Allahabad High Court
M/S Nikhil Pharma vs State Of U.P. And Another on 12 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:162478
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 30757 of 2025
M/S Nikhil Pharma
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Ajai Kumar
Counsel for Opposite Party(s)
:
G.A.
Court No. - 75
HON'BLE VIKAS BUDHWAR, J.
1. Counter affidavit has been filed by Sri Moti Lal, learned AGA for the State, which is taken on record.
2. Heard Sri A.P. Mishra, along with Sri Ajai Kumar, learned counsel for applicant as well as Sri Moti Lal, learned AGA for the State.
3. A statement has been made by the learned counsel for applicant that he does not propose to file any rejoinder affidavit and the application be decided on the basis of documents available on record. With the consent of the parties application is being decided at the fresh stage.
4. This application under Section 528 BNSS has been filed by the applicant to quash the impugned complaint filed on 16.03.2009 vide complaint case No 639 of 2009 Cognizance and summoning order dated 22.05.2025 passed by learned Additional District and Sessions Judge/F.T.C.-II, District-Basti in S.T. No. 734/2020 and complaint No. 639/2009 filed on 16.03.2009, under section 18 (i) (a)/27 of Drug and Cosmetics Act, 1940, P.S-Kotwali District- Basti and non-bailable warrant dated 24-07-2025 in the case of State of U.P. Vs. Director Manufacturing firm M/s. Lancer Pharmaceuticals Private Limited and two others pending in the court of learned Additional District and Sessions Judge/F.T.C.-II, District- Basti contained as Annexure No. 1, 2 and 8 of the application.
5. The case of the applicant is that on 16.3.2009 the opposite party No.2, Drug Inspector, Office of Chief Medical Officer, District Basti, U.P. had lodged a Complaint Case No.639 of 2009 (State Vs. Director M/s. Lancer Pharmaceuticals Private Limited) under Sections 17-B, 17-A, 17, 16 and 18/27 of the Drugs & Cosmetics Act and in the said complaint, the applicant herein was arraigned as accused No.3 along with the 1st accused Director/Manufacturer Firm M/s. Lancer Pharmaceuticals Ltd. and 2nd accused, Manufacturer M/s. Lancer Pharmaceuticals Pvt. Ltd. The allegation in the complaint is that on 19.12.2006 which has been wrongly typed as 19.2.2006 an inspection was conducted by the team comprising of the opposite party No.2 in M/s. Manoj Medical Agency wherein sample Methyl Ergometrin Tablet B.No. BT-558, D/M 10/2006, D/E- 09/2008 manufactured by M/s. Lancer Pharmaceuticals, sample whereof was drawn and sent to the Central Drugs Laboratory for its report on 19.12.2006 and consequent to the receipt of the analyst report dated 07.11.2008, the said sample was found not in conformity with the standards. Thereafter on 01.01.2009, a notice came to be issued to M/s. Manoj Medical Agency, Basti and to M/s. Nikhil Pharma alongwith analysis report. M/s. Manoj Medical Agency pursuant to the notice under Section 18A of the Drugs and Cosmetics Act disclosed the name from M/s. Nikhil Pharma i.e. the applicant. Allegation is that though notice was issued to the applicant to disclose the source and to give its reply but no reply whatsoever was given pursuant whereto the complaint stood lodged on 16.03.2009 before the Court of Chief Judicial Magistrate, Basti in which on 16.03.2009 and 20.03.2019, the following orders were passed:
16.03.2009 "?? ?? ?????? ????????? ????? ?? ??????? ??? ??? ??????? ???? ???? ????? ????? ????? ?? ????
????
???? ??????? ??? ?????? ????? ?????? 20.03.09 ?? ??? ???"
20.03.2009 "?? ?? ???????? ???????? ?? ??? ???? ???????? ?? ??? ?? ?????? ???? ???????? ?????? ?? ??? ???? ???? ???? ???
????
?????? ?????? ?????????? ?????? 22.05.09 ?? ??? ???? ?????????? ???? ????? ??? ???
??????? ??. 0001863/2020 ???? ?????? 0000023/2020"
6. Thereafter on 27.05.2020, an order came to be passed which reads as under:
"?? ?? ???????? ?????? ???? ????????? ?? ???? ?????? 17.2.20 ?? ?????? ??? ???? ????????? ????? ????? ?? ???????? ??? ??????? ?? ???? ???"
7. On 22.05.2025, the Court of Additional District Judge/ FTC-II in Sessions Trial Case No. 734 of 2020 proceeded to take cognizance and since the complaint had been lodged before the Chief Judicial Magistrate prior to the cognizance order, thus, the case was directed to be proceeded on the old number.
8. The order dated 22.05.2025 passed by the ADJ/ FTC-II in Sessions Trial No. 734 of 2020 is being quoted hereinunder:
"?????? 22.05.2025 ???????? ??? ???? ???????? ?? ?????? ?? ?????? ?? ?? ???????? ?????? ???? ???????? ?? ?????? ?????? 16.03.2009 ?? ?????????? ?????? ???????? ???? ?????? ????? ?????????????? ???????? ???????, ????????????, ?????? ???? ?????????????? ???????? ??????? ??? ?????? ????? ?????? ???????? ???? ?? ??????? ???????? ???? ??? ??? ???????? ?? ?????? ?? ?????? ?? ?? ?????? 16.03.2009 ?? ???? ?????? ???? ??????? ??? ???? ?? ???? ????? ???? ??? ?? ????? ?????? ??? ?? ??????? ??? ???? ?? ???? ????? ???? ???? ??? ???
???????? ?? ?????? ?? ?????? ?? ?? ???? ???????? ?? ?????? ?????? ???????????? ?????? ?? ????? ??????? ???? ??? ??, ????? ?????????? ????????? ???? ?????????? ??????? ?? ???????? ????? ??? ?? , ????? ?????? ??????? ???? ??? ????? ??????? ???? ??? ??? ?????????? ?? ??????? ?? ????????? ?????? ?? ?? ???? ??? ??????? ??????? ?? ???? 18(i)(a) / 27 ?? ???? ??????? ????? ??? ??? ?????? ??? ????? ??????? ?????????? ?????? ???????? ???? ?????? ????? ?????????????? ???????? ???????, ????????????, ?????? ????? ?????????????? ???????? ??????? ??? ?????? ????? ?????? ?? ??????? ?????????? ??? ???? ?? ???? ???????? ????
????
?????????? ?????? ???????? ???? ?????? ???? ?????????????? ???????? ???????, ????????????, ?????? ????? ?????????????? ???????? ??????? ??? ?????? ????? ?????? ?? ??????? ???? ??? ??????? ??????? ?? ???? 18(i)(a) / 27 ??? ?????????? ???? ???? ??? ?????? ????? ?? ?? ???? ??????? ?? ??? ??? ??? ???? ?? ???????? ???? ?????? ?????????? ?? ??????? ???? ????? ??????? ???? ??????? ?????? ??? ????? ??????? ???? ??? ?????? ??? ???????? ?????? ?????? ??????? ?????? 03-07-2025 ?? ??? ???"
9. Learned counsel for the applicant has submitted that the order dated 22.05.2025 cannot be sustained for more than one reason, firstly, the sessions court could not have proceeded to summon the applicant and to take cognizance without there being any committal by the Judicial Magistrate under Section 193 of the Cr.P.C./213 BNSS, secondly, reliance has been made to the judgment of the Hon'ble Apex Court in Union of India v. Ashok Kumar Sharma and others AIR 2020 SC 5274, there has been violation of the provisions contained under Section 23 of the Drugs and Cosmetics Act, 1940, according to which, a complete procedure has been set out for taking the samples and tendering of the amount and also filling up certain documents/ forms, thirdly, the opportunity to the applicant to dispute the analysis report while sending it for test or analysis from the Central Drugs Laboratory was snatched away in violation of Section 25 of the Drugs and Cosmetics Act, 1940, as the validity of the drug in question, sample whereof was drawn, stood expired in the month of September, 2008 when the anaylsis report came to be issued on 07.11.2008. Fourthly, the summoning order is cryptic, non-speaking and unreasoned and it does not recite the case of the complainant.
10. Learned counsel for the applicant has submitted that besides the aforesaid grounds, there are several grounds on which the challenge is being raised to the summoning order but according to him, the grounds which have been have been noticed above, are fundamental crucial grounds which go to the root of the matter making the entire order dated 20.05.2025 vitiated. He thus submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.
11. Shri Moti Lal, learned AGA on the other hand submits that bare look of the complaint, it is crystal clear that prime facie offences are made out, particularly, when the samples which were drawn had failed in specification pursuant to the report of the analyst and, thus, the same exposes the applicant for penal actions. However, according to him, the legal arguments so sought to be by the learned counsel for the applicant had not been adverted to and noticed which is imperative before summoning the applicant. He submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.
12. I have heard learned counsel for the parties and gone through the records carefully.
13. Apparently, a complaint came to be lodged on 16.03.2009 under Sections 17-B, 17-A, 17, 16 and 18/27 of the Drugs & Cosmetics Act against the applicant and other co-accused as per the complaint, the subject drug date of manufacture was October, 2006, the date of expiry September, 2008 and according to the learned counsel for the applicant, the said drug was sent for analysis before the concerned laboratory on 19.12.2006 but the report has been received on 07.11.2008. Submission is that the right of the applicant to get the retesting done and also to the dispute, the same stood extinguished, particularly, when the subject drugs validity stood expired. Allegation is with regard to the fact that there has been a violation of Section 23 of Act regarding the drawing of the sample and tendering of the fair price and receiving of the acknowledgement therein there is no recital in the complaint. It is also alleged that the complaint was though filed before the Jurisdictional Magistrate, however, without there being any committal which was required under Section 193 Cr.P.C./ 213 BNSS, the court of Additional District Judge/ FTC-II summoned the applicant which is not permissible in view of the judgment of the Hon?ble apex court in the case of Union of India (supra), wherein the following was observed as under:
"It is to be noted that Section 32 declares that no court inferior to the Court of Sessions shall try offence punishable under Chapter IV. We have noticed that under Section 193 of the CrPC, no Court of Sessions can take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the CrPC. This is, undoubtedly, subject to the law providing expressly that that Court of Sessions may take cognizance of any offence as the Court of Original Jurisdiction. There is no provision in the Act which expressly authorises the special court which is the Court of Sessions to take cognizance of the offence under Chapter IV."
14. Further submission is that the summoning order itself is non-speaking and unreasoned and it does not even disclose any reason.
15. Reliance has been placed upon in the case of SLP (Criminal) No.5067 of 2024, M/S J.M. Laboratories Vs. State of Andhra Pradesh decided on 30.1.2025, para 9 whereof is quoted hereinunder.-
"9. In the present case also, no reasons even for the namesake have been assigned by the learned Magistrate. The summoning order is totally a non-speaking one. We therefore find that in light of the view taken by us in criminal appeal arising out of SLP (Crl.) No. 2345 of 2024 titled "INOX Air Products Limited Now Known as INOX Air Products Private Limited and Another v. The State of Andhra Pradesh", and the legal position as has been laid down by this Court in a catena of judgments including in the cases of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, Sunil Bharti Mittal Vs. Central Central Bureau of Investigation, Mehmood U Rehman Vs. Khazir Mohammad Tunda and others and Krishna Lal Chawla and others Vs. State of Uttar Pradesh and another, the present appeal deserves to be allowed."
16. Since the crucial aspect of the matter as argued and noticed above had not been adverted to while summoning the applicant on 22.05.2025 by Additional District Judge/ FTC-II which ought to have been taken into notice and considered before notice, thus, the order dated 22.05.2025 cannot be sustained.
17. Accordingly, the present application is decided in the following term:
(a) The order dated 22.05.2025 passed by learned Additional District and Sessions Judge/F.T.C.-II, District-Basti, in complaint case No 639 of 2009 is set aside.
(b). The matter stands remitted back to the competent court to pass fresh order strictly in accordance with law.
18. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 09.10.2025 and the court below shall proceed to decide the said proceeding with most expedition.
19. Accordingly, the application stands disposed of.
(Vikas Budhwar,J.) September 12, 2025 A. Prajapati