Jharkhand High Court
Cipla Limited vs The State Of Jharkhand ... Opposite ... on 1 August, 2023
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.152 of 2022
With
Cr. M.P. No.154 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No.152 of 2022
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1. Cipla Limited, a company originally registered under Indian Companies Act, 1913 and an existing company under the Companies Act, 2013 having its depot located at 21, Modi Compound, Ratu Raod, P.O. -Hehal, P.S. -Sukhdeo Nagar, Ranchi -834001, Jharkhand and at present Plot No. 538 & 541, Near Devi Mandap, Ratu Road, Kamre, P.S. -Sukhdeo Nagar, Ranchi -835222, Jharkhand through its authorized representative Ravi Shankar Kumar, aged about 34 years, Son of Sri Arjun Prasad, resident of Near Bus Stand, Dhurwa, P.O. -Dhurwa, P.S. - Dhurwa, District -Ranchi -834004, Jharkhand.
2. Cipla Limited, a company originally registered under Indian Companies Act, 1913 and an existing company under the Companies Act, 2013 having its national depot located at Building No. C, Survey No. 11/5, House No. 1074C, All India Logistics Park Road, IPNAD, Bhiwandi, P.O. -Bhiwandi, P.S. -Narpoli, District -Thane -421302, Maharashtra, through its authorized representative Ravi Shankar Kumar, aged about 34 years, Son of Sri Arjun Prasad, resident of Near Bus Stand, Dhurwa, P.O. - Dhurwa, P.S. -Dhurwa, Ranchi -834004, Jharkhand.
... Petitioners
Versus
The State of Jharkhand ... Opposite Party
With
Cr. M.P. No.154 of 2022
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Snehashis Sarkar, aged about 44 years, Son of Sri Nikhil Ranjan Sarkar, resident of 21, Modi Compound, Ratu Road, P.O. -Hehal, P.S. -Sukhdeo Nagar, Ranchi -834001, Jharkhand also at Lake Garden Apartment, Near Divyayan, Morabadi, P.O. -Ranchi University, P.S. -Bariatu, Ranchi -834008, Jharkhand.
1 Cr. M.P. No.152 of 2022 With Cr. M.P. No.154 of 2022 ... Petitioner Versus The State of Jharkhand ... Opposite Party ------ For the Petitioners : Mr. Jitendra Shankar Singh, Advocate Mr. Girish Mohan Singh, Advocate Mr. Mukesh Kr. Banka, Advocate For the State : Mr. P.D. Agrawal, Spl. P.P. ------ PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.
2. Since in both these criminal miscellaneous petitions, the common order of taking cognizance dated 16.05.2020, passed by the learned Additional Judicial Commissioner -II, Ranchi in connection with Drugs & Cosmetics Case No. 01 of 2020 is sought to be quashed, hence both these criminal miscellaneous petitions are disposed of by this Common Judgment.
3. These criminal miscellaneous petitions have been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including the order taking cognizance dated 16.05.2020 passed by learned Additional Judicial Commissioner-II, Ranchi in connection with Drugs & Cosmetics Case No.01 of 2020 in which cognizance of the offence punishable under Sections 27 (b) (ii) and 27 (d) of the Drugs and Cosmetics Act, 1940 was taken, which is now pending in the court of learned Additional Judicial Commissioner-II, Ranchi.
2 Cr. M.P. No.152 of 2022
With Cr. M.P. No.154 of 2022
4. Learned counsel for the petitioners in Cr.M.P. No. 152 of 2022 submits that the allegations against the petitioners are that the petitioners are the seller of Neuro Gardian Tablet, Fit Eye Tablet and Fit Eye Capsules but the petitioners do not have the license for selling of the said drugs. Hence, it is alleged that the petitioner has inter alia committed the offences punishable under Sections 27 (b) (ii) and 27 (d) of the Drugs and Cosmetics Act, 1940 and the learned Additional Judicial Commissioner-II, Ranchi has taken cognizance of the said offences inter alia against the petitioner-company vide its order dated 16.05.2020 in Drugs & Cosmetics Case No.01 of 2020. It is next submitted that the petitioner no.1 of Cr.M.P. No. 152 of 2022 has license under the Drugs and Cosmetics Act, 1940 vide the copy of the license kept at Annexure- 1 & 1/1 (page nos. 31-32) and petitioner no.2 of Cr.M.P. No. 152 of 2022 has license under the Drugs and Cosmetics Act, 1940 at Annexure-2 (page no.40) and Annexure -2/1 (page no.41). It is next submitted that even assuming for the sake of arguments that the petitioners do not have the license for selling the said drugs but as in the strips of the medicines which has allegedly been produced by the petitioners-company, it has been conspicuously labelled with the words "not for medicinal use", hence, assuming for the sake of arguments that the said medicines being sold by the petitioners-company are drugs falling under Clause (b) (i) of Section 3 of the Drugs and Cosmetics Act, 1940, those medicines would fall under the exemption specified in "Schedule K" of the Drugs and Cosmetics Rule, 1945, since the same is not intended for medicinal use, hence, the same is exempted from the provisions of Chapter IV of the Drugs and Cosmetics Act, 1940. It is next submitted that the complainant- Drug Inspector has 3 Cr. M.P. No.152 of 2022 With Cr. M.P. No.154 of 2022 committed an illegality by not seizing the alleged medicines being sold by the petitioners-company physically, hence, has not complied with the statutory requirement as mandated under Section 23 and 25 of the Drugs and Cosmetics Act, 1940. Hence, the complaint suffers from manifest error. In this respect, the learned counsel for the petitioner relies upon the judgment of the Hon'ble Supreme Court of the India in the case of Medicamen Biotech Limited & Another vs. Rubina Bose, Drug Inspector reported in (2008) 7 SC 196 paragraph-13 of which reads as under:-
"13. As would be evident, the matter would turn on an examination of the legal provisions. Section 23 of the Act provides the procedure for taking of samples and sub-section (4) thereof, as already mentioned above, provides that the sample shall be divided into four portions and be kept/disposed of in the manner laid therein including one sample to be produced before the Magistrate. Section 25 is reproduced below:
"25. Reports of Government Analysts.--(1) The Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis under sub-section (4) of Section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.
(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and other particulars have been disclosed under Section 18-A, and shall retain the third copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under Section 18-A has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.
(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-
section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the court may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of the drug or cosmetic produced before the Magistrate under sub-section (4) of Section 23 to be sent for test or analysis to the said laboratory, which shall make the test or analysis and report in writing signed 4 Cr. M.P. No.152 of 2022 With Cr. M.P. No.154 of 2022 by, or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
(5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the court shall direct.
A reading of the aforesaid provisions would reveal that they lay certain obligations as well as provide safeguards for a person from whom a drug has been seized for analysis or testing as Section 25(3) specifies that unless such a person controverts the correctness of the report submitted by the Government Analyst within 28 days in writing that he intends to adduce evidence to controvert the report of the analyst, it would be deemed to be conclusive evidence of the quality of the drug whereas sub-section (4) of Section 25 obliges the Magistrate on the request of the complainant or the accused or on his own motion to send the fourth sample which has been disputed for fresh testing to the Director of the Central Drugs Laboratory."
5. In respect of his submission that since the materials being sold by the petitioners-company are under Schedule K of the Drugs and Cosmetics Rule, 1945, Rule 123 of which exempts the application of Chapter IV of the Drugs and Cosmetics Act, 1940 to such materials, learned counsel for the petitioners relies upon the judgment of the Hon'ble Supreme Court of India in the case of Hasmukhlal D. Vora & Another vs. The State of Tamil Nadu reported in 2022 SCC OnLine SC 1732.
6. Learned counsel for the petitioners also relies upon the judgments of co-
ordinate Benches of this Court passed in Cr.M.P. No.3188 of 2017 dated 20.10.2021, Cr.M.P. No.1382 of 2021 dated 20.07.2022 and Cr.M.P. No.1492 of 2007 dated 09.09.2014. Hence, it is submitted that the entire criminal proceeding including the order taking cognizance dated 16.05.2020 passed by learned Additional Judicial Commissioner-II, Ranchi in connection with Drugs & Cosmetics Case No.01 of 2020 which is now pending in the court of learned Additional Judicial Commissioner-II, Ranchi, as prayed for by the petitioner, be quashed and set aside.
5 Cr. M.P. No.152 of 2022
With Cr. M.P. No.154 of 2022
7. So far the petitioner of Cr.M.P. No. 154 of 2022 is concerned, it is submitted by the learned counsel for the petitioner that the petitioner has been arrayed as an accused as he is the power of attorney holder of the petitioners of Cr.M.P. No. 152 of 2022 and the learned counsel of this petitioner adopts the submissions made by the petitioners of Cr.M.P. No. 152 of 2022.
8. Learned Spl. P.P. appearing for the State on the other hand vehemently opposes the prayer for quashing the entire criminal proceeding including the order taking cognizance dated 16.05.2020 passed by learned Additional Judicial Commissioner-II, Ranchi in connection with Drugs & Cosmetics Case No.01 of 2020 which is now pending in the court of learned Additional Judicial Commissioner-II, Ranchi, as prayed for by the petitioners. Hence, it is submitted that the petitioners have committed the offence punishable under Sections 27 (b) (ii) and 27 (d) of the Drugs and Cosmetics Act, 1940. It is further submitted that nowhere in the instant Criminal Miscellaneous Petitions, the petitioner-company has admitted that the products being sold by them is a drug and in the absence of that it cannot take the plea that the same comes under the Schedule K of the Drugs and Cosmetic Rules, 1945. It is then submitted that though the Drug Inspector issued Form-15 directing stopping of selling of the drugs allegedly being sold by the petitioners- company but the same has been withdrawn in exercise of the powers under Section 23 (5) (a) of the Drugs and Cosmetics Act, 1940 which goes to show the satisfaction of the Drug Inspector himself that there is no illegality in selling of such drugs. It is next submitted that the facts of this case are entirely different from the facts of the cases of Medicamen Biotech Limited 6 Cr. M.P. No.152 of 2022 With Cr. M.P. No.154 of 2022 & Another vs. Rubina Bose, Drug Inspector (supra) and Hasmukhlal D. Vora & Another vs. The State of Tamil Nadu (supra) which are relied upon by the learned counsel for the petitioner. Hence, the ratio of those cases are not applicable to the facts of this case. Therefore, it is submitted that this Cr.M.P, being without any merit, be dismissed.
9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this Court finds that the drugs alleged to have been manufactured by the petitioner-company, the photo copy of the strips which has been kept at page-61, 62 & 63 of the brief, shows that upon the said strips it have conspicuously been mentioned "not for medicinal use." There is no averment in the complaint that the drugs allegedly manufactured by the petitioner-company come under Section 3 (b)
(i) and (ii) to (iv) of the Drugs and Cosmetics Act, 1940. Under such circumstances, this Court has no hesitation in holding that the drugs allegedly manufactured by the petitioner come under Serial No.1 of Schedule K of the Drugs and Cosmetics Rules, 1945. Hence, the same is exempted from the provisions of Chapter IV of the Drugs and Cosmetics Act, 1940; in which the provision for license for manufacturing such drugs and penalty in Section 27 of the Drugs and Cosmetics Act, 1940 is contained. Undisputedly the petitioners are having license of selling drugs copy of which has been kept at annexure -1 & 2 at page nos. 31-39 and 40-41. Without any rhyme or reason, the complainant- Drug Inspector failed to seize the drugs allegedly manufactured by the petitioner. As submitted by the learned counsel for the petitioners; though the Drug Inspector issued Form-15 directing stopping of selling of the drugs allegedly being sold by the petitioners-company but the same has been withdrawn in exercise of the 7 Cr. M.P. No.152 of 2022 With Cr. M.P. No.154 of 2022 powers under Section 23 (5) (a) of the Drugs and Cosmetics Act, 1940 which goes to show the satisfaction of the Drug Inspector himself that there is no illegality in manufacture of such drugs. Under such circumstances, this Court is of the considered view, that as no offence is made out against the petitioners, therefore, the continuance of the criminal proceeding against the petitioner will amount to abuse of process of the law and it is a fit case where the entire criminal proceeding including the order taking cognizance dated 16.05.2020 passed by learned Additional Judicial Commissioner-II, Ranchi in connection with Drugs & Cosmetics Case No.01 of 2020 which is now pending in the court of learned Additional Judicial Commissioner-II, Ranchi, as prayed for by the petitioners, in the interest of justice, be quashed and set aside. Accordingly, the entire criminal proceeding including the order taking cognizance dated 16.05.2020 passed by learned Additional Judicial Commissioner-II, Ranchi in connection with Drugs & Cosmetics Case No.01 of 2020 which is now pending in the court of learned Additional Judicial Commissioner-II, Ranchi, as prayed for by the petitioners of Cr.M.P. Nos. 152 of 2022 and 154 of 2022, is quashed and set aside qua the petitioners, of these cases only.
10. In the result, these criminal miscellaneous petitions stand allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 1st of August, 2023 AFR/ Sonu-Gunjan/-
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