Delhi District Court
Nicolas Piramal India Ltd. And Ors. vs . State on 17 April, 2018
Nicolas Piramal India Ltd. And Ors. Vs. State
CR no. 1/16
17/04/2018
Order on Revision
1. Vide this order I would dispose of this revision u/s
397 CrPC filed by the petitioners challenging the impugned
order dated 30/11/2015 passed by the court of Ld. MM01,
North West, Rohini Courts, Delhi in Criminal Complaint no.
12/2004 titled as Drug Inspector Rohit Bajpai Vs. Keval
Bajaj and Others, whereby the Ld. MM had dismissed the
application filed by the petitioners u/s 245 (2) CrPC for
seeking discharge.
2. Notice of this revision petition was issued to the
respondent/State. Sh. Rajat Kalra, Ld Addl. PP appeared
for Respondent no. 1/State along with Sh.Rohit Bajpai, Drug Inspector.
3. Before I come to the contention of both the sides, it would be expedient if I discuss the facts of the case in brief.
4. DI Sh. Rohit Bajpai had filed a complaint u/s 18 (a)
(i)/27 (D) of Drugs and Cosmetics Act, 1940 against seven accused persons alleging that on 11/4/2002 the complainant collected a sample of drug under the name and style of "Tixylix (Children Cough Linctus) batch no. B Nicolas Piramal India Ltd. And Ors. Vs. State CR no. 1/16 Page 1 of 6 2024 bearing date of manufacturing as March, 2002 and date of expiry as February, 2005 manufactured by petitioner no. 1, from the possession of one Kewal Bajaj, who was the proprietor and person incharge of the conduct of business of one M/S Kay Sons situated at WZ218, Nangal Raya, New Delhi. The complainant complied with the process of search and seizure as well as ceiling and filling up of requisite forms as required under the Drugs and Cosmetics Act and on 11/4/2002 one sealed portion of the drug was sent to Government Analyst at Ghaziabad. It is alleged that as per the report of the govt. analyst, there was a negative test for pholcodine and hence the said drug was not of "standard quality". It is stated that the complainant thereafter on 19/6/2003 forwarded a copy of the Ghaziabad test report to accused no. 1 i.e. Kewal Bajaj and in pursuance of inquiry, it was found that accused no. 1 had purchased the said drug from accused no. 2 vide proper invoice and the accused no. 2 had purchased the said drug from accused no. 3 vide proper invoice and in consequence of this chain the complainant discovered that the drug was indeed manufactured by petitioner no. 1 and hence this complaint against seven accused persons.
5. Vide order dated 30/11/2015 the trial court discharged accused no. 1 to 4 on the applications moved on their behalf but the application for seeking discharge u/s 245 (2) CrPC moved on behalf of accused no. 5 to 7 i.e. Nicolas Piramal India Ltd. And Ors. Vs. State CR no. 1/16 Page 2 of 6 petitioners herein was dismissed. Petitioners are aggrieved with the said order and hence the present revision petition.
6. It is stated by Ld. Counsel for the petitioners that the Commissioner, Food and Drug Control Administration, Govt. of Gujarat, Gandhi Nagar, on receipt of the copy of the report of Govt. analyst, Ghaziabad from the Drug Control Department, Govt. of NCT of Delhi, directed that in view of the report of Govt. Analyst, Ghaziabad, the matter is required to be investigated and on 27/6/2003 a senior drug inspector from the office of Commissioner, Food and Drugs Control Administration, Gujarat visited the manufacturing unit of petitioner no. 1 and seized the drug Tixylis bearing quantity 3x1x60 ml and after compliance with the requirements of search, seizure and sampling of the drug having batch no. B2024 and B2019, date of manufacturing as March, 2002 and date of expiry as February, 2005 and forwarded the sample for analysis to govt. analyst at Food and Drugs Laboratory, Vadodara, Gujarat and the said lab gave its test report according to which the said drug was found confirming to the standards of the Drugs and Cosmetics Act and it was found to be of standard quality. It is stated that inspite of the same, the complainant preferred to file this complaint which is abuse of the process of law. It is further argued that the govt. analyst at Ghaziabad was not properly equipped and could not perform the necessary tests as per the standards of Nicolas Piramal India Ltd. And Ors. Vs. State CR no. 1/16 Page 3 of 6 Drugs and Cosmetics Act whereas the test report of Gujarat Govt.Analyst covenanted all the tests and mechanism in order to determine the conclusions in accordance with law and Ld. Trial court has failed to take notice of the same and the same is liable to be set aside.
7. Per contra, Ld. Addl. PP for the State who is assisted by the complainant has vehemently opposed this revision petition. It is argued that as the accused has no right to produce any evidence oral or documentary at the stage of consideration of charge and it has been so held in Debendra Nath Padhi case (2005) 1 SCC 568. It is further argued that the report of the govt. analyst Ghaziabad clearly provides the mechanism /protocol of analysis /test applied as per the requirement of the Act and at this stage this court cannot consider the report of the Gujarat Laboratory.
8. Ld. Counsel for the petitioners has rebutted the contentions of Ld. Addl. PP for the State and it is argued that the judgments Rukmini Narvekar vs. Vijaya Satardekar and others (2008) 14 SCC 1:M.L. Meena Vs. CBI, Crl. M.C. No. 1333/2015 & Crl. M.A. No. 4883/2015 and 4884/2015; Lt.Gen Rt. Nirmal Puri vs.CBI, Crl. M.A. No. 6029/2011 as per which the document of sterling quality produced by the accused can be considered by the court at the stage of charge and Nicolas Piramal India Ltd. And Ors. Vs. State CR no. 1/16 Page 4 of 6 document i.e. test report from Gujarat Laboratory is of sterling quality as same is also a document of Govt. Agency, therefore, it should be considered at this stage.
9. After hearing both the sides, at the outset, it may be said that, this revision petition has no merit and the same is liable to be dismissed.
10. For deciding the controversy in question, this court is not required to decide the issue whether the report of the govt. analyst, Vadodara, Gujarat can be considered or not, at the stage of consideration of charge. In my view, at this stage, even if the said report of govt. analyst at Vadodara Gujarat is considered as per the limited scope of Rukmini Narvarkar (Supra), the same is of no help to the petitioners.
11. The present complaint was lodged by the complainant on the basis of the seizure of drug on 11/4/2002 from the possession of M/S K. Sons at WZ218, Nangal Raya, New Delhi and the report of Govt.analyst, Ghaziabad, to which a portion of the sample drug was sent for analysis. The complainant herein never sent the sample drug for further analysis to any other govt. laboratory including to the Drugs Laboratory, Vadodara, Gujarat. The circumstances in which the Office of Commissioner, Food and Control Administration, Gujarat, lifted the sample on Nicolas Piramal India Ltd. And Ors. Vs. State CR no. 1/16 Page 5 of 6 27/6/2003 from the manufacturing unit of Petitioner no. 1, and sent it for analysis to govt. analyst at Food and Drugs Laboratory Vadodara Gujarat is a matter of trial. It cannot be seen as a case of report of Govt. analyst Ghaziabad vs. Report of Govt. Analyst Vadodara Gujarat to decide the issue in question. The govt. analyst at Food and Drugs Laboratory, Vadodara, Gujarat may be required to be cross examined by the complainant, at the appropriate stage of trial. At this stage, only on the basis of report of Govt.analyst, Vadodara, Gujarat, the prosecution cannot be allowed to be stifled at its initial stage.
12. In view of the above, this revision has no merit and the same is dismissed.
13. Copy of this order be sent to the Ld. MM for information and compliance. TCR be returned back.
14. File of this revision be consigned to Record Room.
Announced in the open court (Deepak Garg)
on dated 17th April, 2018 ASJII, NorthWest,
Rohini
Nicolas Piramal India Ltd. And Ors. Vs. State CR no. 1/16 Page 6 of 6