Karnataka High Court
M/S Zee Laboratories vs Union Of India on 21 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.8431/2015
BETWEEN:
1. M/s Zee Laboratories
No.47, Gondpur Industrial Area
Paonta Sahib District
Sirmour
Himachal Pradesh - 133 001
Represented by its Partner
2. Sri Rajiv Mukul
Aged about years
S/o Sri Jagdeep
No.251, Old Housing Board Colony
Karnal
Haryana - 132 001. ...Petitioners
(By Sri Desu Reddy G., Adv.)
AND:
Union of India
Ministry of health and Family welfare
Office of Central Drug Standard Control
Organization
Directorate General of Health Service
Represented by
Drug Inspector
CDSCO (HQ)
2
FDA Bhawan
Kolta Road
New Delhi - 110 002. ...Respondent
(By Smt. Birdy Aiyappa, CGC)
This Criminal Petition is filed under Section 482
Cr.P.C., praying to quash the entire proceedings pending on
the file of the learned Special Court for economic offences,
Bengaluru in C.C. No.5/2014 and vide Annexure-B.
This Petition coming on for hearing this day, the Court
made the following:
ORDER
This petition is filed by accused Nos.1 and 2 under Section 482 of Cr.P.C. praying the Court to quash the entire proceedings pending on the file of he learned Special Court for Economic Offences, Bengaluru in C.C No.5/2014.
2. Brief facts leading to filing of the petition is that respondent-Drug Inspector, CDSCO, on 17.01.2012 had drawn the sample of the drug: ROXZY 150 TABLETS (Roxithromycin tablets I.P 150 mg), Batch 3 No:ZT-3746, D/M-06/11, D/E-05/2014, M/s Zee Laboratories, 47, Gondhpur Ind. Area, Paonta, Sahib, (HP) under Section 23 of Drugs and Cosmetics Act, 1940 from Central Government Health Scheme, Dispensary No.09 Wellness, 64/1, 1st Cross HGH Layout, Ganga Nagar, Bangalore - 32 and forwarded the sample along with Form No.18 to Government Analyst, Central Drugs Laboratory, Kolkata for the purpose of test and Memorandum (Form No.18) No.ADC/BSZ/KTK/7-2/3811 dated 17.01.2012. It is stated that, on 05.11.2012, the respondent had received the test report in Form No.13 dated 29.10.2012 from Government Analyst, Central Drugs Laboratory, Kolkata, which declared the subject drug as not of standard quality for the reason that sample does not conform to I.P with respect to the test for dissolution of Roxithromycin. It is further stated that, on 04.12.2012, the respondent served notice to M/s Zee Laboratories, 47, Gondhpur Ind. Area, Paonta, Sahib, Himachal 4 Pradesh vide letter No.ADC/BSZ/KTK/ KN/NSQD/2011-6821 dated 04.12.2012 not to distribute and sell the subject drug and recall all the supply made from the market and also intimated to collect sealed sample from GSMD, Chennai. It is stated that the respondent has filed complaint under Section 200 of the Code of Criminal Procedure against the petitioners alleging the commission of offence under 18(a)(i) of the Drugs and Cosmetics Act, 1940 and they are under punishable under Section 27(d) of the said Act pending on the file of Special Court for Economic Offences at Bangalore. The learned Magistrate took cognizance of the offence and issued summons to the petitioners.
3. I have heard the learned Counsel appearing for the petitioners-accused No.1 and 2 and the learned Central Government Counsel appearing for the respondent-Union of India.
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4. Learned counsel for the petitioners submitted that there is no compliance of the requirements of Section 34 of the Drugs and Cosmetics Act, 1940 which is equivalent to Section 141 of Negotiable Instruments Act. It is the mandatory requirement of law that the persons accused must be in-charge of the said company/firm and they must be participated in the day today affairs of the company/firm and responsible for the conduct of the business of the said company/firm. Such averment is not forthcoming so far as the petitioners are concerned. The learned counsel draws the attention of this Court to para No.18 of the complaint and submitted that the complainant himself has specifically pleaded that accused Nos.4 and 5 are responsible for manufacturing and analyzing/testing the subject matter of drug and therefore, taking cognizance against the petitioners herein is against the mandatory provisions of law. Hence, he submitted to 6 allow the petition and set aside the impugned order of taking cognizance.
In support of his contentions, the learned counsel has relied upon the following decisions:
1. 2015(1) Drugs Cases (DC) 185 - Himachal Pradesh High Court
2. 2005 Crl.L.J. 2424 (Andhra Pradesh High Court)
3. 2002 Crl.L.J. 1353 (Karnataka High Court)
5. Per contra, learned Central Government Counsel submitted that the entire materials are to be looked into and see the cumulative effective emerging out of it. It is not to be considered in isolation. Drawing the attention of the Court to the contents of the complaint, the learned Central Government Counsel submitted that the contents in the complaint clearly goes to show that even the petitioners-accused Nos.1 and 2 were involved in the manufacturing process and 7 they were liable for the offences alleged. Hence, she submitted that the prosecution must have an opportunity to explain all these aspects by leading evidence during the course of trial. Therefore, the petitioners are not entitled for quashing of the proceedings. Hence, she submitted to dismiss the petition.
6. I have perused the grounds urged in the petition, the contents of the private complaint filed under Section 200 of Cr.P.C. so also I have considered the documents produced by the petitioners in this petition. I have also considered the oral submissions made by the learned counsel for the parties made at the Bar so also I have perused the principles enunciated in the decisions relied upon by the learned counsel for the petitioners.
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7. The controversy as canvassed by both sides is in a narrow compass regarding fulfillment of the mandatory requirements of Section 34 of the Drugs and Cosmetics Act. In this regard, I have perused the contents of the complaint and also the grounds in the petition challenging the order passed by the learned Magistrate. Looking to the contents of the entire complaint, there is no specific mention in respect of petitioner No.2-accused No.2 (Rajiv Mukul) that he is the in-charge of the affairs of the company/firm and participated in the day today affairs of the said company/firm and he is also responsible for the conduct of business of the said organisation. As rightly submitted by the learned counsel for the petitioners that in para No.18 of the complaint itself, there is mention that accused Nos.4 and 5 are responsible for manufacturing and analyzing/testing the subject matter of drug and they are the competent technical persons at the time of manufacturing subject drug. 9
8. I have also perused the decisions relied upon by the learned counsel for the petitioners herein. Looking to the entire materials, I am of the opinion that so far as petitioner Nos.2-Rajiv Mukul is concerned, there is no case made out by the complainant because the mandatory requirements under section 34 of the Act are not complied with. Therefore, the criminal proceedings initiated against petitioner No.2-accused No.2 (Rajiv Mukul is not maintainable. Therefore, the petition is allowed only in respect of petitioner No.2- accused No.2. The criminal proceedings against petitioner No.2-accused No.2 is hereby quashed. The petition to quash the criminal proceedings against petitioner No.1-accused No.1 is hereby rejected.
Sd/-
JUDGE Cs/-
Ct:MHP