Allahabad High Court
M/S Rivpra Formulation Pvt Ltd And 6 ... vs State Of U.P. And Another on 12 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:136916
Court No. - 75
Case :- APPLICATION U/S 528 BNSS No. - 25410 of 2025
Applicant :- M/S Rivpra Formulation Pvt Ltd And 6 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Akhilesh Chandra Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
1. Heard Shri Akhilesh Chandra Shukla, learned counsel for the applicant and Sri S.K. Singh, learned AGA for the State.
2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.
3. This application under Section 528 BNSS has been filed by the applicant to quash the summoning Order dated 12.10.2023 passed by Chief Judicial Magistrate, Varanasi, in Complaint case No.111135 of 2023, under Section 18/27 of Drugs and Cosmetic Act 1940, P.S. Ramnagar, District Varanasi.
4. The case of the applicant is that a complaint stood lodged by the opposite party No. 2, Drug Inspector Varanasi on 12.10.2023 under Sections 17A(f), 18(a)(i)/ 27(d) of the Drugs and Cosmetic Act 1940 against the applicants with an allegation that on 20.02.2023, an inspection was conducted in the premises of M/s Varanasi Drug Ware House and the samples were drawn and Form 17A was prepared and Form 18 on the spot and the signature of one Pradeep Kumar Singh on Form 17A was obtained. The sample of Amoxycilin and Potassium Clavulante was taken and its manufacturing date was 12/2021 and the expiry date was made 05/2023. The sample was sent to Government Anaylst Lucknow for testing and the report was obtained on 21.03.2023 with the remark "The sample does not conform to IP, in respect of content of Clavulanic Acid". It is further alleged that the complainant has sent notice to M/s Varanasi Drug Ware House on 03.04.2023 annexing copy of the government analyst report dated 21.03.2023 while requiring it to stop the distribution of drugs and also direct them to recall all these drugs. That, in its reply, M/s Varanasi Drug Ware House through its letter dated 11.04.2023 that they had purchased the drugs through U.P. Medical Supplier Corporation from its manufacturer firm M/s. Rivpra Formulation Pvt. Ltd., appellant no. 1. Further submission is that the complainant issued a show cause notice on 15.04.2023 to the applicant-firm and annexing Government Analyst report dated 21.03.2023 and the sample taken from M/s. Varanasi Drug Ware House with other documents. The notice also contained a direction to stop the selling of the drug and recall those drugs which sent to market. Further allegation is that since the date of expiry of the drugs was made on May, 2023, therefore, the complainant had directed the applicant no. 1 through letter dated 26.04.2023 and 11.05.2023 to send DD of Rs.1000/- so that the sample may be sent for retesting to Central Drug Laboratory, Kolkata and the applicant- firm did not respond to the said letter and the complainant himself made a payment of Rs.1000/- through demand draft and send the sample for restesting through order of CJM dated 23.05.2022. It is alleged that the applicant no. 1 has sent its letter to the complainant annexing a demand draft of Rs.1000/- asking to send the sample for retesting to Central Drug Laboratory. Thereafter on 12.05.2023 even before completion of 28 days from the date of sending notice under Section 25 of the Act, the permission to file complaint and thereafter the Central Drug Laboratory vide its report dated 07.06.2023 declared the sample not as per the standard quality. Thereafter the complaint stood preferred on 12.10.2023 and the applicants came to be summoned by virtue of the order dated 12.10.2023 passed by the Chief Judicial Magistrate, Varanasi, under Sections 17A(f), 18(a)(i)/ 27(d) of the Drugs and Cosmetic Act 1940.
5. Questioning the said order, the applicant has been filed the present application.
6. Learned counsel for the applicant submits that the summoning order cannot be sustained for the simple reason that it has been passed in a mechanical manner without reciting the case of the complainant without recording any prima facie recording with regard to the applicability/ attraction of the penal sections. He seeks to rely upon the the judgement in SLP (Criminal) No.5067 of 2024, M/S J.M. Laboratories Vs. State of Andhra Pradesh decided on 30.1.2025. However, he submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.
7. Learned AGA on the other hand submits that form the perusal of the allegations contained in the complaint prima facie offences are made out and the case is triable, however, he could not dispute the fact that the summoning order has not been passed as per the mandate in M/S J.M. Laboratories (supra). He submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.
8. I have heard learned counsel for the parties and gone through the records carefully.
9. The summoning order dated 12.10.2023 summoning the applicant under Section 18/27 Drug and Cosmetics Act 1940 reads as under:
"?????? ???? ?? ?????????? ??? ???? ????? ???????? ?????? ?????????? ???? ?????? ??????? ?????????? ???????? ????? ??? 8 ?????? 6? ????? ???????? ?????????? ??? ????? ??????? ????? ??????? ????????? ??? ???? ???? ?????? ????? ????? ?? ? ???? ????? ?????? ?? ??????? ????? ???????? ???? 18/27 ???? ??? ??????? ??????? ??????? 1940 ?? ??? ?????? ??????? ???? ??? ??? ???? ???????? ??????? ?????? ???? ?? ????????? (?? ?????????) ????? ??? ???? ?? ???? ?????? ??? ???????? ??? ???? ?? ??. ?????? ????????? ???? ?????????? 3 ??? ??????? ??????? ?? ???? ?????? ?? ??????? ?? ?? ???? ???
???? ??? ?????? ???? ?? ?????? ????? ?????????? ?? ??????? ?????????? ???? ???? ?? ???? ????????? ??? ????? ?????? ?? ??? ??? ???? ???? ???? ?????????? ?? ??? ???? ???? ?????????? ???
????
????? ?????? ?? ??? ??? ??????? ?? ?????????? ???? ?????? ??????? ?????????? ???????? ????? ??? 8 ?????? 6? ????? ???????? ?????????? ??? ????? ???????, ????? ???????, ????????? ??? ???? ???? ?????? ????? ????? ?? ? ???? ????? ?????? ?? ??????? ???? 18/27 ???????? ???? ??? ??????? ??????? ??????? 1940 ?? ??? ?????????? ???? ???? ??? ?????????? ??????? ??? ?????? ???? ????? ??? ??? ?? ???????? ?????? ?????? ?????? 16.11.2023 ?? ??? ???"
10. A perusal of the summoning order would reveal that the summoning order is non-speaking and unreasoned and it does not even recite the case of the complainant less to say prima facie application of the penal sections.
11. The Hon'ble Apex Court in the case of JM Laboratories (supra), 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."
12. Since the summoning order itself is non-speaking and unreasoned and cryptic in nature, thus, it cannot be sustained.
13. The summoning order dated 12.10.2023 passed by Chief Judicial Magistrate, Varanasi, in Complaint Case No.111135 of 2023 is set aside.
14. The matter stands remitted back to pass fresh order strictly in accordance with law.
15. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 04.09.2025 and the court below shall proceed to decide the said proceeding with most expedition.
16. Needless to point out that the Court has not adjudicated upon the merits of the case.
17. Accordingly, the application stands disposed of.
18. Instructions filed today is taken on record and marked as Appendix 'A'.
Order Date :- 12.8.2025
A. Prajapati
