Himachal Pradesh High Court
M/S Arora Pharmaceuticals Pvt. Ltd & Anr vs State Of Himachal Pradesh on 27 August, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No. 122 of 2017 Reserved on 26.07.2018 .
Date of decision:27.08.2018 M/s Arora Pharmaceuticals Pvt. Ltd & Anr. ...Petitioners Versus State of Himachal Pradesh ...Respondent Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.1
Whether approved for reporting? Yes. _______________________________________________________________ For the petitioners: Mr. Anand Sharma and Mr. Karan Sharma, Advocates.
For the respondent: Mr. Ashwani Sharma, Additional Advocate General.
Chander Bhusan Barowalia, Judge.
The present petition is maintained by the petitioners under Section 482 of the Code of Criminal Procedure (hereinafter to be called as "the Code") for quashing of the complaint titled as State of Himachal Pradesh, through Drug Inspector, Una versus Murari Lal Arora filed under Sections 18(a) (I) of the Drugs and Cosmetics Act, 1940, read with Section 27(d) of the Act, being illegal, which is pending adjudication before the Court of learned Judicial Magistrate Ist Class, Court No.II, Hamirpur, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 2
2. Briefly stating the facts, giving rise to the present petition are that on 06.3.2009, the Assistant Drug Controller
-cum-Controlling Authority, Sai Road Baddi, District Solan, .
H.P., informed the office of Assistant Drug Controller and Licensing Authority that sample of formaldehyde solution I.P.B. RL-10, D/M 06/2007, D/E 05/2010, manufactured by the Firm was reported as not of standard quality by Government Analyst G.A. vide report No.HFW-CTL(Drugs) Report/06-1425, dated 07.03.2009. It has been alleged that the sample did not comply in respect of the test for formaldehyde which is 16.2 percent w/w against the I.P. 66, requirement as 34 to 38% w/w and the weight per ml at 20° centigrade is 1.1048 gms., against the I.P. 66 requirement as 1.079 gms., to 1.094 gms.
3. It has been contended that, thereafter, a show cause notice was issued by the petitioners vide office memo dated 21.5.2009, as to why their licence (s) should not be suspended or cancelled under Rule 85 of the Drugs and Cosmetics Rules, 1945 (hereinafter to be referred as the 'Rule'). The petitioner filed reply vide letter dated 04.6.2009, confirming the re-packing of manufactured and sale of subject drug. It has been alleged that Murari Lal Arora, the Managing Director of the Firm, appeared in the Drug Control Department, F17, Karkordooma, Shahdara, Delhi and explained about manufacturing and sale of the above said ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 3 drug and reiterated averments made in the letter dated 04.06.2009.
4. It has been alleged that after taking into .
consideration, reply of the firm, the petitioners in response to show cause notice and explanation given by the firm during the personal hearing were considered, which were found un-satisfactory. It has been mentioned that the firm has since manufactured and sold not of standard quality product, i.e. r formaldehyde solution I.P.B. No.RL-10,D/M 06/2007, D/E 05/2010 and thereby contravened the provisions of Section 18(a) (I) of the Drugs & Cosmetics Act, 1940 (hereinafter to be referred as the 'Act'). Therefore, one Sh. Ravi Kant, Assistant Drugs Controller and Licensing Authority, appointed under Rule 59 (i) of the Drugs & Cosmetics Rules 1945, suspended the Licence(s) No. 553 and 554 on Form 25 and 28 of the firm referred to above, in part in respect of "formaldehyde solution I.P." for a period of one month from 01.03.2010 to 30.03.2010 (both days inclusive), under Rule 85 of Drugs & Cosmetics Rules 1945, for having manufactured and sold not of standard quality drug.
5. Further, it has been alleged that whatever offence was committed by the petitioners, has been decided by the concerned authorities and no appeal whatsoever ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 4 against the order dated 14.01.2010, was filed under Rule 85 of the Drugs & Cosmetics Act, by the petitioner-Firm as firm has accepted the sentence of suspension of licence. Hence, .
orders passed by the learned Authority dated 14.01.2010 (Annexure-PA) had become final, because none of the parties had assailed the same. However, even after the finality of orders, Annexure-PA/1, instead of filing appeal, as provided under Rule 85 of the Drugs and Cosmetics Rule, within a period of three months up till 14.04.2010, the respondents filed the presents compliant with mala fide intention to cause harassment to the petitioners after long time.
6. It has been contended that vide order dated 14.1.2010, the proceedings had been finally concluded as none of the parties either the petitioner or prosecution had challenged, hence, attained finality, but still the petitioners have received a notice, Annexure-PC, through the Station House Officer, Police Station, Hamirpur, H.P., issued by the learned Judicial Magistrate, Ist Class, Court No.II, Hamirpur, H.P., to put in appearance for 3rd of March, 2017.
7. It has been alleged that the petitioner had also sent reply to the memorandum, dated 21.05.2009 on 04.06.2009 and specifically submitted that from the report sent by the Assistant Drug Controller, Hamirpur, H.P., that subject product was not found of standard quality with ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 5 respect to the Assay and weight per ml., by the Government Analyst, who had tested the sample after a period of twenty months of its receipt in their laboratory and also explained .
the number of facts vide letter dated 04.6.2009. It has been mentioned that the said product was labeled in accordance with the conditions stipulated in the Pharmacopoeia I.P. 66. Thereafter, it was sold after clearance from the Laboratory, which has been equipped and manned by the approved Analyst in order to show that the purported product had failed in test(s), because of improper storage in the laboratory, being situated in a cold space where temperature at most of times is below 15 degree centigrade, on which re- packer had no control.
8. It has been contended that as per the averments made in the present petition as well as in the complaint, the proceedings initiated by the respondent by filing of complaint, are absolutely illegal, arbitrary and against the provisions of law. Hence, the notice issued by the learned Judicial Magistrate, Ist Class, Court No.II, Hamirpur, for effecting the service and directing it to appear before the learned Court at Hamirpur is illegal after a period of more than seven years of the decision dated 14.01.2010 and amounts to double jeopardy and against the principles of fundamental rights, as enshrined in the Constitution of India, ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 6 which shows that nobody can be prosecuted/punished two times for the same offence.
9. It has been contended that whole of the .
proceedings right from the taking up of the sample till date are absolutely illegal and have been initiated just to harass the petitioners on one pretext or the other, more particularly, when the authorities have already taken the decision and penalized the petitioners, as per the Rules, whereas it was none of the business of the prosecution (Drug Inspector-complainant) to continue with the complaint filed by the complainant, because the petitioners had never filed any appeal against the orders passed under Rule 85 of the Drugs and Cosmetics Rules and had accepted the verdict of the authorities. It has been contended that before issuing of notice the learned Court below has not applied its mind while directing the petitioner to appear after a period of almost a decade. Further, it has been alleged that the learned Court below has also not taken into consideration and complied by the provisions of the Constitution of India, more particularly, Articles 20(2), which shows that "no person shall be prosecuted and punished for the same offence more than once." Hence, it has been prayed that the complaint filed by the respondent is required to be quashed and set aside.
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10. It has also been contended that before issuance of the notices, the learned Court below did not take into consideration the fact gathered from the report sent by the .
Assistant Drugs Controller, Hamirpur, that the subject product was not found of standard quality in respect of Assay and weight for ml. (milliliter) by government Analyst, who had tested the sample after 20 months of its receipt in their laboratory. Whereas, as per Rule 57 of the Act, on receipt of a package from the Inspector,containing a sample for the test or analysis, the government Analyst shall compare the seals on the packet, with the specimen impressions received separately and shall note the condition of the seal on the packet. It has been alleged that the testing of the sample was done after twenty months of its receipt in their laboratory.
11. Further, it has been alleged that conditions to procedure prescribed as per Rule 57 of the Rules ibid, have also not been complied with in any manner whatsoever, as prescribed under Section 23 of sub-section 4 of the Act, hence, the entire proceedings are vitiated. It has been alleged that as per the storage stipulations, Formaldehyde solution I.P., should not be stored in temperature 15 degree centigrade, while the Government lab is situated in a cold place where temperature at most of the time is below 15 ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 8 degree centigrade, on which the petitioners had no control, shows that there was improper storage in the government Laboratory, which has resulted in the failure of the produce .
of the petitioners.
12. It has been contended that the learned Judicial Magistrate Ist Class did not take into consideration the fact that when there was no material in the complaint for initiating the prosecution, it was well within the power of the learned Court below to dismiss the complaint under Section 203 of the Code of Criminal Procedure even without issuance of process.
13. It has been contended that the learned Court below also did not taken into consideration before issuance of process for summoning the petitioners when there was no material against the petitioners and moreover the controversy had already been decided by the competent authority, which was accepted by the petitioners without assailing the same by either parties and which has also attained finality, hence, the present proceedings amounts to abuse of process of law and the proceedings, which have not basis at all and are liable to be quashed. Further, it has been alleged that the complaint has been initiated after a period of ten years and there would not be any allegation, which could be proved by the prosecution even on the basis of ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 9 facts mentioned in the complaint because it is a fundamental law and nobody can be vexed two times for the same offence. Therefore, it has been prayed that the .
proceedings against the petitioners pending before the learned Court below may be quashed and set aside.
14. The respondent-State filed reply. In the reply, it has been submitted that function of Formaldehyde to be described elaborately by the petitioners, as it is used for manufacture of vaccines and hard gel capsules, also used to kill microorganisms and that Assistant Drug Controller-cum- Controlling Authority, Baddi, H.P., informed Drugs Controller, Delhi on 24.3.2009, instead of 06.03.2009. It has been submitted that notice dated 21.5.2009 was given by the respondent and not by the petitioners and that the petitioners have contravened Section 18(a)(i) of the Drugs and Cosmetics Act, 1940 read with Section 27 (d) of the Act. It has also been submitted that Drug Inspector has taken sample on 07.07.2007 and sent sample to CTL, Kandaghat on 10.07.2007 and CTL, Kandaghat also tested the sample before expiry of the drug and sent its report on 07.03.2009, which was received in the office of Drugs Inspector, Hamirpur on 27.03.2009. It has been alleged that letter to M/s Arora Pharmaceuticals Pvt. Ltd was sent on 16.05.2009, but the accused has not challenged the report dated ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 10 07.03.2009 for re-testing, though there was sufficient time for re-testing, as the expiry date of the drug was May, 2010. It has been submitted that the sample was sent for testing in .
a proper manner and the test was carried out in a proper manner also. It has been submitted that the complaint was filed by the complainant on 06.03.2012 for legal action and that the Drug Inspector visited the spot and prepared spot memo on 29.02.2012.
15. Further, it has been submitted that complaint against the accused has been filed in accordance with Drugs and Cosmetics Act, 1940 for contravention of Section 18(a) (I) of the Act, which is punishable under Section 27(d) of the Act. However, it has been submitted that the letter dated 14.01.2010 was issued by the Assistant Drug Controller to the petitioner, which was received by the respondent from the petitioner on 29/02/2012, which was very late and in this letter only administrative action with reference to licensing part was taken.
16. It has further been submitted that testing of the Drug was done before expiry date and the Government Analyst report has been received on 27.03.2009, which is before expiry date of the drug as expiry date was May, 2010, however, the firm has not challenged the report or asked for re-testing as per the Act.
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17. It has been submitted that the complaint was filed as per the provisions of law and the learned trial Court has rightly issued the process against the petitioners. It has .
been denied that the present complaint filed against the petitioners is a gross abuse of the process of law and there is no likelihood of the success of the case. Petitioners are liable for the contravention of the Act and Rules and the prosecution has been rightly initiated against the petitioners and the complainant will succeeded in proving the case against the petitioners and the petitioners are liable to face the prosecution before the learned Trial Court as the petitioners have contravened the provisions of Section 18(a) (I) punishable under Section 27 (d) of the Drugs and Cosmetic Act, 1940 and Rules, 1945 made thereunder and are liable for punishment as provided under the Rules.
18. I have heard the learned counsel for the parties and perused the record.
19. Learned counsel appearing for the petitioners has argued that the proceedings pending before the learned trial Court may be quashed and set aside.
20. On the other hand, learned Additional Advocate General appearing for the respondent-State has argued that as the petition is without merits, so the petition may be dismissed.
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21. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail.
.
22. At this stage, taking into consideration the fact that the sample was taken in March,2009 and thereafter, show cause notice was issued to him and on the basis of such notice, his licence was suspended. The order passed pursuant to the show cause notice has attained finality and there is no dispute with regard to that. The complainant's case is that thereafter the present complaint is not maintainable as if at all the respondents were aggrieved by that order, that could have maintained the appeal. Admittedly no appeal against order was maintained by the respondents or by the petitioner and that order has attained finality. The second question which has been taken is that the cognizance was taken beyond the period of limitation and the third question is double jeopardy, as the authorities have already taken decision and finalised the decision.
23. This Court after going through the record finds that the sample was tested after 20 months of its receipt in the Laboratory whereas, as per Rule 57 of the Act, on receipt of a package from the Inspector, containing a sample for the test or analysis, the government Analyst shall compare the seals on the packet with the specimen impression received ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 13 separately and shall note the condition of the seal on the packet and as the testing was done after 20 months of the receipt in the Laboratory, the chances of its deterioration .
cannot be ruled out.
24. In these facts and circumstances of the case, when the other conditions are also not specified while conducting the tests by the analysts and there is nothing on record that it was stored above the temperature of 15 degree centigrade.
r The judicial notice of the fact that in winters at the place of testing, the temperature some times goes to zero degree centigrade also is required to be taken. Further, the delay on the part of taking cognizance though tried to be explained by the respondents that by stating delay was not there as the cognizance was taken within ten months from the prosecution sanction, but the delay is there which has created a right in favour of the petitioners. At the same point of time, once the petitioner was already punished by the authorities and that order has attained finality, the present complaint is not maintainable, as Rule 46 of the Drug and Cosmetic Rules, provides as under:
"Rule 46 of the Drug and Cosmetics Rules, 1945, procedure on receipt of sample-on receipt of package from an Inspector containing a sample for test or analysis, the government analyst shall compare the seals on the packet ( or on portion of sampler or ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 14 container) with the specimen impression received separately and shall note the condition of the seals (on the packet or on .
portion of the sample or container). After the test or analysis has been completed, he shall forthwith supply to the inspector a report in triplicate in Form 13 of the result or the test or analysis, together with full protocols of the test or analysis applied."
25. In the present case, the later analysis of the sample when the temperature at the place has sometimes gone to zero degree centigrade, the chances of sample deteriorating cannot be ruled out. There is nothing in the prosecution case that it was stored above 15 degree centigrade in the Laboratory, so, definitely the benefit goes to the accused.
26. In a case titled Krishna Sanghi and others versus The State of Madhya Pradesh, 1977 Cri. L.J. 90 (M.P.), it has been held as under:
7. "........Whenever a complaint or a challan is filed at the instance of any person or any police officer, the Court must first see that Section 468 of the Code of 1973 is attracted or not. If it does, it should not register the case but give an opportunity to the person or the police officer filing the complaint or challan to satisfy it on the point of ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 15 limitation for purposes of condonation of delay. As regards the condonation of delay, it should not be done as a matter .
of course. The delay has to be condoned with exercise of judicial discretion. Section 473 of the Code empowers the Court to condone such delay if sufficient cause has been shown or if the interest of justice make it necessary to do so. But the application of the section would always depend upon the circumstances of each case of which the Court would be required to facts exercise its and judicial discretion in the matter, like an application under Section 5 of the Limitation Act, 1963. At this stage, I would also like to point out that the provisions of Section 473 of the Code should also be liberally construed like Section 5 of the Limitation Act so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to the prosecutor but cannot be construed too liberally because the government is the prosecutor or prosecution is upon the police report. After the delay is condoned by the Court on its being satisfied by the process referred to above, then alone it would register the case and proceed with the same in accordance with law. Before condoning the delay, although I do not ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 16 find any provision of giving of notice to the accused person in Chapter XXXVI of the Code, but natural justice demands .
that the accused person must be heard before passing an order in that regard as such an order is bound to affect a valuable right which accrues to the accused and which cannot be allowed to be taken way lightly. As such, they have to be heard when an application under Section 473 of the Code is moved by the prosecution before cognizance is taken."
27. In a case titled Prakash Chander Sharma versus Kaushal Kishore, Allahabad High Court in Cri. L.J. 1980 Vol-I 578, it has been held:
"8. Section 468, Cr. P.C. bars the taking of cognizance by a court with respect to an offence for which the complaint is filed after the expiry of the period of limitation. The bar of limitation is an absolute bar. It goes to the root of the jurisdiction of the court. It provided amnesty to the accused from prosecution, which he would otherwise be faced, with, if the limitation had not been prescribed. He has a right not to be prosecuted for the alleged offence, when the period for such prosecution has elapsed in accordance with law. Therefore, when a complaint is filed against the accused, which prima facie is ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 17 barred by time, it becomes necessary for the prosecuting agency to simultaneously file an application for condonation of the .
delay under Section 473, Cr.P.C. Unless the delay is condoned, the court cannot take cognizance of the complaint. In the instant case admittedly the complaint was belated by years. The offence was alleged to have been committed on 20th December, 1975, while the complaint was filed on 6 th May, 1977. The officer-in-charge Municipal Board Bulandshahr with its Law Section to assist him must be aware that such a belated complaint could not in law, be filed and its cognizance could not be taken by the court, therefore, as a reasonable and cautious litigant, it was necessary for him to have filed the application for condonation of delay alongwith the complaint supported by an affidavit explaining the delay.
In the absence of such an application, the Magistrate had no other alternative, but to dismiss the complaint as time barred. The Magistrate could not, in law, proceed with the complaint and summon the accused. The question of explaining the delay at a subsequent stage could not therefore, arise for, at the initial stage itself the complaint had to be dismissed by the Magistrate in accordance with Sec.468, Cr.P.C. I am not inclined to agree with the submission made on behalf ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 18 of the respondent's counsel that cognizance could be taken of a prima facie time barred complaint by a Magistrate, who .
could proceed with the case, summon the accused and even record the evidence and thereafter consider the question whether cognizance should at all be taken and the delay condoned. The initial question for determination before proceeding with a time barred complaint is the question of limitation.
to The new provision has been enacted for the purpose of preventing a vexatious and frivolous prosecution of the accused leading to an unnecessary harassment of the citizen. It must be strictly construed, so that the intention of the law is achieved."
28. Applying the above cited law in the facts and circumstances of the present case, it is crystal clear that the complaint is barred by time and so, if allowed to continue, the result will be acquittal in all respects.
29. The learned Additional Advocate General for the respondent has failed to show anything the cognizance was taken within limitation. Though the learned counsel for the petitioners has demonstrated that the cognizance was taken beyond the period of limitation .
30. In a case titled State of Karnataka versus Vedavati, Cri. L.J. 1978 Vol. 84(II)1375, it has been held: ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 19
"5. The offence committed by the accused, if proved, is one falling under S.468 (2) (b) of the Cr.P.C. That being so, .
the charge-sheet should have been filed within one year from 25-12-1974. As regards the condonation of delay, it should not be condoned as a matter of course. The delay has to be condoned with exercise of judicial discretion. S. 473 of the Cr. P.C. empowers the court to condone such delay, if sufficient to cause is shown interest of justice or if the interest of justice makes it necessary to do so.
or in the
But
the application of the section would always depend upon the facts and circumstances of each case of which the court would be required to exercise its judicial discretion in the matter like an application under section 5 of the Limitation Act. In the case on hand, a valuable right which was accrued to the accused could not have been interfered with by the learned Magistrate there being no sufficient cause."
31. In the present case nothing has been established or there is nothing on record that before issuance of notice, delay has been condoned by the learned Court below. Furthermore, there is nothing on record to conclude that the delay is to be condoned.
32. The net result of the above discussion is that the complaint before the learned Court below even if allowed to ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP 20 proceed, will in all probabilities result into acquittal of the accused and as per the averments, which have come on record that cognizance has been taken, after the limitation .
and the petitioner has already been punished by the authorities for the same contravention. The sample was not analyzed within the reasonable time, the same remained below the prescribed temperature for approximately two years in the Laboratory and other conditions with regard to preserving the sample were not complied with by the Analysts. In these circumstances, the present is a fit case where the powers under Section 482 Cr.P.C. are required to be exercised to meet the ends of justice.
33. The net result of the above discussion is that the complaint pending before the learned Court below is required to be quashed and is accordingly quashed. Therefore, the same is quashed and set aside and the further proceedings/orders passed by the learned Court below are quashed and set aside.
34. The petition is accordingly disposed of alongwith pending application(s), if any.
(Chander Bhusan Barowalia) Judge 27th August, 2018 (M.gandhi) ::: Downloaded on - 12/12/2008 05:41:59 :::HCHP