Allahabad High Court
Supermax Drugs And Pharmaceuticals Pvt ... vs State Of U.P. And Another on 6 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:74201 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 12385 of 2025 Applicant :- Supermax Drugs And Pharmaceuticals Pvt Ltd And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Kumar,Akhilesh Chandra Shukla Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
1. Heard Sri Akhilesh Chandra Shukla, learned counsel for the applicants and Sri S.K. Singh, learned A.G.A. for the State.
2. This is an application under Section 528 of BNSS preferred by the applicants for quashing the summoning order dated 28.08.2024 passed by Chief Judicial Magistrate Amroha in Complaint Case No.9521 of 2024 U/s 18(a) (i)/27 (d) of Drugs and Cosmetic Act 1940 P.S. Gajraula, District Amroha and order dated 03.09.2024 passed by District Judge transferring the case to Additional Session Judge, pending in court of Additional Session Judge 1st Amroha.
3. This Court on 15.04.2025 entertained the application while seeking instructions from the learned A.G.A.. On 22.04.2025, learned A.G.A. took further time to seek instructions.
4. Today, when the matter has been taken up, the learned A.G.A. has produced before this Court instructions dated 02.05.2025 and according to him, they are self-sufficient and he does not propose to file any response. A copy of the instructions had been handed over to learned counsel for the applicants, who submits that he does not wish to file any reply.
5. With the consent of the parties, the application is being decided at the fresh stage.
6. The case of the applicants, who are five in number, is that the applicant no.1 is a Private Limited Company, which is engaged in manufacturing of pharmaceuticals and drugs and it possesses a statutory license under Form-28 issued by the authorities under Drugs and Cosmetics Act, 1940. According to the applicants, a surprise inspection took place in the premises of M/s Pasha Medical Store, District Amroha on 05.09.2023 by a team of officials under the Drugs and Cosmetic Act including O.P. No.2, Drug Inspector, Amroha, wherein samples of four drugs/ pharmaceuticals were taken on 05.09.2023 from the proprietor of Pasha Medical Store and proceedings for payment of fair price and receipts and drawing of samples and filling up of Form-17 and 17-A was done. However, the proprietor of the Firm M/s Pasha Medical Store did not receive the payment, which was sought to be offered from the sample, which was drawn. The samples so collected on 05.09.2023 was sent to Government Analyst, U.P. Lucknow which was received by the Government Analyst U.P. Lucknow on 13.10.2023, according to which the sample being Amoxycillin capsules IP 500 mg of the subject batch had the manufacturing date January 2023 and expiry December 2024 and after necessary tests, it was found as under:-
Assay- Content of Amoxycillin: 82.31% w/w of stated amount of drug in each capsule of average weight content (Limit 90% to 110%) The sample does not confirm to IP in respect of content of Amoxycillin.
7. Consequent to the receiving of the test report dated 04.11.2023, a notice was issued to the M/s Pasha Medical Store, Amroha seeking details of the seller of the said medicine. M/s Pasha Medical Store on 08.12.2023 apprised the authorities that the said drug was purchased from M/s Dashmesh Distributors Pvt. Ltd. A notice was thereafter issued to M/s Dashmesh Distributors Pvt. Ltd., who in turn on 17.1.2024 apprised the authorities that the said drug was purchased from M/s Jupiter Health Healers, Delhi. A notice is stated to have been issued to Jupiter Health Healers, Delhi who apprised that the said drug was supplied by the applicant no.1. On 14.03.2024, the O.P. No.2 issued notice to applicant no.1 accompanied with the report as well as the samples and sought certain information. On the receipt of the said notice, on 12.04.2024, a request was made by the applicant company mentioning therein that they were not satisfied with the Government Analyst, U.P. at Lucknow and the sample be sent for analysis to Central Laboratory along with deposit of the money. The Central Drugs Laboratory by virtue of its report opined that the sample does not confirm to IP with respect to Assay/content of Amoxycillin. Thereafter on 28.08.2024, a complaint stood lodged by O.P. No.2 against the applicants under Section 18(a)(i)/27(d) of the Drugs and Cosmetics Act, 1940. On 28.08.2024, the CJM, Amroha in Case no.9521 of 2024, State Vs. Supermax Drugs and Pharmaceuticals Pvt. Ltd. and others proceeded to summon the applicants under Section 18(a)(i)/27(d) of the Drugs and Cosmetics Act, 1940. On 03.09.2024, an order came to be passed by the District Judge, transferring the case to the Court of Addl. Sessions Judge-I, Amroha.
8. Questioning the summoning order dated 28.08.2024 as well as the order 03.09.2024 of the District Judge transferring the case of the Chief Judicial Magistrate, Amroha to Addl. Sessions Judge-I, Amroha, the present application has been filed.
9. Learned counsel for the applicant has submitted that the entire proceedings emanating from lodging of the complaint culminating into the summoning order followed by an order passed by the District Judge, transferring the said case, cannot be sustained for a single moment for more than one reason.
10. Submission is that first of all the complaint admittedly has been lodged by the O.P. No.2 on 28.08.2024, which is post-enforcement of Bhartiya Nagrik Suraksha Sanhita, 2023, which came into effect on the 1st of July, 2024 and according to the first proviso to Section 223 under Chapter XIV, no cognizance of the offence is to be taken by the Magistrate without putting the accused an opportunity of being heard. Argument is that apparently, in the present case in hand, the complaint stood lodged on 28.08.2024 and the applicant has been summoned on the same day, i,e, on 28.08.2024, even without putting to notice and granting opportunity to the applicant to put forward its stand at a pre-summoning stage. It is thus contended that there has been infraction of the provision of Section 223 of BNSS of 2023, which is mandatory in nature. Further submission is that Section 193 of the CrPC, no Court of Sessions shall take cognizance of the offence, as an original Court of Jurisdiction unless the case has been submitted under this Code. Similarly, the paramateria provisions is in Section 213 of the BNSS, wherein also until unless the case is committed to the Court of Sessions by the Jurisdictional Magistrate, cognizance is not liable to be taken by the Special Court.
11. Contention is that in the present case without there being any committal of the case by the Jurisdictional Magistrate straightaway the case stood transferred on the order of the District Judge to the Addl. District Judge from the Jurisdictional Magistrate. Argument is that the same is not as per the provisions of the statute. Learned counsel for the applicants has placed reliance upon the judgment of the Hon'ble Apex Court in Union of India vs. Ashok Kumar Sharma (2021) 12 SCC 674, so as to buttress his submission that without there being any committal of the case by the Jurisdictional Magistrate, no cognizance could have been taken by the Special Court.
12. It is also contended that Section 34 of the Drugs and Cosmetics Act, 1940 deals with offence by companies, according to which where an offence under the Act has been committed by a company every person who at the time of offence was Incharge and was responsible to the company for conduct of the business of the company as well as company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
13. Submission is that in the entire complaint dated 28.08.2024, there is no recital about the fact that the applicant nos. 2 to 5 at the time of the commission of the offence were Incharge and was responsible to the company for conduct of the business of the Company so as to invoke the proceeding holding them guilty of offence for being proceeded against and punished accordingly. Reliance has been placed upon a judgment of coordinate Bench of this Court in Yashpaul Chail Vs. State of U.P., 2024 (3) ALJ 410.
14. Additionally, it has been argued that the summoning order dated 28.08.2024 is cryptic and non-speaking and even it does not recite the case of the complainant, less to say about prima facie consideration and in order to buttress the said submission, reliance has been placed upon the judgment in the case of Inox Air Products Limited vs. State of Andhra Pradesh, AIROnline 2025 SC 54 and M/s J.M. Laboratories v. State of Andhra Pradesh: 2025 INSC 127.
15. Learned counsel for the applicants also submits that even on merits of the complaint, no offence is made out and further reliance has been placed upon the guidelines issued under Section 33P, Annexure-12 at page-61 that they are mandatorily required to be followed. It is also contended that the penal provisions do not stand attracted.
16. It is thus prayed that the summoning order as well as the order of the District Judge, transferring the case to the Court of Addl. Sessions Judge, be set aside.
17. Sri S.K. Singh, learned A.G.A. on the strength of instructions, while countering the submissions of learned counsel for the applicant has submitted that on merits the applicant has no case at all, as during the course of inspection, irregularities were found and there is no missing link, vis-e-vis the premises from where the sample of drugs in question was drawn and the manufacturer who are the applicants herein. However, he submits that the first proviso to Section 223 came into existence before the date on which the complaint has been lodged and further Section 213 of the BNSS/Section 193 of CrPC may play a role. He submits that the summoning order be set aside, as the same appears to be non-speaking while remitting the matter back to pass a fresh order.
18. I have heard the submission so made across the Bar and perused the record carefully.
19. Relevant extract of the summoning order dated 28.08.2024 and the order dated 03.09.2024 are being quoted below:-
"28.08.18 आज यह परिवाद पत्र अभियुक्तगण सुपरमैक्स ड्रग्स व फार्मास्यूटिक्ल प्रा० लि० ठाकर दास भाटिया निदेशक, चेतन भाटिया निदेशक, सौरभ भाटिया निदेशक, अलोके घोष Aloke निदेशक के बिरूद्ध अन्तर्गत धारा 18 (a) (i) दण्डनीय अन्तर्गत धारा 27 (डी) औषधि एवं प्रसाधन सामग्री अधिनियम का प्रस्तुत हुआ। अवलोकन किया गया परिवाद के रूप् में दर्ज रजिस्टर हो।
समस्त प्रपत्रों का अवलोकन किया चूंकि परिवादी लोक सेवक है। अतः बयान अन्तर्गत धारा 200 दं०प्र०सं० की आवश्यकता नही है। परिवाद के अवलोकन से विदित होता है कि उक्त अधिनियम को धारा 18 (a) (i)/27 (डी) औषधि एवं प्रसाधन सामग्री अधिनियम के अपराध के लिये तलब किये जाने का आधार पर्याप्त है। अतः धारा 302 के बयानो की भी आवश्यकता नही है।
अतः उक्त अभियुक्तगण को धारा 18 (a) (i)/27 (डी) औषधि एवं प्रसाधन सामग्री अधिनियम के अपराध में विचारण हेतु तलब किया जाता है। अभियुक्तगण के बिरूद्ध समन दिनांक 24. 09.2024 के लिये जारी हो"
"03.09.24 मा०जनपद न्यायाधीश महोदय के आदेशानुसार पत्रावली विधि अनुसार सुनवाई निस्तारण हेतु मा० अपर जिला जज एवं सत्र न्यायाधीश प्रथम को अन्तरित की जाती है।"
19. Apparently, inspection took place at the premises of one of the retailers by the name of Pasha Medical Store, wherein samples were drawn and they were sent for laboratory test to Government Analyst, U.P. at Lucknow and the sample is stated to have been found not as per the permissible limit. Thereafter enquiry stood undertaken by O.P. No.2 and finally at discovery, the applicant company was put to notice requiring its say on the report, which was objected and the retained sample was sent for testing in the Government Laboratory which was also not found as per specification.
20. As a matter of fact, the Court finds that the complaint was filed on 28.08.2024 and the summoning order was issued on the same day, i.e. on 28.08.2024. Apparently, the provisions of Section 223 of BNSS amongst other provisions came into force w.e.f. 01.07.2024, thus the question would be putting to notice the accused at a pre-summoning stage. The said aspect remains untouched in the summoning order.
21. Further the summoning order itself is cryptic and does not recite reason or even exhibit consideration on prima facie basis, the case of the complainant that it is triable. The Hon'ble Apex Court in M/s J.M. Laboratories v. State of Andhra Pradesh: 2025 INSC 127 in para-9, has observed as under: -
"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."
22. Importantly also, the question that post-summons, the question of application of Section 193 of CrPC/ 213 of BNSS for committal of the case to the Sessions by the Jurisdictional Magistrate is also a relevant factor, which ought to have been noticed while transferring the case on 03.09.2024 from the Jurisdictional Magistrate to the Court of Sessions. The consideration ought to have been in the light of the judgment in the case of Ashok Kumar Sharma (supra) wherein in paragraph-49 following was observed:-
"49. .... In regard to offences contemplated under Section 32(3), the Police Officer may have power as per the concerned provisions. Being a special enactment, the manner of dealing with the offences under the Act, would be governed by the provisions of the Act. 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. ..."
23. The question of requirement while making specific averment in the light of Section 34 of the Drugs and Cosmetics Act in the matter where offences have been committed by the company also assumes importance and the court below before summoning had to apply its mind on the said aspect of the matter, which apparently is lacking.
24. The other issues might be there, which can always be raised at an appropriate time.
25. Looking into the over all facts situation and circumstances of the case and the manner in which the summoning order has been passed, this Court is of the firm opinion that the same cannot be sustained.
26. Accordingly, the application is allowed. The summoning order dated 28.08.2024 passed by Chief Judicial Magistrate Amroha in Complaint Case No.9521 of 2024 U/s 18(a) (i)/27 (d) of Drugs and Cosmetic Act 1940 P.S. Gajraula, District Amroha and order dated 03.09.2024 passed by District Judge transferring the case to Additional Session Judge, pending in court of Additional Session Judge 1st Amroha are set aside. The matter stands remitted back to the court below to pass a fresh order strictly in accordance with law for facilitating the fresh exercise, the parties shall file a certified copy of the order before the court below by 23.05.2025.
27. The instructions filed today are taken on record and marked as Appendix 'A'.
Order Date :- 6.5.2025 N.S.Rathour (Vikas Budhwar, J)