Kerala High Court
M/S.Kabra Drugs Limited vs State Of Kerala on 14 February, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 2ND DAY OF APRIL 2014/12TH CHAITHRA, 1936
Crl.MC.No. 1511 of 2014 (E)
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[AGAINST THE ORDER DTD. 24/09/2013 IN C.M.P.NO.171 OF 2013 IN
C.C. NO.49 OF 2011 OF THE CHIEF JUDICIAL MAGISTRATE'S COURT,
KOZHIKODE]
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PETITIONER/PETITIONER/1ST ACCUSED:
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M/S.KABRA DRUGS LIMITED,
REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR,
SHYAM KABRA, S/O.NARAYAN DAS KABRA, 103,
MANAS BHAVAN, 11-R.N.T MARG, INDORE,
MADHYA PRADESH.
BY ADVS.SRI.V.G.ARUN,
SRI.T.R.HARIKUMAR.
RESPONDENT/RESPONDENT/RESPONDENT:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI - 682 031.
BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.P.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 02-04-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Prv.
CRL.M.C. NO.1511/2014-E:
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE-I: COPY OF THE COMPLAINT FILED BEFORE THE CHIEF-
JUDICIAL MAGISTRATE'S COURT, KOZHIKODE DATED 14.2.2011.
ANNEXURE-II: COPY OF THE EXTRACT OF THE MINUTES OF THE BOARD
MEETING OF THE FIRST ACCUSED COMPANY DATED 30.6.2007.
ANNEXURE-III: COPY OF THE CONSENT LETTER DATED NIL ISSUED BY
MADHUSUDAN SHARMA THE 2ND ACCUSED.
ANNEXURE-IV: COPY OF THE EXTRACT OF THE MINUTES OF THE BOARD
MEETING OF THE FIRST ACCUSED COMPANY DATED 29.9.2008.
ANNEXURE-V: COPY OF THE C.M.P NO.171 OF 2013 IN C.C 49 OF 2011 FILED
BEFORE THE CHIEF JUDICIAL MAGISTRATE'S COURT,
KOZHIKODE.
ANNEXURE-VI: COPY OF THE ORDER DATED 24.9.2013 IN C.M.P NO.171 OF 2013
IN C.C 49 OF 2011 OF THE CHIEF JUDICIAL MAGISTRATE'S
COURT, KOZHIKODE.
RESPONDENT'S ANNEXURES: NIL.
//TRUE COPY//
P.S. TO JUDGE.
Prv.
K. RAMAKRISHNAN, J.
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Crl.M.C.No.1511 of 2014
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Dated this the 2nd day of April, 2014.
O R D E R
This petition is filed by the petitioner, who is the 1st accused in C.C.No.49/2011 on the file of the Chief Judicial Magistrate Court, Kozhikode, to quash the complaint and also to quash the order in CMP.No.171/2013 pending before that court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').
2. It is alleged in the petition that petitioner is the Chairman and Managing Director of the first accused company in C.C.No.49/2011 pending before the Chief Judicial Magistrate Court, Kozhikode. The second accused in the case is the Additional Director of the first accused company and he was in charge of the day to day affairs of the company. A complaint was filed by the Drugs Inspector, Kozhikode against the petitioner company and the second accused alleging commission of offence under Section 18(a)(i) of the Drugs and Cosmetic Act read with Section 27 (d) of the said Act. The second accused is the duly appointed person by the company to manage the day Crl.M.C.No.1511 of 2014 2 to day affairs of the company and as per the Act, he can represent the company as well in prosecution and he alone will be responsible for the offence, if any, alleged to have been committed by the company. The petitioner has been shown as an accused represented by its Managing Director, which is not correct because second accused is the person, who has been authorized to conduct the day to day business of the company and he will be responsible under the Drugs and Cosmetics Act for the offence committed by the company. So, the petitioner filed CMP.No.171/2013 for dropping the proceedings as against the Managing Director and proceed against the first accused company and the second accused alone and that petition was dismissed by the learned Magistrate as per Annexure-VI order on the ground that in view of the amendment, that has become an offence exclusively triable by the Sessions Court and the case was converted into C.P.No.11/2013 and so the prayer cannot be accepted by that court and the petitioner can raise its contention before the Sessions Court after the case is committed to the Sessions Court and dismissed the petition. Aggrieved by the same, the present petition has been filed by the petitioner seeking the Crl.M.C.No.1511 of 2014 3 following relief:
For these and other grounds to be submitted at the time of hearing, it is humbly prayed that this Hon'ble Court may be pleased to quash Annexure-I complaint and Annexure-VI order and all further proceedings in C.C.49 of 2011 pending before the Chief Judicial Magistrate's Court, Kozhikode as against the petitioner.
3. Heard the counsel for the petitioner and the learned Public Prosecutor.
4. The learned Public Prosecutor as directed by this Court filed a report of the Drugs Inspector, who is the complainant in the lower court, which reads as follows:
1. The above Crl.M.C No.1511/2014 of High Court was filed by the accused in Case No.49/2011 to quash the complaint in C.C.No.49/2011 and orders passed in CMP.No.171/2013 in C.C.No.49/2011 by Chief Judicial Magistrate, Kozhikode on 24.9.2011.
2. Accused No.1 in the above case is the company represented by its Chairman & Managing Director responsible for the manufacture of the not of Standard Quality drug sterile Water for Injection IP Batch Crl.M.C.No.1511 of 2014 4 No.@1-3, Mfg. Date 3/2008 Exp. Date 2/2010. Accused No.2 is the Director and Deputy Manager Legal of the first accused company and is the overall in charge of manufacturing.
3. The accused manufactured and sold the drug water for Injection IP, Batch No.W1-3, Mfg. Date 3/2008 Exp. Date:2/2010, which was declared as not of Standard quality by the Government Analyst, Kerala and committed an offence under Section 18(a)(i) of the Drugs and Cosmetics Act 1940 (hereinafter referred to as the Act) and are punishable under Section 27(d) of the Act.
4. It is submitted statutory sample of the drug Water for Injection IP, Batch No.W1-3, manufactured by the first accused firm was drawn for analysis on 15.9.2008 by the Drug Inspector from the Central Veterinary Store, Puthiyara, Kozhikode as per Section 23 of the Act. One portion of the sample was forwarded to the Government Analyst, Kerala on 16.9.2008. The sample was declared as Not of Standard Quality by the Government Analyst, Kerala as it failed in the test for sterility through their Test Report in Form No.13 bearing No.SW 4091/08/DTC dated 23.10.2008. One copy of the test report was forwarded to the accused on 17.11.2008 in compliance to Section 25(2) and 23(4) Crl.M.C.No.1511 of 2014 5
(iii) of the Act. The manufacturer challenged the validity of the test report vide their letter date 11.12.2008 under Section 25(3) of he Act. Hence a petition was filed before the Hon'ble Chief Judicial Magistrate Court, Kozhikode to send the sample to the Central Drugs Laboratory, Calcutta-16 for further testing under Section 25(4) of the Act. The Hon'ble Court forwarded the sample to the central Drug Laboratory. The Central Drugs Laboratory also declared the sample as not of Standard Quality as it failed in the test for sterility.
Thus complaint was filed before the Hon'ble Chief Judicial Magistrate, Kozhikode for violation Section 18 (a0(i) of the Act punishable under Section 27(d) of the Act.
5. The case was taken on files as C.C.No.49/2011 pending trial before the Hon'ble Chief Judicial Magistrate Court. The accused were granted bail. Meanwhile the Drugs and Cosmetic Act, 1940 was amended as per amendment of 26 of 2008 with effect from 10.08.2009. As per Section 32(2) of the Amended Act, the learned Magistrate found the case is to be committed to a Court of Sessions and the case is refiled as C.P.No.11/2013. Meanwhile Crl.M.P.171/2013 in C.C.No.49/2011 was filed by the accused with a prayer to drop proceedings against Shyam Kabra Chairman & Crl.M.C.No.1511 of 2014 6 Managing Director of the Company. The Hon'ble Chief Judicial Magistrate vide Order dated 24.9.2013 dismissed the petition since the court has initiated committal proceedings, it has no power to consider the prayer.
6. Meanwhile the Hon'ble High Court of Kerala in Crl.R.P.No.172/2013 passed orders dated 30.8.013 that offences under Section 18(a)(i) are triable by Magistrate Courts. Consequently the Chief Judicial Magistrate, Kozhikode renumbered the case as Calender Case on 6.3.2014 and posted for hearing on 23.5.2014.
7. As per Section 34 of the Act where an offence under this Act has been committed by a company every person who at the time of the offence w as committed, was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Thus Shyam Kabra who was the Chairman and Managing Director of the Company shall be liable to proceeded against and punished.
In the above circumstances, Crl.M.C may be dismissed in accordance with law.
5. The submission made by the counsel for the petitioner is that in view of the fact that the second accused has been Crl.M.C.No.1511 of 2014 7 nominated by the company to represent the company in the day to day affairs, under Section 34 of the Drugs and Cosmetics Act, only the person, who is in charge of the day to day affairs of the company, alone can be proceeded against for offence committed by the company.
6. The petition was opposed by the Public Prosecutor on the ground that in view of the fact that the case has been renumbered as C.C.No.51/2014 before the Chief Judicial Magistrate, the question can be considered by that court itself.
7. The learned Chief Judicial Magistrate rejected the application only on the ground that since as per the amendment, the offence under the Drugs and Cosmetics Act has become the offence exclusively triable by Sessions Court and the case has been converted to C.P.No.11/2013, that court has no power to consider the question raised by the petitioner and that can be raised before Sessions Court after committal and taking cognizance by that court. Now it is seen from the report of the Drugs Inspector as well as the report sent by the Chief Judicial Magistrate that as per the order in Crl.RP.No.1742/2013 in some other cases, this Court has found that minor offence like Section18(1)(a) need not be treated as offence triable by Crl.M.C.No.1511 of 2014 8 Sessions Court and only offence which has been mentioned in the notification alone can be treated as the offence triable by Sessions Court and only those case need be committed to Sessions Court for trial. So in view of that decision, the Chief Judicial Magistrate has already converted C.P.No.11/2013 into C.C.No.51/2014 and that was pending before that court. So under the circumstances, this Court feels that the order passed by the Chief Judicial Magistrate as per Annexure-VI order can be set aside and it can be remitted to the court below for fresh consideration and disposal in accordance with law and that will be sufficient and that will meet the ends of justice.
8. The counsel for the petitioner also submitted that in the case of a company being made an accused, under Section 305 of the Code, option can be given to the company to apply to the court to be represented by a person nominated by the company and if such a request is made, that also can be considered by the learned Magistrate.
9. So under the circumstances, the petition is disposed of as follows:
The order passed by the Chief Judicial Magistrate as per Annexure-VI order is set aside and it is remitted to the court Crl.M.C.No.1511 of 2014 9 below for fresh consideration and disposal in accordance with law. The learned Chief Judicial Magistrate is directed to consider the contention raised by the petitioner and then dispose of that application (CMP.No.171/13) in accordance with law. If the petitioner applies to the court below under Section 305 of the Code and seeks for the first respondent to be represented through a nominated person, then the learned Chief Judicial Magistrate is directed to consider that application also and pass appropriate orders in accordance with law. Till the petitions are disposed of, the non bailable warrant issued against the petitioner is directed to be kept in abeyance. Parties are directed to appear before the court below on 22.4.2013.
With the above directions and observations, this petition is disposed of.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge