Himachal Pradesh High Court

M/S Neptune Life Science (P) Ltd. And Ors vs Union Of India on 9 May, 2025

( 2025:HHC:13308 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No. 531 of 2024.

Reserved on : 03.04.2025 Date of Decision: 09.05.2025.


    M/s Neptune Life Science (P) Ltd. and Ors                                    ...Petitioners
                                            Versus

    Union of India                                                               ...Respondent

    Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioners : Mr. Chander Shekhar Thakur, Advocate.

For the Respondent/State. : Mr. Shashi Shirshoo, Central Government Standing Counsel.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

quashing of complaint No.05/2021 dated 18.08.2021, titled Union of

India Vs. M/s. Nepture Life Sciences & Ors. pending before the learned

Judicial Magistrate First Class, Nalagarh (learned Trial Court).

(Parties shall hereinafter be referred to in the same manner as they

were arrayed before the learned Trial Court for convenience.)

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2 ( 2025:HHC:13308 )

2. Briefly stated, the facts giving rise to the present

petition are that the complainant, Drug Inspector, filed a

complaint against the accused for the commission of offences

punishable under Section 18(a)(i) read with Section 16 punishable

under Section 27(d) of the Drugs & Cosmetics Act, 1940. It was

asserted that the Drug Inspector drew the sample of the

Permetherin Lotion and sent it to the Government analyst,

Regional Drugs Testing Laboratory, Chandigarh, for analysis after

completing the codal formalities. The Government Analyst issued a

report declaring that the sample was not of standard quality as it

did not conform to the claim as per patent and propriety in respect

of assay of Permetherin. The Drug Inspector issued the notices to

the manufacturer who recalled the drug from the market. The

manufacturer also replied that the control sample was tested in the

laboratory, and it was found to be of standard quality. One sealed

portion of the sample was submitted to the Court for sending it to

the Director, Central Drugs Laboratory, Kolkata, for analysis. The

Director, Central Drugs Laboratory, Kolkata, issued a test report

stating that the sample was not of standard quality because it did

not conform to the claim with respect to assay of Permetherin. The 3 ( 2025:HHC:13308 )

Drugs Inspector obtained permission and filed the complaint

before the Court.

3. Being aggrieved by the filing of the complaint, the

petitioners have filed the present petition for quashing it. It was

asserted that the sample was drawn on 19.05.2017 and was sent to

the Government Analyst, Chandigarh, on 31.05.2017 after the lapse

of 12 days. The copy of the memorandum in Form 1 and the

specimen impression of the seal were to be sent separately by

registered post. The Drugs Inspector did not say how the sample

was sent for analysis. There is a violation of Section 34 of the Drugs

& Cosmetics Act because it was not mentioned in what manner,

petitioners Nos. 2 and 3 were in charge and responsible for the

Company for its conduct. No gazette notification was issued for

appointing the Drugs Inspector for the specified area of Himachal

Pradesh. The complaint was filed after the expiry of the shelf life of

the drug. The valuable right of the petitioner was violated. There

was nothing in the complaint regarding the storage condition of

the drug. There was a variation in the report of the Government

Analyst and the Central Drugs Laboratory, which suggests that the

storage conditions were not proper. The sanction was not properly

granted. The summoning order is not proper. The preliminary 4 ( 2025:HHC:13308 )

inquiry was not conducted. The complaint was time-barred. There

were discrepancies in the investigation. The cognisance could not

have been taken by the learned Magistrate. Therefore, it was

prayed that the present petition be allowed and the complaint

pending before the learned Trial Court be quashed.

4. The petition is opposed by filing a reply making a

preliminary submission regarding the lack of maintainability. The

contents of the petition were denied on merit. It was asserted that

when the offences are committed by the Company, every person

who is responsible for the commission of the offence is liable to be

proceeded against and punished accordingly. The Company

provided the record mentioning the name of the Managing

Director and the Director. The complainant rightly proceeded

against them as per the law. The matter is pending before the

learned Trial Court, which has to apply its judicial mind to the

complaint. The complaint was filed as per the provisions of the

Drugs and Cosmetics Act. The sample was forwarded to the Central

Drugs Testing Laboratory, Kolkata, as per the order passed by the

learned Trial Court. The Central Government has the power to

appoint the Drugs Inspector for such areas as may be assigned to

them. The Central Government had appointed a Drugs Inspector in 5 ( 2025:HHC:13308 )

exercise of the power conferred under Section 21 of the Act. The

Drugs Inspector is engaged in multiple activities and could not file

the complaint within time. The sample was properly sent as per

Rule 57 of the Drugs & Cosmetics Rules, read with Section 23 of the

Drugs & Cosmetics Act, 1940. The petitioners had manufactured

substandard drugs. Learned Trial Court had rightly summoned the

petitioners after applying the judicial mind. The petitioners had

notified the Inspector within 28 days, and the Drugs Inspector filed

an application before the learned Trial Court for sending the

sample to the Central Drugs Laboratory, Kolkata, for retesting. The

variation in the report would be due to the improper mixing of the

ingredients during the manufacturing process. Form 17 & 17A were

prepared on the spot, which were signed by Mr. Sanjay. The

complaint was rightly filed before the learned Additional Chief

Judicial Magistrate. The report was issued on 31.12.2018. The period

w.e.f. 15.03.2020 to 28.02.2022 was excluded by the Hon'ble

Supreme Court while computing the limitation. Therefore, it was

prayed that the present petition be dismissed.

5. A rejoinder denying the contents of the reply and

affirming those of the petition was filed.

6 ( 2025:HHC:13308 )

6. I have heard Mr. Chander Shekhar Thakur, learned

counsel for the petitioners and Mr. Shashi Shirshoo, learned

Central Government Standing Counsel, for the respondent/UOI.

7. Mr. Chander Shekhar Thakur, learned counsel for the

petitioners, submitted that the learned Magistrate did not apply

her mind while summoning the petitioners and simply passed a

one-line order that notice be issued to the accused. There is a

violation of Sections 25, 34 & 23 of the Drugs & Cosmetics Act. The

sample was not properly stored, which is evident from the

discrepancies in the report of the Government Analyst, Chandigarh

and the Central Drugs Testing Laboratory, Kolkata. The Form 17

and the sample seal were not sent separately to the Government

Analyst. Hence, the report issued by the Government Analyst

cannot be relied upon. The Drugs Inspector himself applied to send

the second sample to the Central Drugs Testing Laboratory,

Kolkata, without any request from the petitioners. This is contrary

to the provisions of Section 25(4) of the Drugs & Cosmetics Act.

Hence, he prayed that the present petition be allowed and the

complaint pending before the learned Trial Court be quashed.

7 ( 2025:HHC:13308 )

8. Mr Shashi Shirshoo, learned Central Government

Standing Counsel for the respondent/UOI, submitted that the

sample was properly drawn and sent to the Government Analyst,

Chandigarh. The petitioners were arrayed as per the information

supplied to the Company. The drug was found to be substandard.

Therefore, he prayed that the present petition be dismissed.

9. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

10. The complaint was filed before the learned Trial Court,

and an order was passed on 31.08.2021 that the learned Additional

Chief Judicial Magistrate had relinquished the charge. Hence, an

office report was made on 07.09.2021. Learned Trial Court passed

the following order on 07.09.2021:-

"07.09.2021 Present:- RS Thakur, Advocate, for the complainant.

None for the accused.

Let the Accused be served for 08.12.2021."

11. It was laid down by the Hon'ble Supreme Court in JM

Laboratories v. State of A.P., 2025 SCC OnLine SC 208 that an order

issuing summons to the accused is a serious matter and the learned

Magistrate is required to apply his mind to conclude that there 8 ( 2025:HHC:13308 )

exists sufficient reasons for summoning the accused. It was

observed:

"8. In the judgment and order of even date 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 v. The State of Andhra Pradesh", we have observed thus:

"33. It could be seen from the aforesaid order that, except for recording the submissions of the complainant, no reasons are recorded for issuing the process against the accused persons.

34. In this respect, it will be relevant to refer to the following observations of this Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 (supra):

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence, both oral and documentary, in support thereof, and would that be sufficient for the complainant to succeed in bringing a charge home to the accused? It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before the summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit

9 ( 2025:HHC:13308 )

answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

35. This Court has held that summoning of an accused in a criminal case is a serious matter. It has been held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. This Court held that the Magistrate is required to examine the nature of allegations made in the complaint and the evidence, both oral and documentary, in support thereof and as to whether that would be sufficient for proceeding against the accused. It has been held that the Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning the accused.

36. The said law would be consistently following by this Court in a catena of judgments including in the cases of Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609, Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015) 12 SCC 420 and Krishna Lal Chawla v. State of Uttar Pradesh (2021) 5 SCC

435.

37. Recently, a Bench of this Court to which one of us (Gavai, J.) was a Member, in the case of Lalankumar Singh v. State of Maharashtra 2022 SCC OnLine SC 1383 (supra), has observed thus:

"38. The order of issuance of the process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt that the 10 ( 2025:HHC:13308 )

order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609, which reads thus:

"51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognisance of an offence, there is sufficient ground for proceeding. This section relates to the commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

52. A wide discretion has been given as to the grant or refusal of process, and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process, and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind, that there is sufficient

11 ( 2025:HHC:13308 )

basis for proceeding against the said accused, and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is a prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."

39. A similar view has been taken by this Court in the case of Ashoke Mal Bafna (supra).

40. In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as a matter of fact, it is clear from the order of the learned Single Judge of the High Court that there was no such order passed at all. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. We find that such an approach is unsustainable in law. The appeal, therefore, deserves to be allowed."

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 the criminal appeal arising out of SLP (Crl.) No. 2345 of 2024 titled "INOX Air Products Limited Now Known as INOX Air Products Private Limited 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. v. Special Judicial Magistrate (1998) 5 SCC 749:

1997 INSC 714, Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609: 2015 INSC 1, Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015) 12 SCC 420:

2015 INSC 983 and Krishna Lal Chawla v. State of Uttar Pradesh (2021) 5 SCC 435: 2021 INSC 160, the present appeal deserves to be allowed."

12 ( 2025:HHC:13308 )

12. In the present case also, the reasons have not been given

by the learned Trial Court, therefore, the order passed by the

learned Trial Court cannot be sustained.

13. This does not mean that the learned Magistrate was

required to write a detailed order; it was held by the Hon'ble

Supreme Court in Pramila Devi v. State of Jharkhand, 2025 SCC

OnLine SC 886, that a Magistrate is not supposed to write a detailed

order while summoning the accused. It is sufficient that there is an

indication that the Magistrate had applied his/her mind. It was

observed: -

16. In the present case, we find that the Additional Judicial Commissioner has taken cognisance while recording a finding that, from a perusal of the case diary and case record, a prima facie case was made out against the accused, including the Appellants. In Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, this Court held that an order of the Magistrate taking cognisance cannot be faulted only because it was not a reasoned order; relevant paragraphs being as under:

'14. Time and again, it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.

15. In Kanti Bhadra Shah v. State of W.B. [(2000) 1 SCC 722: 2000 SCC (Cri) 303], the following passage will be apposite in this context : (SCC p. 726, para 12) 13 ( 2025:HHC:13308 )

"12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such extra work? The time has come to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to the next stages in the trial."

(emphasis supplied)

16. In Nagawwa v. Veeranna Shivalingappa Konjalgi [(1976) 3 SCC 736: 1976 SCC (Cri) 507], this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter, and the discretion has to be judicially exercised by him. It was further held that: (SCC p. 741, para 5)

"5. ... Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused."

14 ( 2025:HHC:13308 )

17. In Chief Controller of Imports & Exports v. Roshanlal Agarwal [(2003) 4 SCC 139: 2003 SCC (Cri) 788], this Court, in para 9, held as under: (SCC pp. 145-46)

"9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. [(2000) 3 SCC 745] and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. [(2000) 1 SCC 722: 2000 SCC (Cri) 303] it was held as follows: (U.P. Pollution case [(2000) 3 SCC 745], SCC p. 749, para 6)

'6. The legislature has stressed the need to record reasons in certain situations, such as dismissal of a complaint without issuing a process. There is no such legal requirement imposed on a Magistrate for passing a detailed order while issuing a summons. The process issued to the accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order."

18. In U.P. Pollution Control Board v. Bhupendra Kumar Modi [(2009) 2 SCC 147: (2009) 1 SCC (Cri) 679], this Court, in para 23, held as under: (SCC p. 154)

"23. It is a settled legal position that at the stage of the issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same, and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused."

19. This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order.' 15 ( 2025:HHC:13308 )

(emphasis supplied)

17. The view in Bhushan Kumar (supra) was reiterated in Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 and State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539. This Court in Rakhi Mishra v. State of Bihar, (2017) 16 SCC 772 restated the settled proposition of law enunciated in Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424, as under:

'4. We have heard the learned counsel appearing for the parties. We are of the considered opinion that the High Court erred in allowing the application filed by Respondents 2, 4, 5, 6, 7, 8, 9 and 10 and quashing the criminal proceedings against them. A perusal of the FIR would clearly show that the appellant alleged cruelty against Respondents 2, 4, 5, 6, 7, 8, 9 and 10. This Court in Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424: (2015) 2 SCC (Cri) 265] held as follows: (SCC p. 429, para 8)

"8. ... At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognisance of the offence ... to find out whether a prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not."

5. The order passed by the trial court taking cognisance against R-2 and R-4 to R-9 is in conformity with the law laid down in the above judgment. It is settled law that the power under Section 482 CrPC is exercised by the High Court only in exceptional circumstances only when a prima facie case is not made out against the accused. The test applied by this Court for interference at the initial stage of a prosecution is whether the uncontroverted allegations prima facie establish a case.' (emphasis supplied) 16 ( 2025:HHC:13308 )

14. Therefore, the order passed by the learned Magistrate

summoning the accused cannot be sustained, and the matter has to

be remitted to the learned Trial Court for passing an appropriate

order regarding the summoning of the accused. Since, the matter is

being remitted to the learned Trial Court, therefore, it is not

necessary to record any finding on the other pleas taken by the

petitioners because it would prejudge the issue and influence of

learned Magistrate while applying the mind to determine whether

an order has to be passed for summoning the accused or not.

15. In view of the above, the present petition is allowed, and

the summoning order dated 07.09.2021 passed by the learned

Magistrate is ordered to be set aside. The matter is remitted to the

learned Trial Court with the direction to pass a fresh summoning

order as per the law.

16. The observation made hereinabove shall be confined to

the disposal of the petition and will have no bearing whatsoever on

the merits of the case.