Himachal Pradesh High Court
Maman Chand Jain vs State Of Himachal Pradesh Through ... on 10 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO 401 of 2018
Decided on: 10.07.2024
_______________________________________________________________
Maman Chand Jain ...........Petitioner
Versus
State of Himachal Pradesh through Principal Secretary (Home) & anr.
.........Respondent
_______________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner : Mr. Rajnish Maniktala, Senior Advocate with
r Mr. Naresh Verma, Advocate.
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 Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing of complaint, bearing case No. 755 of 2017, titled as State of Himachal Pradesh versus Maman Chand Jain and others, filed before the Court of Special Judge, Nahan, Sirmour, H.P.
2. A complaint under Sections 18(c), 18(a)(iv) and 18(a)(i) read with Sections 17B and 36C of Drugs & Cosmetics Act, 1940 (for short 'Act') was filed by the respondents against the present petitioner, wherein it came to be alleged that on 12.03.2016, the premises of firm, M/s Vardhman Pharma, were raided by the Drugs Inspector along-with police consequent upon drug alert issued by the CDSCO in the month of January 2016. During inspection, it was found that drug samples of the aforesaid firm were declared as 'Not of ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 2 Standard Quality' by the RTDL. Apart from above, aforesaid firm had also not .
got its drug manufacturing licenses renewed after the year 2009 and thereafter drugs were being manufactured without having valid drug license. The firm was also raided earlier on two occasions, i.e. on 28.09.2013 and 29.09.2013 for similar offenses. At the time of the raid on 12.03.2016, two persons were present at the premises of firm and statement of both the persons were recorded, who disclosed that they were working in the said firm as per directions of accused-petitioner, Maman Chand Jain and his wife, Meenakshi Jain.
3. Since, at the time of raid, huge quantity of drugs, veterinary bolus, primary packing material, labels etc. were recovered from the premises of firm, it was observed that the firm had indulged in the manufacturing of spurious drugs under the name and style of Saibliss Drugs and Pharmaceuticals, 66/67, Gundpur Industrial Area, Paonta-Sahib. H.P., wherein partner of the firm denied manufacture and supply of these drugs. Search and seizure could not be completed on 12.03.2016 due to insufficient light in the rooms and as such, premises of firm were sealed and keys were handed over to Shri Sukhveer Singh and member Gram Panchayat, Kala-Amb, Sirmour. Subsequently, on 13.03.2016, the premises of firm were opened after taking the keys from Shri Sukhbeer and member Gram Panchayat and five samples for drugs were taken from the premises of firm for the purpose of test and analysis on Form-17 as per Drugs and Cosmetics Act 1940 and Rules, 1945. Thereafter, all the recovery of afore drugs were put in corrugated boxes and plastic bags and seized on Forrm 16 in presence of witness and sealed with the seal ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 3 impressions of complainant-respondent. Premises of firm, M/s Vardhman .
Pharma, were also sealed in the presence of Executive Magistrate and then the seal was handed over to the Drugs Inspector, Nahan and keys were handed over to the Executive Magistrate. SHO, P.S. Kala Amb, Sirmour was initmated by the Assistant Drugs Controller, Nahan, Sirmour regarding the manufacturing of spurious drugs, which is a cognizable offence and non-
bailable as per Section 36AC of the Act, whereby SHO was requested to take appropriate action and deploy a guard at the sealed premises.
4. On 14.03.2016, Drugs Inspector, Headquarters Nahan, moved an application in the Court of Chief Judicial Magistrate, Nahan, Sirmour for grant of custody order of the seized drugs under Sections 25(5)(c) and 23(6) of the Act and such orders were granted on the same date. Thereafter, on 12.03.2016, all five samples were sent to the Government Analyst, Kandaghat, on Form 18 numbered from SIR/Top Priority/RAI/32868/HP-KAN-111 to SIR/Top Priority/RAI/32872/HP-KAN-115 dated 16.03.2016 for the purpose of chemical analysis and vide report no. CTL-Drugs/2016/2245, CTL-
Drugs/2016/2239, CTL-Drugs/2016/2242 dated 25.04.2016, CTL-
Drugs/2016/2770, CTL-Drugs/2016/2771-2773 dated 06.05.2016, the Government Analyst declared all the five samples as 'Not of Standard Quality'.
5. Vide letter no. HFW/NHN/Drugs/2017-23 dated 22.05.2017, Drugs Inspector, Headquarters Nahan sent the complete case along with all the documents and investigation report to State Drugs Controller-cum-Controlling Authority, Baddi, District Solan, H.P., seeking permission to institute the prosecution and in response, Drugs Inspector was accorded sanction to ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 4 prosecute against Meenakshi Jain, wife of petitioner-Maman Chand Jain vide .
letter no HFW-H(Drugs) 148/04-1459 dated 12.06.2017. Further, premises of firm were released by the Sessions Judge, Nahan, Sirmour with the term that "without the permission of this Court and without the authorization of State Drugs Controller, no manufacturing activity shall be carried on in the building/ machinery/ material released to the Applicant during the pendency of case."
However, allegedly, the firm again indulged in the manufacturing of substandard drugs, without the requisite license.
6. Learned Special Judge, Nahan, District Sirmour, H.P., having taken cognizance of aforesaid complaint, issued process of regular trial against the petitioner Shri Maman Chand Jain, as is evident from zimini orders placed on record as Annexure P-11. Being aggrieved and dissatisfied with the issuance of process, petitioner has approached this Court in the instant proceedings, praying therein to quash and set-aside the complaint as well as consequent proceedings issued against him.
7. Challenge to orders of Learned Special Judge has been laid primarily on the grounds that: (i) since report of laboratory, which had tested the samples, was not supplied to the petitioner, he was unable to file objections against the same, as a result of which, report given by Chemical Analyst was read against him; and (ii) since he was unable to dispute the report by requesting the re-testing of the samples by Central Drugs Labs in terms of Section 25 of the Act coupled with the fact that samples drawn at the time of raid have now expired, no chemical test can be conducted on the request, if any, made by the petitioner.
::: Downloaded on - 17/07/2024 20:29:30 :::CIS 58. Having heard learned counsel representing the parties and .
perused the material available on record, this Court finds that facts, as noticed hereinabove, are not in dispute, rather stand admitted in the reply filed by the respondents. The complaint, which is sought to be quashed in the instant proceedings, reveals that on 12.03.2016, Drugs Inspector, Kala Amb, District Sirmour, H.P., raided the premises of M/s Vardhman Pharma along-with police and found that in factory premises, drugs were being manufactured without there being any valid license issued in the name of proprietor of the firm concerned. Raiding team found that drug manufacturing license stood expired in the year 2009 and firm had not applied for renewal of the license even after almost seven years of the expiry of valid license and as such, firm was found to have contravened the provisions of Section 18(c) of the Act. A huge stock of the raw materials, packing materials bearing the name and address of the firm M/s Vardhman Pharma were found lying inside the premises. Though, Shri Maman Chand Jain, was not present in the factory premises during the raid, but he was requested to join the search and seizure procedure, however, he could not come present on account of some personal difficulty. Drugs Inspector then randomly took five drug samples of the finished product in Form-17 dated 13.03.2016, and the samples were then numbered from NHN/15/91 to NHN/15/95. All the five samples were delivered by registered post to Government Analyst, Kandaghat on five separate Forms numbered from SIR/Top Priority/RAI/32868/HP-KAN-111 to SIR/Top Priority/RAI/32872/HP-
KAN-115 dated 16.03.2016, in a sealed parcel. In the aforesaid background, Drug Inspector after having found that the petitioner contravened provisions ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 6 contained in Sections 18(c), 18(a)(iv) and 18(a)(i) read with Sections 17B and .
36C of the Act, punishable under Sections 27(b)(ii), 27(d) and 27(c)of the Act, and Section 18(b) punishable under section 27(d) of the Act, filed complaint in the Court of learned Special Magistrate, Nahan, District Sirmour, H.P. Learned trial Court after taking cognizance of averments/ allegations contained in the complaint issued NBWs against the petitioner.
9. Coordinate Bench of this Court vide order dated 23.04.2019, stayed further proceedings pending before the learned trial Court, with liberty to petitioner to file appropriate application before the Court below for cancellation of NBWs.
10. Mr. Rajnish Maniktala, learned Senior Counsel representing the petitioner duly assisted by Mr. Naresh Verma, Advocate, vehemently argued that complaint sought to be quashed in the instant proceedings is not legally sustainable because allegations contained in the same are totally contrary to the factual position available on record. Learned counsel representing the petitioner, while making this Court peruse various documents adduced on record, vehemently argued that since at the time of inspection, petitioner was not carrying out the business of manufacturing drugs, which is evident from the electricity bills of the firm, there was otherwise no occasion for the Drugs Inspector to submit complaint that factory owned and possessed by the petitioner was being run without there being any valid license. Learned counsel representing the petitioner while inviting attention of this Court to peruse Section 25 of the Act contended that since copy of report submitted by chemical analyst never came to be furnished to the petitioner, he was unable to ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 7 file objections against the same, which right was otherwise available to him.
.
Section 25(4), enables the party, which if not satisfied with the report of the chemical analyst, to make a request to send the sample to Central Government Lab. He further submitted that by the time complaint was filed by the complainant, all the drugs seized at the time of raid had rendered expired and as such, could not be sent to Central Government Lab for re-testing on the request, if any, pursuant to the request made by the petitioner under Section 25(4) of the Act.
11. Mr. Rajan Kahol, learned Additional Advocate General while refuting aforesaid submissions made on behalf of the learned counsel representing the petitioner argued that there was no requirement, if any, for Drugs Inspector to supply the copy of report submitted by Chemical Analyst, rather same was to be collected by the petitioner, who was aware of the factum with regard to sending of the samples to the lab. While fairly acknowledging that at the time of filing of the complaint, all the drugs seized from the premises of the factory owned by the petitioner had expired, learned Additional Advocate General submitted that otherwise also there is/was no occasion and requirement, if any, to get drugs, as detailed hereinabove, retested in view of specific report submitted by Government Analyst.
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 to quash the complaint as well as ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 8 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 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 ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 9 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 defense 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 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 ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 10 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, 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.::: Downloaded on - 17/07/2024 20:29:30 :::CIS 11
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, 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 therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
16. It is quite apparent from the bare perusal of aforesaid judgments passed by the Hon'ble Apex Court from time to time that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him/her due to private and personal grudge, High Court while exercising power under Section 482 Cr.PC can proceed to quash the proceedings.
17. 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 ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 12 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 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.
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 ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 13 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 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 ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 14 power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts .
exist."
18. 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 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 ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 15 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."
19. Aforesaid exposition of law laid down by Hon'ble Apex Court from time to time, clearly reveal that High Court while exercising power under Section 482 Cr.P.C can proceed to quash and set-aside the complaint as well as summoning order, if it is satisfied that evidentiary material adduced on record would not reasonably connect the accused with the crime and if trial in such situation is allowed to continue, person arrayed as an accused would be unnecessarily put to arduous of the protracted trial on the basis of flippant and vague evidence.
20. Before ascertaining the correctness and genuineness of the rival submissions made on behalf of learned counsel for the parties vis-à-vis prayer made in the instant petition, it would be apt to take note of Section 18 of the Act, which reads as under:-
"18. Prohibition of manufacture and sale of certain drugs and cosmetics.-- From such (date) as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf--
(a) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute--
[(i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious;
(ii) any cosmetic which is not of a standard quality or is misbranded, adulterated or spurious;]
(iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof 3 [the true formula or list of active ingredients contained in it together with the quantities thereof];
::: Downloaded on - 17/07/2024 20:29:30 :::CIS 16(iv) any drug which by means of any statement design or device accompanying it or by any other means, purports or claims 7 .
[to prevent, cure or mitigate] any such disease or ailment, or to have any such other effect as may be prescribed;
(v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended;
vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder;
(b) [sell or stock or exhibit or offer for sale,] or distribute any drug 9 [or cosmetic] which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder;
(c) [manufacture for sale or for distribution, or sell, or stock or r exhibit or offer for sale,] or distribute any drug 9 [or cosmetic], except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter:
Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis:
Provided further that the [Central Government] may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the [manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale] or distribution of any drug or class of drugs not being of standard quality."
21. Careful perusal of aforesaid provisions of law reveals that no person can manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale or distribute, any drug, which is not of standard quality on account of it being misbranded and spurious. Section 18(c) specifically talks about the issuance of license for manufacture of drugs. In exercise of the powers conferred under the Act, Drugs & Cosmetics Rules, 1945 have been framed, wherein Rule 69 provides that an application for grant of a license to manufacture and sale of drugs other than those specified in Schedule C & C(I) ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 17 is to be made to the Licensing Authority appointed by the State Government.
.
Such application is submitted on the prescribed format as provided under the rules. Rules 69 is reproduced hereinbelow:-
"69. Application for licence to manufacture drugs other than those specified in Schedules C and C(1) to the Drugs and Cosmetics Rules:(1)Application for grant or renewal of licence to manufacture for sale 3[or for distribution] of drugs, other than those specified in Schedules C and C(1) shall be made to the licensing authority appointed by the State Government for the purpose of this Part (hereinafter in this Part referred to as the licensing authority) and shall be made--
in the case of repacking of drugs excluding those specified in Schedule X for sale or distribution in Form 24B;
(b) in the case of manufacture of drugs included in Schedule X in Form 24F;
(c) in any other case, in Form 24.
(2) 5[(a) Every application in Form 24B shall be made up to ten items for each category of drugs categorised in Schedule M and shall be accompanied by a licence fee of rupees five hundred plus and an inspection fee of rupees two hundred for every inspection or for the purpose of renewal of the licence.
(b) Every application in Form 24F shall be made up to ten items for each category of drugs categorised in Schedule M and shall be accompanied by a licence fee of rupees six thousand and an inspection fee of rupees one thousand and five hundred for every subsequent inspection or for the purpose of renewal of licence.
(c) Every application in Form 24 shall be made upto ten items for each category of drugs categorised in Schedule M and Schedule MIII and shall be accompanied by a licence fee of rupees six thousand and an inspection fee of rupees one thousand and five hundred for every inspection or for the purpose of renewal of the licence.] ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 18 (3) If a person applies for the renewal of a licence after the expiry thereof but within six months of such expiry the fee payable for the .
renewal of such licence shall be:-
[(i) in the case of Form 24B a licence fee of rupees five hundred plus an additional fee at the rate of rupees two hundred and fifty per month or part thereof in addition to an inspection fee of rupees two hundred;
(ii) in the case of Form 24F a licence fee of rupees six thousand plus an additional fee at the rate of rupees one thousand per month or part thereof in addition to an inspection fee of rupees one thousand;
(iii) in the case of Form 24 a licence fee of rupees six thousand plus an additional fee at the rate of rupees one thousand per month or part thereof in addition to an inspection fee of rupees one thousand and five hundred.] (4) A fee of 5[rupees one hundred shall be paid] for a duplicate copy of the licence issued under clause (a), clause (b) or clause (c) of sub-
rule (1) if the original is defaced, damaged or lost. 2[(5) Applications for manufacture of more than ten items of each category of drugs as categorized under Schedule M and M-III or for manufacture of additional items of drugs by licensees in Form 24 or Form 24F shall be accompanied by an additional fee at the rate of rupees three hundred for each additional item of drug. Applications in Form 24B for licence to manufacture for sale and distribution for repacking for more than 10 items of each category or for manufacture of additional item of drug shall be accompanied by additional fee of rupees one hundred for each additional item of drugs as cetegorized in Schedule M and M-III.
3[(6) Where an application under this rule is for the manufacture of drug formulations falling under the purview of new drug as defined in rule 122E, such application shall also be accompanied with approval, in writing, in favour of the applicant, from the licensing authority as defined in clause (b) of rule 21.
::: Downloaded on - 17/07/2024 20:29:30 :::CIS 1922. Rule 70 of the Act provides that the licence for manufacture of .
drugs shall be granted in Form 25 prescribed under the rules. Rules 70 of the Act is reproduced as under:-
"70. Form of licence to repack or manufacture drugs other than those specified in Schedules C and C(1) (1) .--Licences for repacking of drugs against application in Form 24B shall be granted in Form 25B, licences for manufacture of drugs included in Schedule X against application in Form 24F shall be granted in Form 25F and licences for manufacture of drugs against application in Form 24 shall be granted in Form 25."
23. Similarly, Rule 72 provides for duration of the licenc , which reads as under:-
"72. Duration of licence.--An original licence or a renewed licence in Form 25 2[Form 25B or Form 25F] unless sooner suspended or cancelled shall be 3[valid for a period of five years on and from the date on which] it is granted or renewed:
Provided that if the application for the renewal of a licence is made before its expiry, or if the application is made within six months of its expiry, after payment of additional fee, the licence shall continue to be in force until orders are passed on the application and the licence shall be deemed to have expired if the application for its renewal is not made within six months of its expiry.
24. Proviso to aforesaid provisions clearly provides that if an application for renewal of licence is made before its expiry, or if the application is made within six months of its expiry, after payment of additional fees, the licence shall continue to be in force until orders are passed on the application and the licence shall be deemed to have expired if the application for its renewal is not made within six months of its expiry. Rule 73 provides that the ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 20 certificate of renewal shall be issued in a particular form i.e. Form 25 or Form .
25-F shall be issued in Form 26 for form 26-E respectively. For the purposes of licence to manufacture for sale and distribution of drugs specified in Schedule C & C(i), application form is to be submitted in accordance with Rule 75, which is para-materia to the Rules 69 to 72,which provides for application for licence to manufacture drugs other than those specified in Schedule C & C(1) to the Drugs and Cosmetics Rules.
25. Admittedly in the case at hand, reports signed by Government Analyst qua the samples drawn from the premises of the petitioner were not made available to him, enabling him to raise objections, if any, with regard to the same. It has been vehemently argued by the respondents that it was not the duty of the respondents to provide such report, rather same was to be collected by the person, from whose premises samples were drawn, meaning thereby, no such report was made available to the petitioner by respondent-
Department. If Section 25, as taken note hereinabove, is read in its entirety, nowhere suggests that report submitted by Government Analyst is to be procured by the persons, from whose premises samples were drawn, rather same is required to be made available to the person, from whose premises samples were drawn, enabling him/her to notify his/her intention to adduce evidence in contradiction of the report.
26. At the cost of repetition, it is stated that in case opportunity, as provided under Section 25(3), is provided to the person concerned, he/she can always get the sample retested from Central Drugs Laboratory and then such ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 21 report shall be conclusive. In the case at hand, procedure as prescribed under .
Section 25(3) and 25(4) never came to be applied/followed, as a consequence of which, petitioner, from whose premises samples were drawn, was denied opportunity of raising objections, if any, with regard to correctness of the report submitted by the Government analyst, which otherwise in the event of non-filing of objections would be conclusive and shall be read against the person concerned. Had the Department provided copy of report submitted by Government analyst to the petitioner at first instance, he could raise objections with regard to correctness of the same and in that event, matter was to be referred to the Central Drugs Laboratory. Though, learned Additional Advocate General vehemently argued that aforesaid omission, if any, on the part of respondents can be rectified at this stage, but since it is not in dispute that at the time of filing of the complaint, all the drugs seized from the premises of the petitioner had expired, there is otherwise no occasion at this stage to draw samples as per Section 25(3) and send the same to Central Laboratory.
27. Since, the petitioner was deprived of his valuable right under Sections 25(3) and 25 (4) of the Act, initiation of proceedings under section18(c), 18-B, 18(a) (i) r/w Rule 17, 17-B, 36 AC, r/w sub section 3 of section 22, clause (c) of section 27 and Section 28-A of the Drugs and Cosmetics Act, 1940, are not sustainable. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in case titled Medicamen Biotech Limited and another vs. Rubina Bose, Drug Inspector; (2008) 7 Supreme Court Cases 196, wherein it has been held as under:-
"19. In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 22 has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred .
as the appellant had avoided service of summons on it till 9th May 2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed. Likewise, we observe that the requests for retesting of the drug had been made by the appellant in August/September 2001 as would be clear from the facts already given above and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting well within time. We are, therefore, of the opinion that the facts of the case suggest that the appellants have been deprived of a valuable right under Section 25(3) and 25(4) of the Act which must necessitate the quashing of the proceedings against them."
28. Reliance is also placed upon the judgment rendered by Hon'ble Apex Court in Northern Mineral Limited vs. Union of India and another (2010) 7 Supreme Court Cases 726, wherein it has been held as under:-
"22. From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.
23. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before Court where proceeding in respect of the samples is pending. Further the Court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 23 its own motion or at the request of the complainant or the accused.
.
24. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory. Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to Central Insecticides Laboratory.
25. It may be mentioned herein that shelf life of the insecticides had expired even prior to the filing of the complaint. The position therefore which emerges is that by sheer inaction the shelf life of the sample of insecticides had expired and for that reason no step was possible to be taken for its test and analysis by Central Insecticides Laboratory. Valuable right of the appellant having been defeated, we are of the opinion that allowing this criminal prosecution against the appellant to continue shall be futile and abuse of the process of Court.
26. We are distressed to note the casual manner in which the whole exercise has been done. Insecticide Inspector had collected the sample on 10th September, 1993 and sent it to the Insecticide Analyst for analysis and report. Insecticide Analyst submitted its report dated 13th October, 1993. Notice of the report was sent to the appellant on Ist November, 1993, in reply whereof by letter dated 17th November, 1993 it intimated its intention to adduce evidence in controversion of the report. The shelf-life of the pesticide had not expired by that time but expired in February 1994. However, permission to file complaint was given on 23rd February, 1994 and the complaint was actually filed on 16th March, 1994. Had the authority competent to grant consent, given consent and complaint lodged immediately after the receipt of intimation of the accused, sample could have very well sent for analysis and report, before the expiry of shelf-life.
27. It is interesting to note that Section 24(3) and (4) of the Act obliges the Insecticide Analyst and Central Insecticides Laboratory to make the test and analysis and report within thirty days. When 30 days is good enough for report, there does not seem any justification not to lodge complaint within 30 days from the receipt of the intimation from the accused and getting order for sending the sample for test and analysis to the Central Insecticides Laboratory. All who are entrusted with the implementation of the provisions of the Act, would be ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 24 well advised to act with promptitude and adhere to the time- schedule, so that innocent persons are not prosecuted and .
real culprits not left out.
28. In the result, the appeal is allowed, the impugned judgments of the High Court as also that of the Chief Judicial Magistrate refusing to discharge the appellant are set aside and the appellant is discharged of its criminal liability".
29. In case of Medicamen Biotech case(supra), it had been observed with respect to the provisions of Section 25(3) and 25(4) of the Act as follows:-
"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 in his own motion to send the fourth sample which has been disputed for fresh testing to the Director of the Central Drugs Laboratory."
30. In view of the detailed discussion made herein above and law taken into consideration, there is sufficient ground for this Court to exercise its inherent jurisdiction under Section 482 Cr.P.C, for quashing of complaint and consequent criminal proceedings against the petitioner, to prevent abuse of process of law and to prevent unnecessary harassment to the petitioner, against whom there is no evidence to connect him with the commission of offences as incorporated in the complaint. Otherwise also, continuance of the criminal proceedings against the petitioner in the present case would be a sheer wastage of time of the learned trial Court and the same would amount to ::: Downloaded on - 17/07/2024 20:29:30 :::CIS 25 subjecting the petitioner to ordeal of unnecessary and protracted trial, which is .
bound to culminate in acquittal.
31. Consequently, in view of the above, present petition is allowed and complaint bearing case No.755 of 2017, tilted State of Himachal Pradesh versus Maman Chand Jain & others, filed in the Court of learned Special Judge, Nahan, District Sirmour, H.P. (Annexure P-11), is quashed and set-aside Accordingly, present petition is disposed of, so also pending applications, if any.
July 10, 2024 (Sandeep Sharma),
Judge
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