order dt. 06.07.1994, the ld. CJM was pleased to issue summons against all
the accused. The accused No. 7 i.e. Reena w/o Kailash Jindal i.e. the wife of
applicant/accused No. 1 moved an application vide Exh. 4 dt. 15.11.1994
raising objection as to territorial jurisdiction of the CJM to take cognizance of
the complaint. Vide order dt. 04.12.1997, the ld. CJM was pleased to allow
the application and quash the proceedings. The accused were discharged.
The order passed by the CJM was challenged by respondent/complainant by
filing Cri. Revn. 04/2002. Vide judgment and order dt. 01.12.2005, the
Sessions Court, Bhandara pleased to allow the revision application and set
aside the order dt. 04.12.1997 passed by CJM and further pleased to restore
the case and directed the learned CJM to dispose of the same as per law.
Accordingly, the case was restored. Accordingly the trial Court proceeded
with the matter. During the pendency of the proceedings, the accused No. 4
i.e. Lalit Bansilal filed Revision Appln. No. 226/2009 before this Court to
quash the process and to discharge the accused. The said Revision Petition
was heard and disposed of by this Court (Coram : A. B. Chaudhari, J.) vide
judgment and order dt. 01.04.2010. The said Criminal Revision was
dismissed with costs of Rs. 5,000/-. The trial Court was directed to proceed
with the case and dispose of the same as expeditiously as possible, in any case
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within a period of four months from the date of order. Thereafter, the trial
Court proceeded with the matter. By way of evidence before charge, the
examination-in-chief of the complainant was recorded. During the course of
recording of evidence, the prosecution has filed application vide Exh. 73 for
permission to lead secondary evidence. In the application, the respondent has
stated that though the original record was directed to be sent back to trial
Court, still the record was destroyed during the course of destruction of old
records. On inquiry, it was revealed that the said record was destroyed on
05.02.1999 though the case was pending. In the circumstances, the
complainant moved an application seeking permission to lead secondary
evidence by producing xerox copies of the originals. On consideration of the
submissions advanced which includes the objection raised by the accused, the
ld. Magistrate was pleased to allow the application Exh. 73 vide order dt.
26.04.2010.
4. After recording the evidence of the complainant, the ld.
Magistrate was pleased to hear both the sides on the point of framing of
charge. The ld. Counsels representing the accused made submission that, on
the basis of examination-in-chief of complainant, the charge be framed. The
learned Magistrate has passed order dt. 05.07.2010 to frame charge against
accused. Accordingly, the charge was framed against accused Nos. 1 to 9.
Thereafter, the present application has been filed u/s 482 of the Cr.P.C.
challenging the order dt. 26.04.2010 passed below Exh. 73 by CJM, allowing
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the the application to lead secondary evidence in the matter. While
challenging the said order, the applicants have also prayed for quashing of
proceedings.
5. The applicant has approached with a case that, no charge could
have been framed against the applicant as the examination-in-chief recorded
in the matter as well as complaint nowhere discloses that the applicant was in-
charge and/or responsible for the conduct of the business of the company
i.e. the accused No. 9, at the time of commission of offence. In this context
the learned counsel for the applicant has referred Section 34 of the Drugs and
Cosmetics Act, 1940 and argued that only those persons who were in-charge
and responsible for the conduct of the business of the company at the time of
commission of offence are liable for prosecution. It is contended that, the
complaint filed by the respondent nowhere discloses that the applicant was in-
charge and responsible for the conduct of business of the company on the date
on which the offences alleged to have taken place. It is further submitted that,
even the evidence before charge adduced before court discloses that the
applicant was responsible for the conduct of business of the company on the
alleged date of commission of offence. It is therefore contended that the
continuation of the proceedings against the applicant/accused No. 1 would be
gross abuse of process of law and the complaint deserves to be quashed. In
support of this submission, the learned counsel has relied on the decisions of
the Apex Court in the case of (i) State of Haryana Versus Brij Lal Mittal and
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Others reported in (1009) 5 SCC 343, (ii) S.M.S. Pharmaceuticals Ltd.
Versus Neeta Bhalla And Another reported in (2005) 8 SCC 89 (iii)
Dhariwal Tobacco Products Limited And Others Versus State of
Maharashtra And Another reported in (2009) 2 SCC 370 and Division Bench
judgment of this Court in the case of Shri. Ramprakash Gulati & Anr. Vs.
State at the instance of S. B. Ghotkar reported in 2010 ALL MR (Cri) 493.
6. Ms Tiwari, learned Addl. Public Prosecutor appearing for
respondent-State submitted that, the complaint filed specifically discloses the
role of applicant/accused No. 1 in commissions of offence. It is mentioned in
the complaint that, the applicant/accused No. 1 was in-charge and responsible
for the conduct of the business of the company. In this context, the learned
APP has invited attention to the averments made in the complaint and
submitted that, in para 2 of the complaint, it is specifically mentioned that
accused Nos. 1 to 7 are the Directors of the accused No. 9 - Company. In
para 14 of the complaint, it is specifically mentioned that, during the course of
inquiry the complainant along with Shri. Dongre, the Drug Inspector visited
the Company i.e. accused No. 9 and carried necessary inquiry and
investigation regarding the manufacturing of drugs and more particularly
"Duneuron Injection 30 ml.", Batch No. 9303 with Mr. Kailas Jindal i.e.
applicant/accused No. 1 and Mr. Arun Ojha, accused No. 8. At the time of
inquiry, the accused No. 1 and 8 disclosed that the drug in question was
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manufactured for sale on or about 08.04.1993 and distributed for sale on or
about 19.04.1993 and they have also produced record to that effect. It is
further pointed out that in para 17 of the complaint, it is mentioned that,
accused Nos. 1 to 9 had distributed and sold said drug on 17.05.1993, which
was found to be not of standard quality and thereby they have committed an
offence as alleged in the complaint. She has submitted that the allegations
made in the complaint are more than sufficient to attribute the role of
applicant/accused No. 1as in-charge and responsible for the conduct of the
business of accused No. 9/Company, at the time of commission of offence.
7. In the affidavit filed on behalf of respondent on 06.04.2011, the
respondent has put forth their case in detail on this count. It is pointed out
that, the documents filed along with the complaint forms part of the
complaint. In the licence for manufacture issued by the Drugs Controller,
Bhopal (MP) in the name of M/s. Dujohn Laboratories Ltd., Indore, in column
No. II, the name of the applicant i.e. Kailash Mannalal Jindal & one more
person is mentioned as persons responsible for manufacturing, bearing
manufacture chemist code No. MC 373. It is further stated that, at the time of
taking sample and referring it to analyst, the license for manufacturing was
duly enforced in the name of present applicant. During the course of inquiry
and investigation, the statement of Mr. Ojha, Dy. Manger was recorded. He
has stated in his statement that, accused No. 1 is a Managing Director of the
Company and is looking after day-to-day activity of the accused No.
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9/Company. Thus, it is the case of respondent that, besides the facts pleaded
in the complaint, there is evidence on record which clearly makes out a case
to satisfy the requirement of Section 34 of the Drugs and Cosmetics Act. Ms.
Tiwari placed reliance on the decision of the Hon'ble Apex Court in the case
of Dinesh B. Patel And Others Versus State of Gujarat And Another
reported in (2010) 11 SCC 125.
8. In order to appreciate the submissions advanced, I have
thoroughly perused the copy of the complaint. In my view, the averments
made in the complaint satisfy the requirement of Section 34 of Drugs and
Cosmetics Act, 1940 to prosecute the applicant/accused. It is nowhere the
case of the applicant that, the applicant was not connected with the business
of the accused No. 9 - Company and he was not responsible for the conduct
of day-to-day business of accused No. 9 - Company. So also it is not the case
of applicant that he was not working as Director of the Company at the time
of commission of offence and he had resigned or given up the post of Director
before the alleged date of commission of offence.
9. In para 2 of the complaint, it is specifically averred that accused
Nos. 1 to 7 are the Directors of accused No. 9 - Company, which carry
business from Indore. It is mentioned in the complaint that, the accused were
holding manufacturing license in Form 28, bearing No. 28689 dt. 22.2.89
valid upto 31.12.93. By virtue of the said license, the accused were permitted
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to manufacture for sale the drug Duneuron Injection 30 ml. along with other
products. The licence was issued by the Drug Controller, Food and Drug
Administration, Bhopal (M.P.). In para 14 of the complaint, it is specifically
mentioned that, after receiving the information that the drug which was seized
and found to be not conforming the standard was purchased from respondent
No. 9, the complainant along with Drug Inspector - Mr Dongre visited the
accused No. 9 - Company for the purpose of further investigation and inquiry.
It is categorically stated that, inquiry was made with Kailash Jindal,
applicant/accused No. 1 and Mr Ojha i.e. accused No. 8 and both of them
disclosed and also produced the record to show that the drug in question was
manufactured for sale on or about 08.04.1993 and distributed for sale on or
about 19.04.1993. In para 17, the complainant has further averred that the on
or about 17.05.1993, the accused Nos. 1 to 9 had distributed and sold the drug
in question which was found to be not of standard quality and thereby they
have committed an offence punishable under Section 18(a)(i) r/w Section
16(a) and rendered themselves liable for punishment as per provisions of
Section 27(d) of the said Act. The relevant paras 2, 14 and 17 of the
complaint reads thus:
"2. That the Accused No.1 to 7 are the Directors of M/s
Dujohn Laboratories Ltd., Indore situated at A-3, Sector -E, Sanwer
Road, Industrial Area, Indore (M.P.) i.e. accused No.9. That the accused
No.8 is the employee of accused No.9 working in capacity of Deputy
General Manager (Works). That accused were holding licence in Form
28 licence No. 28/6/89 dated 22/2/89 valid upto 31.12.93.
14. That the complainant alongwith Shri A. M. Dongre, Drugs,
Inspector, Nagpur visited the premises of M/s. Dujohn labs. Ltd., A-3,
Sector-B, Sanwer Road, Industrial Area Indore i.e. accused No.9 and
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carried out necessary enquiry and investigation regarding the
manufacturing of drug & 'Duneuron Injection 30 ml., Hatch No.9393,
D/Mfg, 4/93, D/Exp.9/94 with Mr. Kailash Jindal i.e. accused No.1 and
Mr. Arunkumar Ojha i.e. accused No.8 That accused No.1 & 8 disclosed
at the time of enquiry and produced records that the drug in question was
manufactured for sale on or about 8.4.93 and distributed for sale on or
about 19.4.93.
17. That the complainant charges that accused No.1 to 9 on or
about 17.5.93 had distributed and sold drug namely 'Duneuron Injection,
30 ml. Batch No.9303 D/mfg: 4/93, D/Exp.9/94" manufactured by them,
which is not of standard quality as per analytical report No. M. 3597/93,
dated 4.2.94 of Govt. Analyst, M.S. Bombay and thereby all the above
accused No.1 to 9 contravened the provision of Section 18 (a) (I) R/w.
Sec. 16(a) and rendered themselves liable for punishment as per
provisions of Section 27 (d) of the said Act."
.
Thus, in the light of the averments made in the complaint
attributing specific role to the applicant/accused No. 1 in the commission of
offence, the contention of the learned counsel for the applicant can not be
accepted. In view of this, the ruling cited by learned counsel have no bearing
upon the facts of the case. According to complainant, they have placed on
record the material in the form of evidence which includes the drug license
wherein the name of the applicant is shown as manufacturing chemist of
accused No. 9 / Company. Besides this, there are statements & other evidence
to show that the applicant/accused No. 1 was in-charge and responsible for the
conduct of the business of the company at the time of commission of offence.
10. It is pertinent to note that, the complaint was filed in the year
1994. After the period of more than 13 years, the present application has been
filed that too after the court proceeded with the trial, recorded the evidence
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before charge & framed the charge. It is pertinent to note that, the
complainant was examined on 05.07.2010. The witness was offered for
cross-examination by the counsel representing the accused No. 1. He
declined to cross-examine the witness and reserved his right to cross-examine
the witness after charge. At the time of framing charge, learned CJM heard
both the sides on the point of framing of charge. The ld. counsel representing
the applicant and other accused were also heard on the point of framing of
charge. All of them have submitted that, the charge be framed according to
the examination in chief. They have neither raised any objection nor argued
the contention as raised before this Court. On the contrary, they have given
no objection to frame the charge on the basis of evidence before charge
adduced in the matter. The order dt. 05.07.2010 reads thus:-
"Order Below Exh.1, Dated 5/07/2010
Heard Both sides and gone through the examination in chief of
PW-1 the complainant and heard the learned APP Shri Singh. He has
submitted that as per examination in chief, all the ingredients of the offence
U/s 18(a)(i) r/w. Sec. 16(a) punishable U/s 27(d) of D. and C, Act are
committed by the accused and therefore charge be framed against them.
Heard the learned counsel for accused Shri Raut and Shri Saxena and
Ku. R. G. Sakhare for the accused. They have submitted that according to
examination in chief charge may be framed. Hence, I found that as per
submission of prosecution, the charge be framed against the accused as
under.
ORDER
Charge be framed against accused No.1 to 9 for the offences under Section 18 (a) (i) r/w Section 16(a) punishable under Section 27 (d) of the Drugs and Cosmetics Act, 1940."
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11. Thus, the order as quoted above clearly spell out that no such objection to frame the charge was raised by applicant & other accused. On the contrary, the counsel representing the applicant has submitted that, charge may be framed in the matter. Therefore, now it is not open for the applicant to raise such issue before this Court in an application filed u/s 482 of the Cr.P.C. In view of this, the application filed by the complainant seeking quashing of the proceedings deserves to be rejected on this count only.
12. It is pertinent to note that, by way of present application, besides the quashing of proceedings, the petitioner has prayed for setting aside the order granting permission to adduce secondary evidence in the matter. It is apparent from the record that, application vide Exh. 73 was filed on 09.11.2009. On 22.04.2010, the defence has recorded its say & opposed the application only on the ground that the application is made after a period of nine years and that too with intention to prolong the proceedings. In the application filed, the prosecution has set out in detail the circumstances under which the complainant is required to file the application for leave to lead secondary evidence. It is specifically mentioned in the application that the record was destroyed during the course of destruction of old record and proceedings of the Court though the proceeding was pending. The permission was sought in the matter to produce the xerox copies of the record available with the complaint as secondary evidence. The application was made in terms ::: Uploaded on - 06/05/2016 ::: Downloaded on - 07/05/2016 00:01:08 ::: sgp 14 APPLN1290.2010.odt of Section 65 of the said Act. On hearing the parties, as the request was found strictly in terms of Section 65 of the Evidence Act, the ld. Magistrate has allowed the application by order dt. 26.04.2010 and permitted the complainant to adduce secondary evidence in the matter. The order passed by ld. Magistrate is perfectly legal and there is no scope for interference in exercise of powers u/s 482 of Cr.P.C. After granting permission to lead secondary evidence, the evidence of complainant was recorded and the order framing charge was passed. Subsequently, in the month of August-2010, the present application is filed, which reflects the ulterior motive on the part of applicant to protract the proceedings before the trial Court.
13. The conduct of the applicant in filing such application to prolong the hearing is apparent from the face of the record. The criminal complaint was filed in the year 1994. Summons were issued to the accused in the year 1994. Accused No. 7, who is the wife of the accused No. 1, initially moved an application to drop the proceedings against all the accused. The application was allowed by order dt. 04.12.1997. The order to quash the proceedings was challenged by filing Criminal Revision Petition No. 4/2002 before the Sessions Court, Bhandara. The applicant/accused was party to the revision petition. The said revision petition was allowed vide judgment and order dt. 01.12.2005. The order of quashing proceeding was set aside and the Criminal Case No. 57/1994 was restored to the file with a further direction to ::: Uploaded on - 06/05/2016 ::: Downloaded on - 07/05/2016 00:01:08 ::: sgp 15 APPLN1290.2010.odt ld. CJM to decide the case as per law. The order dt. 01.12.2005 passed in the matter was not challenged and attained finality. It appears that, after the disposal of the said revision petition, two other accused persons i.e. Lalit Goyal (accused No. 4) and Nandkishor Agrawal (accused No. 6) preferred Criminal Revision Petition No. 226/2009 before this Court with a direction to quash the process issued in criminal case No. 57/1994 and discharge the accused. The revision was heard and rejected by this Court vide judgment and order dt. 01.04.2010 (Coram : A. B. Chaudhari, J.) with a costs of Rs. 5,000/-. While dismissing the criminal revision, this Court has directed the trial Court to dispose of the proceedings within four months from the date of passing of the order. While dismissing the revision petition, this Court has considered the earlier proceedings filed by other accused and orders passed in the matter which includes the order dt. 01.12.2005 passed by Sessions Court, Bhandara. This Court has observed that the order passed by the Sessions Court was not challenged and therefore it has attained finality. It is pertinent to note that, the process issued in the year 1994 has been challenged by filing revision in the year 2009 which itself reflects the conduct on the part of accused in the case to protract the proceedings. In paras 4 and 5 of order dt.01.04.2010, the Court has observed as under:
"4. As a matter of fact in the above fact situation, in the light of the delay and laches on the part of the applicants, even ignoring the fact about absence of prayer to put to challenge the said revisional order dated 1.12.2005, this Court could have straightway dismissed the revision. However, this Court heard learned Counsel for the applicants since he was citing the judgment delivered by this Court ::: Uploaded on - 06/05/2016 ::: Downloaded on - 07/05/2016 00:01:08 ::: sgp 16 APPLN1290.2010.odt date 26.9.2007 in the case of The State of Maharashtra...Versus...Mr. Kailash Munnalal Jindal and ors. in respect of the same Company.
5. Perusal of the said judgment dated 26th September, 2007 shows that this Court refused leave to appeal in a judgment against acquittal, which was recorded by the trial Court after a full dressed trial. I do not think that the said judgment therefore could be of any assistance to the learned Counsel for the applicants. At any rate, observation in the said judgment that none of the accused before the trial Court were located within its territorial jurisdiction and therefore the complaint was not maintainable is contrary to law. Territorial jurisdiction of the Court is not to be decided on the basis of the location of the accused persons. That apart, even on merits, I find that the applicants are entitled to prove their defence that they are not liable to be tried by the trial Court for whatsoever reason and it is not possible to entertain this matter after 16 long years in this Court. These 16 long years were spent only because of the application (Exh.4) for dropping the proceedings that was filed by the applicants and no blame can be given the the State. For all the above reasons, I make the following order.
ORDER
(i) Criminal Revision No.226/2009 is dismissed with costs of Rs.5,000/- (Rupees Five Thousand Only) payable to the State of Maharashtra within a period of four weeks from today.
(ii) The trial Court now shall take up the Criminal Case No.57/1994 and dispose of the same as expeditiously as possible and in any case within a period of four months from today.
(iii) All defences available to the applicants are left open. "
14. Thus, in the light of chequered history of the matter and the conduct of the accused in the case to file proceeding one after another with an ulterior motive to prevent the trial Court to proceed with the matter, on this count alone the application u/s 482 of the Cr.P.C. deserves to be rejected. The facts of the case reveals that there was no abuse of process of law on the part of respondent but really speaking the applicant and co-accused have abused the process of law by filing proceedings one after another to protract the proceedings before the trial Court. By adopting such tactics, they have succeeded in preventing the trial Court to proceed with the matter, which is of ::: Uploaded on - 06/05/2016 ::: Downloaded on - 07/05/2016 00:01:08 ::: sgp 17 APPLN1290.2010.odt the year 1994. As observed in foregoing paras, neither any application for discharge was filed nor any objection was raised while framing of charge by the trial Court. On the contrary the advocate representing the accused has stated before trial court that there is evidence sufficient to frame charge. Still the present application is filed. Such conduct on the part of the litigants like applicant needs to be deprecated. The exercise of powers u/s 482 of the Cr.P.C. is a discretionary, relief which needs to be exercised sparingly and that too to prevent the abuse of process of any Court or otherwise to secure the ends of justice. The facts of the case do not warrant to invoke the inherent jurisdiction u/s 482 of the Cr.P.C. to quash the proceedings. There is a remedy available under the law to challenge the order framing of charge as well as the order granting permission to lead secondary evidence. For this purpose, the powers u/s 482 of Cr.P.C. cannot be resorted.
15. The conduct of the applicant as discussed above itself amounts to misuse of process of law. As observed in the foregoing paras, the avertments made in the complaint together with the evidence placed on record is more than sufficient to satisfy the requirement of Section 34 of the Drugs and Cosmetics Act, 1940. The averments made in complaint as reproduced in foregoing paras cannot be described as bald statements. The averments made in the complaint have to be read together which spelt out that in the complaint there are specific averments to show that the applicant is in-charge and person responsible for the conduct of accused No. 9 Company at the time of ::: Uploaded on - 06/05/2016 ::: Downloaded on - 07/05/2016 00:01:08 ::: sgp 18 APPLN1290.2010.odt commission of offence. The offences for which accused are charged have direct impact on public health. In this context, the learned APP has rightly placed reliance upon the decision in case of Dinesh Patel (cited supra), wherein, in paras 9 and 10, the Apex Court has observed as under:
"9. In our opinion, the averments in paras 4, 5, 6 and 8 of the complaint cannot be described as the bald statements. The emphasized portion in para 6 of the complaint suggests manufacturing of the medicine by the company and its directors. The averments in all these paras would have to be read together and the para 6 of the complaint would have to be read in the light of the other averments. It seems that in the reported decision in the complaint, there was no link pleaded in the directors and the manufacturing process. That is not the situation here. This was the case of the manufacture of the drug for human consumption and, after it was tested in laboratory, was found to be defective since there was a growth of fungus, which is a very serious matter related to public health.
10. Under the peculiar circumstances of this case and realizing the seriousness of the allegations, we would not take a technical view based on pleadings in the complaint. Mr. Raichura contended that as per the settled law by this Court in complaints under Section 138 of the Negotiable Instruments Act against company and directors also specific averment about the active role of directors in running the company has to be made, failing which the directors cannot be proceeded against. The same logic should apply even in the present case. We cannot agree. Firstly, the language of Section 34(2) of the Act substantially differs from the language of Section 141 of the Negotiable Instruments Act. Secondly, here we are dealing with the offence which has the direct impact on public health. We, therefore, would choose not to interfere with the order of the High Court. It will be open for the directors to show to the Trial Court that they had nothing to do with the manufacture process and, therefore, they should not be held liable under Section 34(2) of the Act."
16. In the result, the application deserves to be dismissed.
Accordingly, the application is dismissed with costs of Rs. 10,000/- (Rupees Ten Thousand) to be payable by applicant to State of Maharashtra within a period of four weeks from today. The applicant shall deposit the costs before trial Court. On deposit of costs, same shall be credited to the State account.
::: Uploaded on - 06/05/2016 ::: Downloaded on - 07/05/2016 00:01:08 :::sgp 19 APPLN1290.2010.odt The trial Court is directed to proceed with the trial and decide the case as expeditiously as possible & preferably within six months from the date of communication of order. It will be open for the applicant to establish before trial Court that he was not in-charge & responsible for conduct of business of accused No. 9 - Company.
[ V. L. ACHLIYA, J. ] LATER ON :
After pronouncing the judgment, Mr S. V. Sirpurkar, learned counsel for the applicant makes oral request to stay the order and to continue the interim order operating in the matter.
2. In view of the fact that the criminal case is pending since the year 1994, the request made for stay of the order and continuation of interim order is rejected.
[ V. L. ACHLIYA, J. ] ::: Uploaded on - 06/05/2016 ::: Downloaded on - 07/05/2016 00:01:08 :::