Ram Dhani Yadav vs State Of U.P.
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Allahabad High Court

Ram Dhani Yadav vs State Of U.P. on 23 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:88060
 
Court No. - 73
 

 
Case :- APPLICATION U/S 528 BNSS No. - 13321 of 2025
 

 
Applicant :- Ram Dhani Yadav
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Janardan Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. On the oral request of learned counsel for the applicant is that he is permitted to make Drug Inspector Mau, District Mau as opposite party no.2 during the course of the day.

2. Heard Sri Janardan Yadav, learned counsel for the applicant as well as Sri B.S. Kushwaha, learned AGA for the State/opposite party no.1.

3. This Court on 29.4.2025 granted opportunity to the learned AGA to seek instructions. Today, instructions have been produced before the Court dated 20.5.2025 under the signatures of the then Drug Inspector, District Mau, presently District Azamgarh and a statement has been made by learned AGA the application be decided on the basis of documents available on record.

4. This application under Section 528 of the BNSS has been filed by the applicant to quash the Summoning order dated 20.2.2024 passed by Additional District and Sessions Judge, Court No.01/Special Judge (Drugs & Cosmetics Act) Mau as well as entire proceeding of Complaint Case No.24 of 2024 (State of U.P. Vs. Ram Dhani Yadav), U/S 18/27 Drugs & Cosmetics Act, P.S. Mohammadabad, District Mau pending in the court of Additional District and Sessions Judge, Court No.01/Special Judge (Drugs & Cosmetics Act) Mau.

5. The case of the applicant is that a first information report was lodged by the opposite party no.2 under Section 18 read with Section 27 of the Drugs & Cosmetics Act on 23.1.2018 at 11.15 hours before Police Station Mohammadabad, District Mau with an allegation when an inspection was conducted in the premises of the applicant wherein it was found that they were violations of Section 18 read with Section 27 of the Drugs & Cosmetics Act.

6. The applicant herein challenge the first information report by way of filing Criminal Misc. Writ Petition No.2849 of 2018,Ram Dhani Yadav vs. State of U.P. and 2 others in which on 7.2.2028 the following order was passed:-

"Heard learned counsel for the petitioner and learned A.G.A. for the State.

It is submitted by learned counsel for the petitioner that Section 32 of the Drugs and Cosmetics Act, 1940 mandates that a person can be prosecuted for an offence under Chapter IV only on the basis of a complaint duly instituted either by an Inspector or by any person or a recognized consumer association. He next submitted that the prosecution of the petitioner pursuant to the impugned F.I.R. is clearly barred.

The submission made by learned counsel for the petitioner, prima facie, appears to have some substance. The matter requires consideration.

Learned AGA has accepted notice on behalf of respondents no.1 and 2. He prays for and is allowed four weeks' time to file counter affidavit.

Issue notice to respondent no.3 who may file his counter affidavit within the same period.

Rejoinder affidavit, if any, may be filed within two weeks thereafter.

List thereafter before appropriate Bench.

Until further orders of this Court, further proceedings pursuant to impugned F.I.R. dated 23.1.2018 registered as Case Crime no. 0025 of 2018, under Sections 18/27 Drugs and Cosmetics Act, 1940 I.P.C, P.S. Mohammadabad, district-Mau shall remain stayed. This order, however, shall not preclude the authorized Officer to institute a complaint against the petitioner."

7. Thereafter the said application came to be disposed of on 17.5.2018 order whereof is being quoted herein under:-

"Heard Sri Janardan Yadav, learned counsel for the petitioner and Sri Vikas Sahai, learned A.G.A. for the State and perused the record.

This writ petition has been filed with a prayer to quash the F.I.R. dated 23.1.2018 registered as Case Crime No. 0025 of 2018, under Section 18/27 Drugs & Cosmetics Act, 1940, P.S. Mohammadabad, District Mau.

It is submitted by learned counsel for the petitioner that Section 32 of the Drugs and Cosmetics Act, 1940 mandates that a person can be prosecuted for an offence under Chapter IV only on the basis of a complaint duly instituted either by an Inspector or by any person or a recognized consumer association. He next submitted that the prosecution of the petitioner pursuant to the impugned F.I.R. is clearly barred.

Learned A.G.A. could not dispute the proposition of law and he has not filed any counter affidavit.

In view of above, impugned FIR is quashed and the writ petition is allowed with the liberty to respondent no. 3 to file a complaint, if so required under the Durgs and Cosmetics Act, 1940 in the present matter."

8. Subsequently, a complaint came to be filed by the opposite party no.2 on 5.3.2019, under Section 18/27 Drugs & Cosmetics Act pursuant whereto the applicant has been summoned on 20.2.2024 by the court of Additional District and Sessions Judge, Court No.01/Special Judge (Drugs & Cosmetics Act) Mau in Complaint Case No. 24 of 2024.

9. Questioning the summoning the present application has been filed.

10. Learned counsel for the applicant has submitted that though there are various grounds of questioning the entire complaint inclusive of the summoning order being barred by time and the applicant has not committed the offences under Section 18 read with Section 27 of the Drugs & Cosmetics Act but the core and the fundamental issue which goes to the root of the matter the summoning order is non-speaking unreasoned and even it does not recite the case of the complainant and has been passed by total non-application of mind. Prayer is for setting aside the summoning order.

11. Reliance has been placed upon the decision of the Hon'ble Apex Court in SLP (Criminal) No.5067 of 2024, M/S J.M. Laboratories Vs. State of Andhra Pradesh decided on 30.1.2025.

12. Learned AGA on the other hand submits that though from the narration of the allegations and the assertions contained in the complaint prima facie offences have been committed by the applicant, however, since the summoning order has not been passed as per the mandate of the Hon'ble Apex Court in above noted decision, the summoning order be set aside, matter be remitted back to the court below to pass a fresh order.

13. I have heard the submissions so made across the bar and perused the record. The summoning order dated 20.2.2024 passed by the Additional District and Sessions Judge, Court No.01/Special Judge (Drugs & Cosmetics Act) Mau in Complaint Case No.24 of 2024 is quoted herein under:-

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?????? 24/2024

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??????- 20.02.24

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14. A perusal of the summoning order would go to the show the same has been passed without reciting the case of the complainant less to say about the offences under which the applicant has been summoned and the same probably has been passed as a matter of routine. In JM Laboratories (supra), the issue akin to which has been raised by the learned counsel for the applicant for consideration and the following was observed:-

"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."

15. Analysing the case of the four corners of law and irresistible conclusion stands drawn that the summoning order does not test the sanctity of law and thus the summoning order cannot be sustained and is liable to be set aside. The present application is being decided in the following term (a) summoning order dated 20.2.2024 passed by the Additional District and Sessions Judge, Court No.01/Special Judge (Drugs & Cosmetics Act) Mau in Complaint Case No.24 of 2024, State Vs. Ram Dhani Yadav summoning the applicant under Section 18 read with Section 27 of the Drugs & Cosmetics Act is set aside (b) the matter stands remitted back to the court below to pass a fresh order strictly in accordance with law as laid down in Hon'ble Apex Court in JM Laboratories (supra), (c) for facilitation, learned AGA to submit the certified copy of the order before Court below for due compliance.

16. With the aforesaid observation, the application stands disposed of.

17. Instructions filed today is taken on record and marked as Appendix 'A'.

Order Date :- 23.5.2025

piyush