Gauhati High Court
Nabin Ch. Bachubhai Doshi @ Nabin Bhai ... vs The State Of Assam & Anr on 4 August, 2017
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
& ARUNACHAL PRADESH)
Criminal Petition No.312/2017
Sri Nabin Chandra Bachubhai Doshi @
Nabin Bhai Doshi, son of Bachubhai
Gulab Chand Doshi, resident of 1001/
Benhur Apartment, Narayan Dabholkar Road,
Malabar Hill, PS-Malabar Hills, Mumbai-400006,
......... Petitioner
-Versus-
1.The State of Assam
2.Shri Shyamanta Sarma,
Sub-Inspector of Police,
CID, Assam, Guwahati,
Pin- 781 007
............Opp. Parties
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
For the Petitioner : Mr. B.K.Mahajan,Advocate
For the opp. party : Ms. S. Jahan, Addl. P.P.
Date of hearing : 14.7.2017
Date of Judgment : 04.08.2017
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JUDGMENT & ORDER (CAV )
Heard Mr. B.K.Mahajan, learned counsel for the petitioner as well as Ms. S.
Jahan, learned Addl. P.P. Assam.
2. By this application U/Ss 482/397/401 CrPC, petitioner has prayed for quashing
the FIR of CID Police Station Case No.28/2016 registered U/S 22(C) of the NDPS Act.
3. The case in brief is that one Shyamanta Sarma, S.I. of Police lodged an FIR
before the Officer-in-Charge of CID Police Station stating inter alia that on the strength
of secret information on 10.8.2016 godown of GTC India (P) Ltd. Was searched and
recovered C-KOF Syrup in 126 Nos of cartons containing Codeine as the same is
banned by Government of India vide Notification No.S.O.983(E) dated 10.3.2016.
4. Upon receipt of the FIR the Officer-in-Charge of CID Police Station registered
CID P.S.Case No. 28/2016 U/S 22(C) of the NDPS Act and investigation is pending.
5. Petitioner is the Chairman of DWD Pharmaceuticals Limited and one Pramod
Ranjan Das is the C & F agent of the company of the petitioner dealing with marketing
and selling of the drug in question in the State of Assam having its registered office at
Ram Krishna Mission Road, Ulubari,Guwahati. One of the employees of the company
namely Krishna Saha was arrested in connection with the instant case and Pramod
Ranjan Das is the C & F agent has been granted the privilege of pre-arrest bail by this
Court. The Delhi High Court stayed the operation of notification No.909(E) dated
10.3.2006 vide order dated 17.3.2016, as the parent company of the petitioner
namely, Coral Laboratories filed a Writ Petition being WP(C)No.2348/16 challenging
the said notification No.909(E) dated 10.3.2016 and their petition was tagged along
with the other batch of writ petition and prayer was also allowed along with other writ
petitions by a common judgment dated 1.12.2016 and said notification has been
quashed. Petitioner is C & F agent of said Coral Company.
6. The investigating agency has issued a notice under Section 41 CrPC to the
petitioner asking him to appear before the IO of the case along with documents for
verification and for recording the statement of the petitioner positively on 25.4.2017
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despite all the relevant documents being placed before it on several occasions. Being
highly aggrieved and dissatisfied with the issuance of Notice despite the relevant
notification being quashed by the Hon'ble Delhi High Court, the petitioner filed this
petition to quash the proceeding pertaining to CID P.S.Case No.28/16.
7. According to the petitioner, Notification No.S.O.983 (E) dated 10.3.2016 finds
place in the FIR, which (according to the investigating agency) has banned the drug in
question i.e C-KOF in respect of combination of Chlorpheniramine+ Codeine
Phosphate+ Methanol Syrup , whereas the drug in question seized by the investigating
agency is a combination of Chlopheramine Maleate + Codeine Syrup covered by
Notification No.909 (E) and the said notification has been quashed by the Delhi High
Court. Petitioner further contends that continuation of the investigation of the case
would be an exercise in futility as the notification mentioned in the FIR i.e. S.O.983 (E)
does not cover the combination of the drug in question rather it is covered by
notification No.909(E) and as the parent company of the petitioner namely, Coral
Laboratories preferred WP(C)No.2348/16 challenging the Notification 909(E) along with
other petitioners and as the same was stayed and finally quashed after due
consideration by the Hon'ble Delhi High Court, the FIR in question should be set aside
and quashed. According to the petitioner quashing of notification No.909(E) on
10.3.2016 was not challenged by the respondents, therefore the same quashment of
the notification attained its finality. Petitioner submits that ingredients/composition of C-KOF Syrup would show that the notification No.983(E) does not cover the same, whereas the Notification No.909(E) covers the drug in question of the petitioner. It is the further contention of the petitioner that Controller of Drugs, Assam vide letter No. HSD/WPC/271/4351 dated 20.12.206 has given no objection in favour of the company to sell products in respect of which the Hon'ble Delhi High Court has quashed the Ban Notification in WP(C)2212/2016 and batch of writ petitions (which includes petition by Coral Company) and as such the FIR in question should be quashed.
8. The State Respondent by resisting the prayer of the petitioner has filed written objection in the form of affidavit contending that the CID officials / informant has recovered C-KOF Syrup which consists of an ingredient i.e.codeine which stand banned by the Central Govt. vide notification no. SO-983 (E) dated 10.3.2016 and the IO has served the notice upon the petitioner/company to appear before the IO along with necessary documents but he did not turn up. As against the challenge made by 4 the petitioner that the notification SO No.909 (E) which prohibits the combination of Chlopheramine Maleate + Codeine phosphate that has been set aside by the Delhi High Court and the articles seized covers by the said notification but not covered the notification being No.SO 983 dated 10.3.2016, it contends that same is not maintainable. As regards the judgment of the Delhi High Court which has quashed the aforesaid notification, it has been submitted that the Hon'ble Supreme Court who upon deliberation on a law can make the conclusion applicable for the country. The law declared by the High Court of the States are applicable only within the territory of the concerned State.
9. It is further submitted that the notifications 344 in numbers issued by the Central Government declaring a number of fixed those combinations injurious to human beings were quashed by the Delhi High Court on 1.12.2016 on technical grounds. This notification as such will not be operative in the territory of Delhi, but in Assam or any other State said notifications are very much in operation. Therefore, the FIR lodged on the basis of the aforesaid notification by the CID is not invalid in Assam and as such the FIR cannot be set aside and quashed. As regards the component in the seized drugs like C-KOF Syrup it is stated that it consists of codeine phosphate + Chlopheramine Maleate + Cough Syrup. According to the report of the drug controller codeine phosphate and codeine syrup amounts to same thing. It is also reported by the drug controller that the maleate, phosphate or syrup are additives in the main ingredient are codeine or Chlopheramine. A bare perusal of the bottle of C-KOF as annexed by the petitioner it seems that there are three ingredients as provided under notification 983 (E), whereas in notification SO 909 (E) there are two ingredients as stated above. Accordingly, it is submitted that the drugs involved in the instant case is covered by notification SO 983 (E).
10. Further contention that has been raised in written objection is that the present FIR was lodged on 11.8.2016, whereas the judgment and order of Delhi High delivered on 1.12.2016 i.e. much after lodging the FIR and as such the contention raised by the petitioner that the FIR was lodged while the interim order staying the operation of notification were in force is not valid. Further, it contends that the interim order dated 17.3.2016 shows that the notification was stayed only qua the petitioner appearing before the Hon'ble Delhi High Court and such interim relief has not been extended to any other person except the petitioner. Furthermore, the notification which was 5 challenged before the Delhi High Court did not find place as about the notification No.S.O.983(E). Lastly it is contended that as per mandate of the Article 226 of the Constitution the High Court exercised its jurisdiction only within the territories of the respective States and as such the order of the Hon'ble Delhi High being inoperative in the State of Assam, there is no ground of quashing the FIR as the drug namely C-KOF come within the purview of notification S.O.983(E).
11. Considered the argument put forward by the learned counsel for the petitioner Mr. B. K. Mahanjan as well as learned Addl. P.P. Ms. S. Jahan for the State Respondents. There was forceful deliberation from both the sides as regards the content of the seized drugs as to whether it contains two components or three components having regard to the notification mentioned above. Further deliberation as regards the applicability of the notification as mentioned in the FIR and it has been highly contended by both the parties as much as there are serious debates as regards the applicability of the order of the Hon'ble Delhi High Court, within the territory of Assam.
12. I have given my anxious consideration to the aforesaid deliberation as well as the matters on record and documents annexed. Let us first appreciate the component of drugs, a photocopy of said seized C-KOF drugs bottle has been annexed with the present petition and there is no dispute as regards the same vide Annexure- H (internal page 144) which reflects as follows-
"100 ml - codeine phosphate and Chlopheramine Maleate Cough Syrup C-KOF Cough Syrup ... Anti Alergic ... Anti tussive.
... For dry cough Each 5 ml contains codeine phosphate IP- 10 mg Chlopheramine Maleate IP-4 mg Flavoured Syrupi base ....qs Marketed by DWD Pharmaceuticals, Mumbai, manufactured by Coral laboratories.
Let us also reproduce the related two notifications which are as below:6
" NOTIFICATION New Delhi, the 10th March, 2016
S.O. 983 (E).- Whereas, the Central Government is satisfied that the used of the drug fixed dose combination of Chlorpheniramine+ Codeine Phosphate + Menthol Syrup is likely to involve risk to human beings whereas safer alternatives to the said drug are available;
And Whereas, the matter has been examined by an Expert Committee appointed by the Central Government and the said Expert Committee recommended to the Central Government that the said drug is found to have no therapeutic justification;
And whereas on the basis of the recommendations of the said Expert Committee, the Central Government is satisfied that it is necessary and expedient in public interest to regulate by way of prohibition of manufacture for sale , sale and distribution for human use of the said drug in the country."
" NOTIFICATION New Delhi, the 10th March, 2016
S.O. 909 (E).- Whereas, the Central Government is satisfied that the use of the drug fixed dose combination of Chlopheniramine Maleate + Codeine Syrup is likely ot involve risk to human beings whereas safer alternatives to the said drug are available:
And whereas, the matter has been examined by an Expert Committee appointed by the Central Government and the said Expert Committee recommended to the Central Government that the said drug is found to have no therapeutic justification;
And whereas on the basis of the recommendations of the said Expert Committee, Central Government is satisfied that it is necessary and expedient in public interest to regulate by way of prohibition of manufacture for sale , sale and distribution for human use of the said drug in the country."
Now, therefore, on the basis of the recommendations of the said Expert Committee and in exercise of powers conferred by section 26A of the Drugs ad Cosmetics Act, 1940 (23 of 1940), the Central Government 7 hereby prohibits the manufacture for sale and distribution for human use of drug fixed does combination of Chlopheniramine Maleate + Codeine Syrup with immediate effect. "
As per notification S.O. 983 (E) the drug fixed dose combination of Chlorpheniramine + codeine phosphate + Menthol syrup and the notification S.O.909 (E) refers to the drugs fixed dose combination of Chlorpheniramine Maleate + codeine.
13. A bare reading of the above two notifications it reflects that the notification S.O. 983 (E) indicates the drugs which constitute of three components whereas as per the notification S.O.909 (E) it compromises of two combination. As has been discussed above the seized drugs comprises of two components but not of three components as has been submitted from the respondent side. Obviously cough syrup is not a component rather it indicates that it is in liquidate form not in tablet form and the C- COF is a name of the drug only. In that view of the matter the seized drugs will be covered by the notification no. S.O.909 (E), not by notification S.O. 983 (E). It may be mentioned that as per the report of drug controller codeine phosphate and codeine syrup amount to same thing. Apparently it can be seen that one of the component mentioned in the notification S.O.983 (E) the Menthol syrup is not found in the seized drugs and as such, there remains no doubt that the said articles will be covered by the notification no.S.O. 909 (E) and the informant in this case has wrongly mentioned the notification while he made the seizure. The aforesaid aspect has been lucidly placed before this Court by the petitioner's side, there can be no hesitation to hold that the FIR has been registered on wrong notion of law.
14. The next debate on the point of applicability of the decision of the Hon'ble Delhi High Court within the jurisdiction of Assam. It is worth mentioned that the notification no.S.O. 909 (E) has been quashed by the Hon'ble Delhi High Court by its order dated 1.12.2016 in a series of writ petitions. The learned counsel for the petitioner Mr. Mahajan in his elaborate argument has pointed out that Coral Laboratories Ltd. is the manufacture of the aforesaid drug C-COF from which all the dealers as well as C&F Agent procured the goods for releasing the same in the market. The said company issued a certificate vide Annexure-E dated 22.8.2016 that M/s DWD Pharmaceutical Ltd is marketing all range of pharmaceuticals, nutraceuticals products manufactured at 8 their plants across the India.(Name of DW pharmaceutical printed in the seized bottles) The present petitioner is the Chairman of DWD Pharmaceutical Ltd. and one Promod Ranjan Das is the C&F Agent of the Company of the petitioner dealing with marketing and selling of the drugs in question in the State of Assam and having its registered office at Ramkrishna Road, Ulubari,Guwahati. One of the employees Krishna Saha was arrested in connection with the instant case and C & F Agent Promod Ranjan Das has been granted the privilege of pre-arrest bail. The same aspect is reflected in the FIR, same is read as follows:
" To , The Officer-In-Charge, CID Police Station, CID Assam, Ulubari,Guwahati.
Sub: FIR.
Ref : CID P.S.G.D.Entry No.70 dated 10.8.2016.
Sir,
With reference to the above, I have the honour to state that on 10.8.2016 at 6 PM on the basis of the specific source information and as authorized by Deputy S.P. CID, Assam, Guwahati along with a team of CID officials searched the Go-down of GTC India (Pvt.) Ltd. located at Lokhra near Gopal Dham, Guwahati recovered and seized 12550 pet bottles of 100 ml each of C-COF syrup in 126 number of cartoons having batch no.UKF 1601, DCC 1602, DCC 1603 weight 10 ml codeine based in composition in each 100 ml bottles which be banned by the Govt. of India vide notification no.S.O.983 (E) Dated 10.3.2016 as the same are stocked for dispatching to Mizoram by the C & F of DWD Pharmaceuticals. Sample for duplicate has been drawn for FSL examination.
I therefore request your honour to register a case under the proper section of law against C & F and authority of DWD Pharmaceuticals and obliged.
Sd/ S.I. CID Dated 11.8.2016"9
15. By producing necessary certified copy of order and judgment pertaining to WP(C) 2348/16 and CM No. 10086/16 (it is batch of other writ petitions) it has been submitted that the parents company i.e. Coral Laboratory Ltd. has preferred WP(C)2348/16 (Coral Laboratory Ltd & another -vs- Union of India and anr.) before the Delhi High Court, challenging the aforesaid notification no. S.O.909(E) dated 10.3.2016 issued under the Drugs & Cosmetics Act, 1940 and vide order dated 17.3.2016 the Hon'ble Court has stayed the operation of said notification with further direction that no coercive step be taken in pursuance thereto against petitioner and its stockists, agents, retailers and distributors and the aforesaid writ petition along with batch of writ petitions were disposed of by order dated 1.12.2016, whereby all 344 notifications dated 10.3.2016 issued purportedly in exercise of power under Section 26 A of the Drugs Act are found to be issued without following due procedure statutorily prescribed to be followed prior to issuance thereof and resultantly, the said notifications are quashed. The copy of judgment reflects that the Hon'ble Court has arrived at the said decision after long drawn process of discussion about the scope and ambit of section 26 A Drugs Act and all other relevant rules by giving reference to all relevant aspects. The aforesaid order and judgment has also answered the challenge made by the Coral Laboratories Ltd. and ors and the aforesaid notification no. S.O.909(E) dated 10.3.2016 became inoperative. The notification that was issued under the Central Act having force all over the India. The petitioner herein is the Chairman of the DWD Pharmaceuticals who is the C & F of the Coral Industries are taking product of Coral laboratories and accordingly, the protection which has been granted to the parents company will also extend to the dealers, stockiest and C & F Agents etc as indicated in the order of the Court itself dated 17.3.2016 which was made absolute by the final verdict.
16. As against the submission of the State Respondents regarding the applicability of the order of Hon'ble Delhi High Court, by referring to the decision of the Hon'ble Apex Court (2008)14 SCC 283 Pradiip J Mehta -vs- Commissioner of Income Tax as well as 1988 Supp 1 SCC All India Reporter Karmachari Sang & ors -vs- All India Reporter Ltd. and ors. and (2004) 6 SCC 254 Kusum Ingots & Alloys Ltd. vs. Union of India it has been submitted by the learned counsel for the petitioner that the order passed by the Hon'ble Delhi High Court is applicable throughout the India including Assam.
1017. For better appreciation of the matter let us reproduced observation as held in 1988 (supra).
"Article 141 of the Constitution provides that the law declared by the S.C. shall be binding on all courts within the territory of India.Even apart from Article 141 of the Constitution the decision of the S.C. which is a Court of record, constitute a source of law as they are the judicial precedent of the Highest Court of the land. They are binding on all courts of India. Similarly the decision of every High Court being judicial precedents is binding on all Courts situated in the territory over which a High Court exercises its jurisdiction. Those decisions also carry persuasive value before Courts which are not situated within its territory. The decision of S.C. and all High Courts are almost as important as statues, rules and regulations passed by the competent legislature and are the bodies since they effect the public generally. It is well known that the decisions of superior courts while a settled dispute between the parties in the proceedings in which they are given are the source of law so far all others are concerned."
18. Strong reliance has been placed from the decision of the Hon'ble Apex Court in (2008) 14 SCC (supra) wherein it has been held judicial decorum, propriety and discipline required that a High Court should specially in the event of its contra view or dissent had discussed the aforesaid judgments of the different High Court and recorded its own reasons or its contra view. We quite see the fact that judgment given by a High Court is not binding on other High Court but all the same they have persuasive value. Another High Court would be within its rights to differ a view taken by the other High Court but in all fairness the High Court should record its dissent with reasons therefor. The judgment of other High Court though not bindings has persuasive value which should be taken note of and dissented from by recording its own reasons.
19. Further in (2004) 6 SCC (supra) while discussing about the challenge as to the validity of legislation/subordinate legislation, Situs of cause of action as to whether it confined to the place of seat of legislature enacting the legislation, it has been held that a writ court, it is well settled would not determine a constitutional question in a vacuum and in paragaraph 22 it has been held as follows:
11"22 The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject to the applicability of the Act."
20. As has been discussed above, the aforesaid relevant notification which is otherwise applicable to the case of the petitioner has been quashed and set aside by the judgment and order of Hon'ble Delhi High Court which I have also gone through and found no reason to dissent from the decision taken by the said Court. It will also be within the judicial propriety and discipline to go by the decision given by the another Court on the crucial issue. It may be mentioned here that the effect of said notification no. S.O.909(E) dated 10.3.2016 was stayed by the interim order dated 21.3.2016 in WP(C)2348/16 and the present FIR was filed as on 11.8.2016 and aforesaid writ petition was finally disposed of as on 1.12.2016 by quashing the aforesaid notification. Apparently the case has been registered during the period of stay order and in view of the final verdict of the Court as on 1.12.2016, further continuation of the criminal proceeding having regard to the said notification cannot be allowed to prevail.
21. For the reasons and discussions made above, it is found that continuance of the investigation with the aforesaid case will be nothing but abuse of process of law. In the result, the FIR pertaining to CID P.S.Case No. 28/16 stands quashed and set aside.
22. Petition stands disposed of.
JUDGE Nandi 12