Karnataka High Court
M/S Tidal Laboratories Private Ltd vs State At The Instance Of Drugs on 21 August, 2017
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL PETITION NO.11556/2013
BETWEEN:
1. M/S TIDAL LABORATORIES PRIVATE LTD
PATCH-5, PHASE-II, GOWALTHAI DISTRICT
BILASPUR-174201,
HIMACHAL PRADESH
R/BY ITS DIRECTOR
ANANTHARAMAN BALASUBRAMANIAN
2. ANANTHARAMAN BALASUBRAMANIAN
DIRECTOR,
M/S TIDAL LABORATORIES PRIVATE LTD
F3, KRISHNA APARTMENTS,
25TH AVENUE BESANT NAGAR,
CHENNAI-600090
TAMIL NADU
3. KALBHUSHAN SHARMA S/O. RAMESH CHAND
MANUFACTURING CHEMIST
M/S. TIDAL LABORATORIES PRIVATE LIMITED
VPO TAKKA, TEHSIL AND DIST. UNA,
HIMACHAL PRADESH
4. PRAVEEN KUMAR N MANNUR
S/O. NARAYAN MANNU
THE APPROVED TECHNICAL PERSON
FOR ANALYSIS,
M/S. TIDAL LABORATORIES PRIVATE LIMITED
C/O. S N DUVEDI HOUSE NO.170,
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OM GALLI, KILAN AREA, NANGAL,
PUNJAB
...PETITIONERS
(BY SRI DESU REDDY G, ADV.)
AND
STATE AT THE INSTANCE OF
DRUGS INSPECTOR, BAGALKOT CIRCLE
BAGALKOT
REPTD BY SPP, HIGH COURT
DHARWAD BENCH,
DHARWAD
...RESPONDENT
(BY SRI RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION 482 OF CR.P.C. SEEKING
TO QUASH THE ENTIRE PROCEEDINGS PENDING ON THE
FILE OF THE ADDL. CIVIL JUDGE & JMFC COURT,
HUNGUND, IN C.C.NO.112/2012.
THIS PETITION COMING ON FOR FURTHER
HEARING, THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
This petition is filed by the petitioners-accused under Section 482 of Cr.P.C. praying the Court to quash the proceedings initiated against the petitioners, which are now pending on the file of Addl. Civil Judge and JMFC, Hungund, in C.C.No.112/2012 and further to quash the entire proceedings pending on the file of the :3: Addl. Civil Judge and JMFC, Hungund, in C.C.No.112/2012.
2. Brief facts of the case as pleaded by the petitioners in the petition that petitioner No.1 is a Drug Manufacturing Unit run under the name and style of M/s.Tidal Laboratories Pvt. Ltd. engaged in the manufacture and sale of Drugs holding licence in Form No.25 bearing No.MNB/06/467, dated 17.02.2007 and form No.28 bearing No.MNB/06/468 dated 17.02.2007 both valid up to 16.02.2012 issued by the Drugs Controlling cum Licensing Authority, Shimla, Himachal Pradesh. Petitioner No.1 is permitted to manufacture the Drug Rolosol Tablets, Batch No.RLSL-08002, M/D 04/2008, E/D 03/2011 manufactured by M/s.Tidal Laboratories Pvt. Ltd. with effect from 17.02.2007. Petitioner No.2 is the Director of the petitioner No.1 Drug Manufacturing Unit, Petitioner No.3 is the Chemist of petitioner No.1 Drug Manufacturing Unit, :4: who has supervised the manufacture of the not of standard quality drug of Rolosol Tablet and petitioner No.4 is the approved technical person for analysis of the petitioner No.1 Drug Manufacturing Unit. The complainant on 06.11.2008, drawn the sample of Rolosol Tablets, Batch No.RLSL-08002, M/D 04/2008, E/D 03/2011 along with another one legal sample under Form 17, dated 06.11.2008 for the purpose of Test/Analysis. The copy of Form 17 along with sealed portions of legal samples handed over to C.W.2. On 27.11.2008, the complainant has sent one sealed portion of legal sample to Government Analyst Drugs Testing Laboratory Drugs Testing Laboratory, Bengaluru under Form 18. The complainant has received the test report in Form 13 dated 30.01.2009 from Government Analyst declaring the subject Drug not of standard quality with respect to disintegration. The complainant served a notice under Section 18A and Section 18B of the Act along with Original Test Report :5: in Form 13 dated 24.01.2009 to C.W.2 and requested to disclose the source of acquisition of not of standard quality drug. It was disclosed by C.W.2 that the said drug was supplied to them from carrying and forwarding agent of petitioner No.1 firm. The complainant sent the legal sample of the drug to carrying and forwarding agent of petitioner No.1 firm. The complainant on 09.02.2009 visited to M/s J.J.Pharma, situated at Hungund Taluk, Bagalkot along with pancha witnesses and seized the said Drug i.e., Rolosol Tablets, which is not of standard quality under Form 16 dated 09.02.2009 and the complainant obtained permission from the Hon'ble Court for retaining seized Drugs in the safe custody and submitted that report to Drugs Controller for the State of Karnataka, Bengaluru.
On 18.02.2009, the complainant received a letter from C.W.4 for acknowledging the receipt of test report in form 13 dated 24.01.2009 along with one legal :6: portion of sealed sample of impugned drug. Further on 18.02.2009 the complainant proceeded to M/s Phabha Pharmaceuticals along with pancha witness and seized the drug i.e., Rolosol Tablets which is not of standard quality and obtained permission from the Hon'ble Court for retaining seized drugs in safe custody. The complainant submitted the report on 19.02.2009 to Drugs Controller for the State of Karnataka, Bengaluru. The complainant on 24.02.2009 on credible information visited to M/s.Santosh Pharma Mudhol Taluk, Bagalkot District and issued letter for not to dispose the said subject drug by issuing form 15 and on 27.02.2009 the complainant received a letter from petitioner No.1 Firm stating that they have recalled the impugned drug in the market. The complainant, on 06.03.2009, submitted the report to Drugs Controller for the State of Karnataka, Bengaluru and sought permission to visit the petitioner No.1 Firm and case has been handed over to C.W.15 on 20.08.2011. Further, the C.W.15 received :7: letter from C.W.16 to collect the material evidence and documents and the C.W.15 went to Karwar and collected the legal sealed portion of sample of Rolosol Tablets along with other documents and the C.W.15 handed over the file to the complainant for further investigation.
On 02.01.2012 the complainant submitted the final report to the Drugs Controller for the State of Karnataka and sought permission to institute the prosecution against the petitioners herein and on 27.01.2012 the complainant received letter dated 25.01.2012 permitting to institute the prosecution against the petitioners herein. The petitioners further submitted that the Drugs Inspector filed the complaint under Section 200 of Cr.P.C. against the petitioners herein alleging commission of offence contravention of Section 18(a)(i) of Drugs and Cosmetic Act and Rules there under punishable under Section 27(d) of Drugs and Cosmetics Act, 1940, pending on the file of Addl. :8:
Civil Judge and J.M.F.C., Hungund in C.C.No.112/2012. The learned Magistrate took
cognizance of the offence on 24.02.2012 and issued the summons to the petitioners herein. Being aggrieved by the issuance of summons, taking cognizance, petitioner challenging the legality and correctness of the said proceedings, the petitioners are before this Court.
3. Heard the arguments of the learned counsel appearing for the petitioners-accused and also the learned HCGP appearing for the respondent-State.
4. Learned counsel for the petitioners has challenged the proceedings mainly on three grounds, firstly the proceedings initiated are barred by law of limitation as per Section 468 of Cr.P.C. It is contended by the learned counsel for the petitioners that sofar as Form No.13 is concerned, it was not at all served on the petitioners and therefore, their right to challenge the proceedings is prejudiced and effected. It is also his :9: contention that by the time the criminal proceedings are initiated, the life of the drugs was expired in the meanwhile and the right of the accused persons to challenge the proceedings is also affected severely. Hence, he submitted that taking cognizance is illegal, the learned Magistrate has not at all looked into these legal aspects and he wrongly proceeded for taking cognizance in the matter.
In support of his contentions, learned counsel for the petitioners has relied upon the following decisions:
i. Order of the High Court of Judicature, Andhra Pradesh at Hyderabad in Crl.P.2021/2009 in the case of M/s.Invinex Laboratories Limited and another vs. State of Andhra Pradesh;
ii. 2015(2) Drugs Cases (DC) 365 Patna High Court in the case of M/s.Brawn Laboratories Ltd. vs. The State of Bihar and others;
iii. Order passed by this Court in Crl.P.1393/2014 in the case of M/s.Tidal Laboratories Private Limited and another vs. State by Assistant Drugs Controller;
iv. Order passed by this Court in Crl.P.16061/2012 in the case of Rakesh Agarwal vs. State of Karnataka by Drugs Inspector Bijapur Circle;: 10 :
v. Order passed by this Court in Crl.P.7059/2010 in the case of M/s.Alfred Berg & Co. (I) Pvt. Ltd., and others vs. State at the instance of Assistant Drugs Controller;
vi. 2000 Drugs Cases 190 Calcutta High Court in the case of Sri Kamlesh Purkait & another vs. Sri Sambhunath Dey, Drug Inspector & another;
vii. 1999 Drugs Cases 86 Calcutta High Court in the case of M/s.Caplet India (P) Ltd. and another vs. The State of West Bengal and others;
viii. 2013(2) Drugs Cases (DC) 300 Karnataka High Court in the case of Anuragh Arora vs. State of Karnataka;
ix. 2011(1) Drugs Cases (DC) 510 Karnataka High Court in the case of M/s.Alfred Berg & Co. (I) Pvt. Ltd., and others vs. State at the instance of Assistant Drugs Controller; x. 2015(1) Drugs Cases (DC) 2 Andhra Pradesh High Court in the case of M/s.Johnson & Johnson Ltd. and others vs. State of Andhra Pradesh and another;
xi. 2001 Drugs Cases 271 Madhya Pradesh High Court in the case of Safex India (P) Ltd. vs. State of M.P.;
xii. High Court of Judicature for Rajasthan in S.B.Cr.Misc.Petition No.852/2000) in the case of M/s.Ambika Industries & others vs. State of Rajasthan ;
xiii. 2008 Drugs Cases (DC) 163 Supreme Court of India M/s.Medicamen Biotech Ltd. & another vs. Rubina Bose, Drug Inspector;
xiv. 2015(2) Drugs Cases (DC) 376 Madras High Court in the case of M/s.Time : 11 : Pharmaceuticals and others vs. State represented by The Drug Inspector; xv. 2015(2) Drugs Cases (DC) 98 Rajasthan High Court in the case of M/s.Vivid Laboratories Pvt.Ltd. and others vs. State of Rajasthan; xvi. 2015(1) Drugs Cases (DC) 376 Jharkhand High Court at Ranchi in the case of Krishna Mohan Prasad vs. The State of Jharkhand and another;
xvii. 2013(2) Drugs Cases (DC) 206 Gujarat High Court in the case of Galpha Laboratories Ltd. & others vs. State of Gujarat & another; xviii. 2001 Drugs Cases 7 Bombay High Court in the case of Pannalal Sunderlal Choksi and others vs. State of Maharashtra and another; xix. 2015(1) Drugs Cases (DC) 185 Himachal Pradesh High Court in the case of Ashok Kumar Tyagi vs. State of H.P. and others; and xx. 2016(1) Drugs Cases (DC) 499 Madras High Court in the case of M/s.Embiotic Laboratories (P) Ltd. and another vs. The State of Tamil Nadu.
5. Per contra, learned HCGP has submitted that sofar as the limitation aspect is concerned, the learned HCGP has submitted that the proceedings are initiated well within time and there is no question of bar of limitation as per Section 468 of Cr.P.C. and in support of his contention, he has relied upon the decision of the larger bench of the Hon'ble Apex Court : 12 : reported in (2014) 2 SCC 62 in the case of Sarah Mathew vs. Institute of Cardio Vascular Diseases, by its Director Dr.K.M.Cherian, and others and the relevant portion is head note at Synopsis A. "A. Criminal Procedure Code, 1973 -
Ss.468, 469, 479, 473 and Ch.XXXVI (Ss.467 to 473) - Bar of limitation under
- Date relevant for computation of period of limitation under, held, is the date when criminal complaint is filed or date of institution of prosecution/criminal proceedings, and not the date when a court/Magistrate takes cognizance."
It is the further contention of the learned HCGP that sofar as Form No.13 is concerned, referring to the file he submitted that the copy of the Government Analysis report i.e., Form No.13, was served on the official and the petitioners and to that effect there is an endorsement made by the petitioner/accused. Sofar compliance of Section 25(2) & (4) of the Drugs and Cosmetics Act are concerned, it is the contention of the : 13 : learned HCGP that though it is an admitted fact that life of the drug was expired in the meantime, but form No.13 was served on the accused person in the year 2009 and there is an acknowledgment to that effect. Therefore, without waiting further the petitioners/accused could have challenged the same, they were having such opportunity and they need not to have waited till filing of the complaint, without doing so, now they cannot contend that life of the drug was already expired and their important right to challenge the same is vitiated. Therefore, on these grounds, learned HCGP has submitted that there is no merit in the petition and there are serious disputed facts in the petition and hence, he submitted that under the provision of Section 482 of Cr.P.C. those disputed facts cannot be dealt with by this Court and it is only for the JMFC Court during the course of trial to consider all such contentions. Hence, submitted to reject the petition.
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6. I have perused the grounds urged in the bail petition, so also, the documents produced by the learned counsel for the petitioners and the decisions relied upon by the learned counsel for the petitioner as well as the learned HCGP. Sofar as the limitation aspect is concerned, as it is contended by the respondent/complainant that on 27.01.2012 the complainant has received a letter bearing No.DCD/236/Test/2008-09 dated 25.01.2012 permission from the Drugs Controller for the State of Karnataka, Bengaluru, permitting to institute prosecution against all these accused persons. In paragraph No.10 of the objection statement it is contended that after receiving the permission letter on 27.01.2012, the respondent/complainant has filed this complaint against the petitioners/accused on 28.01.2012, which is within the limitation because, finally in this case, the limitation will starts from : 15 : 30.01.2009. From this day and within three years, this complaint has been filed. In this connection I have perused the larger bench decision of the Hon'ble Apex Court relied upon by the learned HCGP, at Synopsis A it is laid down by the Hon'ble Apex Court that regarding the bar of limitation the date relevant for computation of period of limitation held is the date when criminal complaint is filed or date of institution of prosecution/criminal proceedings, and not the date when the Court or Magistrate takes cognizance.
Therefore, in view of the said decision, if the factual aspects are perused, the learned HCGP is justified in making the submission that the proceedings are initiated well within time. Hence, the contention of the learned counsel for the petitioners that the proceedings are barred under Section 468 of Cr.P.C. cannot be accepted.
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7. Regarding the another contention of the learned counsel for the petitioners that Form No.13 was not sent to the petitioners are concerned, in paragraph No.5 of the objection statement, it is contended that on 30.01.2009, respondent/complainant has received the test report in Form No.13 bearing MR No.2539/08/L.K.F/58/08-09, along with covering letter dated 27.01.2009 from the Government Analyst (C.W.3) Karnataka declaring the drug Rolosole Tablets, B.No.RLSL-08002, M/D:04/2008, E/D:03/2011, as "Not of Standard Quality" with respective disintegration test. It is the contention of the respondent/complainant that the From No.13 was served on the accused person and there is an acknowledgment to that effect. In this connection, I have perused the original file, which is secured from the concerned Magistrate Court. Looking to the original file, I have perused the letter dated 31.01.2009 written by the Drugs Inspector, Bagalkot Circle, Bagalkot, addressed to M/s. Tidal Laboratories : 17 : Pvt. Ltd., the subject of which was with regard to Drugs and Cosmetics Act, 1940, Rules thereunder - Testing of Rolosol Tablets B.No: RLSL-08002, M/D: 04/2008, E/D: 03/2011, manufactured by M/s Tidal Laboratories Pvt. Ltd., patch-5, Phase-II, Gowalthai, Dist: Bilaspur- 174201 (HP), India, - declared as "Not of Standard Quality". In the said letter, the Drugs Inspector has stated that the subject drug was drawn from test or analysis under Form-17 dated 06.11.2008 from the premises of M/s J.J.Pharma, Main Raod, Ilkal, and was sent to the Government Analyst, Karnataka, Drugs Testing Laboratory Bangalore, for test or analysis. In the next paragraph, it is mentioned that the Government Analyst, Karnataka, Drugs Testing Laboratory, Bangalore, vide test report in Form-13, bearing MR No:2539/08/LK-4/58/08-09 dated 24.01.2009 cited under reference has declared the subject drug as "not of standard quality". It is further stated in the said letter that when the notice under Section 18A and 18B under : 18 : the provisions of Drugs and Cosmetics Act, 1940, was issued to M/s J.J. Pharma, Main road, Ilkal, District Bagalkot, they have disclosed vide his letter dated 31.01.2009 that the subject drug is supplied to them vide invoice No.2008-09/INX/BNF/00545 dated 23.10.2008 quantity being 200 x 10's tablets. Further, as required under Section 25(2) and 23(4)(iii) of the Drugs and Cosmetics Act, 1940 and Rules thereunder, he was therewith enclosing the test report in Form-13 along with one portion of the Sealed Sample of the subject drug. The Drugs Inspector also requested to acknowledge the receipt of the test report and sealed portion of the sample and to submit the supply and issue particulars of the subject batch of drug and stock on hand to that office at the earliest. So, this letter addressed to petitioner No.1-M/s. Tidal Laboratories Private Limited, has been received and there is an acknowledgement for that. There is also one more letter sent through Registered Post with Acknowledgment : 19 : Due, which is also dated 31.01.2009 and addressed to M/s. Tidal Laboratories Private Limited, in which letter the Drugs Inspector, with reference to the subject mentioned therein, has stated that the subject drug drawn for the test/analysis in Bagalkot District is declared as "Not of Standard Quality" by the Government Analyst, Drugs Testing Laboratory, Bangalore as per Form-13 bearing No:MR NO:
2539/08/LK-4/58/08-09 dated 24-01-2009 and hence, as required under Section 25 of the said Act, he was sending therewith a photocopy of test report Form-13 of the subject drug and requested to acknowledge the receipt of the test report in Form-13. There is also an acknowledgement of petitioner No.1-firm. These two letters make it clear that the respondent No.1- complainant complied with the requirement of Form No.13 and Section 25 and so also Sections 18A and 18B of the said Act. Looking to the test report along with the portion of the sealed sample it was served to the : 20 : petitioner in 2009 itself. So it was in the year 2009 itself. But, admittedly, the life of the drug was going to expire in the year 2011 in this case. Therefore, the petitioners were having two years' time to challenge the proceedings by requesting further testing of the drugs by the experts at Calcutta. But in this case, the same was not done by the petitioners. Therefore, now, the contention of the petitioners that the life of the drug was expired in the year 2009 itself and the valuable right of the accused person is lost or prejudiced cannot be accepted at all. The documents are very clear. It is no doubt true that it is contended by the learned counsel for the petitioners herein that the said letter was addressed to the Bengaluru address and therefore, it is his contention that it is not a proper service. Regarding this aspect, it is not for this Court to ascertain all the factual aspect and decide the same, but it is only for the Trial Court to take a decision on this aspect during the course of trial and with reference to the documents.: 21 :
Therefore, when the test report as well as the portion of the sealed portion both are sent by a registered post and there is an acknowledgment card by the postal authorities for having served by the said authorities to petitioner No.1, in my opinion the contention of the petitioner that Form No.13, the test report and the portion of the sealed portion were not served on the petitioner cannot be accepted. Though it is contended by the learned counsel for the petitioners that he has sent a reply disputing the receipt of the said letter, I have perused the said letter dated 11.02.2009. It is no doubt true that it is contended that it was not served and he has disputed. But, regarding this, as I have already observed above, it is a seriously dispute fact.
Therefore, this Court cannot assume the role of the Trial Court and decide the factual aspect which in dispute. It is only for the Trial Court, that too after recording evidence, to ascertain regarding the said fact. Therefore, in view of my above discussion whatever the decision : 22 : relied upon by the learned counsel for the petitioner are not at all applicable to the facts and circumstances of the case on hand. Therefore, the complaint filed and the proceedings initiated are well within the time, and as per the decision of the Hon'ble Apex Court, there is no merit in the petition. Accordingly, the same is hereby rejected directing the petitioners to approach the Trial Court and to appear during the course of trial.
The observation made by this Court in the body of the order are only for the purpose of disposal of this petition and the learned JMFC Court has to consider the matter independently and to dispose of the same in accordance with law.
As the matter is pending since long, it shall be taken up by the learned JMFC on priority basis and dispose of the same as early as possible.
Sd/-
JUDGE BSR/KMS