M/S Narain Dass Bhagwan Dass vs State Of J&K
2022 Latest Caselaw 32 j&K

 HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                  AT JAMMU

                                                 Reserved on 17.11.2021
                                                 Pronounced on 31.01.2022


                                               CRMC No. 325/2011 (O&M)


M/s Narain Dass Bhagwan Dass                    .....Appellant(s)/Petitioner(s)
and another


                       Through: Mr. Amrish Kapoor, Advocate
                  vs
State of J&K                                              ..... Respondent(s)
                       Through: Mr. H. A. Siddiqui, Sr. AAG

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                    ORDER

1. The present petition has been filed by the petitioners for quashing the

complaint filed by the respondent, titled, "State versus M/s. Narayan

Das Bhagwan Dass and others" pending before the court of learned

Sub Judge (Special Municipal Magistrate) Jammu, on the following

grounds:

(a) That there is no allegation in the complaint against the present

petitioners that can even remotely suggest that the petitioners

have committed any offence under the Drugs and Cosmetics Act

1940 (for short the Act).

(b) That in the present complaint there is no allegation in the

complaint which would bring the case within the mischief of

section 34 (2) of the Act.

(c) That the sale of the drugs has been made by the Medical Officer

Government Gandhi Nagar Hospital but the respondent No.1 did

not choose to file the complaint against the main accused so in

absence of the main accused, it cannot be said that the petitioner

has contravened the provisions of the Act.

(d) That the present complaint deserves to be quashed as the

petitioner No.1 has been arrayed as one of the accused but

through no body and in the absence of person through whom the

firm is to be served, the complaint is not maintainable.

(e) That for the last about 12 years the case is being dragged due to

the fault of the prosecution and the petitioners are suffering

mental, financial and physical strain due to the pendency of the

case.

2. The brief facts necessary for disposal of the present petition are that

the Drug Inspector lifted sample of Prchloroperazine tablets I.P. 5

mg, manufactured by M/S Associated Pharma, 8/29 Kirti Nagar

Industrial Area, New Delhi from the stores of Government Hospital

Gandhi Nagar along with other drug samples on 23.10.1998. The

sample was divided into 4 portions of 50 tablets each and sealed in

presence of Medical Officer In-charge Government Hospital Gandhi

Nagar. As provided under the Act, one portion of the sample was

sent to Government Analyst CFDL, Jammu vide letter dated

24.10.1998 for analyses, who vide its report dated 28.10.1999

declared the drug in question to be not of standard quality due to the

reasons that the sample failed in description, uniformity of rates of

tablets and contents of Prchloroperazine tablet. Thereafter, Medical

Superintendent Government Hospital Gandhi Nagar vide its letter

dated 12.11.1999 stated that the drug has been purchased from M/S

Narayan Das Bhagwan Das, wholesale Druggist behind State Bank

of India, Bhagirath Palace Chandni Chowk Delhi i.e. the petitioner

No. 1 herein, vide invoice dated 23.10.1997. The petitioner No. 1

herein vide letter dated 22.11.1999 submitted that they had

purchased the drug from M/s. Medicine Traders Pharmaceutical

Distributor Bhagirath Palace Chandni Chowk Delhi vide invoice

dated 18.10.1997 and from M/s. Associated Pharma, Bhagirath

Palace Chandni Chowk Delhi vide invoice dated 08.03.1997. After

the completion of requisite formalities, Deputy Controller Drugs and

Food, Jammu conveyed the approval of the Controlling Authority for

launching prosecution against the parties concerned and accordingly

the complaint was filed against all accused including the petitioner

No. 1. The said complaint was filed on 10.02.2000 and the learned

trial Court vide order dated 24.02.00 issued the process against the

accused including the petitioner No. 1 herein.

3. Mr. Amrish Kapoor, learned counsel appearing for the petitioners

has vehemently argued that there is violation of section 34 (2) of the

Act, as such, the proceedings are required to be quashed. He further

submitted that petitioner No. 1 has not been arrayed as accused

through someone and further that the petitioners are facing rial for

the last 12 years and still some of the accused have not been served

till date. He laid much stress that the main accused from whom the

sample was lifted, has not been arrayed as an accused, as such, the

proceedings are required to be quashed.

4. Per contra, Mr. H. A. Siddiqui has vehemently argued that section

34 of the Act has no applicability in the instant case and further

merely on account of delay, the proceedings cannot be quashed. He

also argued that the mere non-arraying of the person as an accused

from whom the sample was lifted, cannot result in quashing of the

criminal proceedings against the petitioners.

5. Heard and perused the record.

6. From the record, it is evident that the drugs have been supplied by

the petitioner No. 1 to the Government Hospital Gandhi Nagar

Jammu. The petitioner No. 1 appeared through Mr. Tarun Kumar

Kochar on 03.03.2004 before the trial court and submitted the bail

bonds. The first contention of the petitioner is that there is violation

of the section 34 (2) of the Act. Section 34 of the Act deals with the

offences by the companies and it provides that where an offence

under the Act has been committed by a company, every person who,

at the time the offence was committed, was in-charge and was

responsible to the company for the conduct of the business of the

company, as well as the company shall be deemed to be guilty of the

offence and shall be liable to be proceeded against and punished

accordingly. Thus, the prosecution can be launched against the

company, if the offender is the company and at the same time, any

person, who at the time the offence was committed was in-charge of

and was responsible to the company for the conduct of the business

of the company, can also be simultaneously proceeded against. In the

instant case, no partner of the petitioner No. 1 has been arrayed as an

accused and this Court does not find that section 34 (2) of the Act

has any application, as such, this contention is rejected. The

judgments relied upon by the learned counsel for the petitioners

reported in 2007AIR SCW 656 and 1992 AIR(SC) 1168 are not

applicable in facts and circumstances of the present case.

7. The second contention of the petitioners is that petitioner No. 1 has

not been arrayed as an accused through someone to represent the

partnership concern. The explanation appended to section 34 of the

Act provides that for the purposes of this section, company means a

body corporate and includes a firm or other association of

individuals. As already observed, the company can be proceeded

alone or along with any other person, who at the time was In-charge

of and responsible to the business of the company. The petitioner No.

2 i.e. Tarun Kumar Kochar has been representing the petitioner No. 1

ever since 03.03.2004, as such, this contention too becomes

irrelevant.

8. The third contention raised by the petitioner is that the person from

whom the sample was lifted was not arrayed as an accused is also

without any substance, as merely not arraying the said person as an

accused, cannot result in the quashing of the proceedings against the

other accused, particularly when the requisite information with

regard to the purchase of the drugs from petitioner No. 1 was

disclosed by the Medical Superintendent Government Hospital

Gandhi Nagar. Also, there is no allegation in the complaint that the

drugs were supplied in the Government Hospital with connivance of

the person from whom the sample was lifted.

9. The last contention of the petitioner is with regard to the delay in the

conclusion of the criminal proceedings. There appears to be some

justification in the said contention as perusal of the record of the trial

court reveals that Mr. S. K. Jain, who was representing the accused

No. 5 expired on 11.11.2006 and ever since then the complaint had

been pending for the service of accused No. 5 for want of fresh

particulars till 02.02.2012 and despite grant of last opportunity by the

trial court to furnish the fresh particulars of accused No. 5, the

respondent No. 1 has done nothing. In the meanwhile, the record of

the complaint was summoned from the trial court and perhaps

because of summoning of the record, no proceedings could be

conducted before the trial court. The allegations are serious in nature

and are concerned with the safety and health of the common people,

as such, the proceedings cannot be quashed merely on account of

delay. But in view of the fact that the respondent No. 1 has not been

able to furnish the fresh particulars of the accused No. 5, this Court

deems it proper to dispose of the present petition with direction to the

learned trial court to conclude the trial within the period of 6 months

from the date of receipt of order of this Court and further it shall be

the responsibility of the respondent No. 1 to ensure that the accused

No. 5 is served and in the event, the respondent No. 1 fails to do so,

the trial court shall be at liberty to proceed in accordance with law

and conclude the trial within the period mentioned above.

10. Record, if summoned in original, be sent back forthwith.

11. Disposed of.

(Rajnesh Oswal) Judge JAMMU 31.01.2022 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No