Reserved On: 22.05.2023 vs State Through Drug Inspector ...
2023 Latest Caselaw 1313 j&K/2

      THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR

                            CRM(M) no. 174/2014
                           IA no. 01/2014 [383/2014]

                                                            Reserved on: 22.05.2023
                                                       Pronounced on: 13.10.2023
Sageer Bakash Qadri and another
                                                  ...Appellant(s)/Petitioner(s)
Through:   Mr. Z. A. Qureshi, Sr. Advocate with
           Ms. Rehana, Advocate
                                      Vs.

State through Drug Inspector Zone-V.

                                                   ...Respondent(s)
Through:   Mr. Satinder Singh, AAG

CORAM:
   HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                  JUDGMENT

1. Petitioners are aggrieved of the Order dated 09.04.2014 passed by

learned Sessions Judge under TADA/POTA (Designated Court under

Drugs and Cosmetics Act 1940) (hereinafter referred to as "Trial

Court") in a complaint titled as State through Drug Inspector, Zone -

III Srinagar Vs. Sanjay Ahuja and others, in which the Trial Court has

taken cognizance and issued process against the accused. The Trial

Court order is being challenged on the following grounds:

i) The complaint has been filed by the State through Drug Inspector Zone-III, Srinagar, under Section 17-B (e), 18(A) and 18 (B) read with Sections 27(c), 28 and 28(A) of Drugs and Cosmetics Act, 1940 (for short "the Act") and Rules made thereunder, as such, the order dated 09.04.2014 is to be quashed particularly when petitioners are neither manufacturers nor have, they manufactured the items seized nor have they supplied it to the

CRM(M) no. 174/2014 Institution purporting that the product is theirs. In view of the complaint, petitioners have never been asked to disclose the name of the manufacturer nor they are the custodians of the record. In fact, they have not been questioned at all which is clear from the contents of complaint, still they have been arrayed as accused and that too without there being roping of offences.

ii) Under Section 27(c), the punishment is provided for using of Spurious Drugs and in view of the complaint, involvement of the accused No.1, who has supplied the item (Bandage) to the Institution and received the payments which is made out and by no stretch of imagination the petitioners can be said to have committed the offence, still the court has issued the process against them by holding that they have committed the offence, as such, the order dated 09.04.2014 is bad in law and liable to be set aside. Section 28 of the Act provides penalty for non-disclosure of the name of the manufacturer etc. whereas Section 28-A says for not keeping the document.

iii) Nowhere in the complaint, the complainant has mentioned that he enquired from the petitioners as to who had manufactured the seized items nor were petitioners the custodians of the record. They did not keep the record or did not disclose the information with regard to items seized as provided under Section 18-B. In absence of any such statement in the complaint, no offence is made out, as alleged, against the accused persons. Furthermore, the complaint does not rope any of the petitioners for the offences along with the rest of the accused persons, namely, Sanjay Ahuja and Syed Ahmad, therefore, the cognizance so taken against the petitioners by the trial court is void ab-initio.

iv) Section 32 of the Act provides that no prosecution under this Chapter shall be initiated except by Inspector or by person or by a recognized consumer association, whether such person is a member of that association or not. Section 32 of the Act, itself is not an offence, as mentioned by the complainant in Para 18 of the complaint which reveals that the trial court has not applied its

CRM(M) no. 174/2014 mind to the facts of the complaint and issued the process in a routine manner.

v) Section 17-B of the Act defines spurious drug does not bring within its ambit any sample, which fails, in weight in grams. There is nothing in the schedule which provides that the bandage should be of standard quality if it weighs so much nor it is provided by the expert-drug analyst as to what should have been the weight and how much the items was found less in the weight. In absence of this, the item, which was seized from the Institute of Medical Sciences, Soura, Srinagar, cannot be termed as spurious drug and no complaint, as such, can be maintained.

vi) Under the Guidelines as per the Enhanced Penalties under the Drug and Cosmetic (Amendment) Act 2008 of Category "C" for formulation failing in weight variation as declared to be the minor defect and has to be ignored. The guideline Category "C" which deals with minor defects read as under:

           i.      Broken or crippled tables
           ii.     Presence of spot/discoloration/ uneven coating
           iii.    Cracking of emulsion
           iv.     Clear liquid preparations showing sedimentation
           v.      Change in colour of the formulation
           vi.     Slight variation in net content
           vii.    Formulation failing in weight variation

viii. Formulation failing to respond to the colour test ix. Isolated cases presences foreign matter x. Labeling error including nomenclature mistake, Rx NRx, Red Line, Schedule H, Caution, Colour etc.

iv) No prosecution is to be launched; only if it is felt that the measures of compounding the suspension and cancellation will not meet the ends of justice. In the present case, the report of the government analyst is that the sample is not of the standard quality because it fails in weight in grams. In absence of the report that how much weight should have been as per the standard and what was the weight recorded by the analyst, and secondly, even if it is believed that the item was not upto standard, such omission will not fall under Section 17-B of Drug and Cosmetic Act, 1940, no prosecution can be initiated against the petitioners.

CRM(M) no. 174/2014

v) Under Section 32 of the Act, the Court is empowered to take cognizance under Chapter IV, which deals with Manufacturer, sale and distribution of drugs and cosmetic only when a complaint is instituted by the Inspector and other persons mentioned therein.

vi) The complaint is filed by the State, which is not empowered to do so under Section 32 of the Act. Furthermore, even neither statement of complainant nor statement of witnesses has been recorded. A complaint under Drug and Cosmetics Act, in fact, is a complaint not cognizable by police, therefore, the State cannot be complainant in this case as provided under Section 32 of the Act. Before issuing process, the Magistrate has to record statement of complainant in support of the complaint and witnesses and thereafter has to satisfy himself as to whether cognizance can be taken in view of contents of complaint. According to petitioners, a novel procedure had been adopted by a Magistrate as he has dispensed statement of complainant and witnesses by holding that complaint has been filed by the State, so there is no need to record statement of complainant and witnesses when in fact under law it is not correct. Under Section 32 of the Act the Court can take a cognizance and issue process when the complaint is filed by the Inspector appointed for the said area as defined under section 22 of the Act, therefore, entertaining a complaint and passing order on 09.04.2014 is illegal, non est in the eye of law.

vii) Under Section 22 of the Act, powers of Inspector are defined under the Act. Under Section 23 of the Act Inspector has to adopt a procedure while taking the sample. Under Section 23(1) of the Act, he has to pay for the sample and also under Section 23(3) of the Act, he has to intimate in writing to the person from whom he takes the sample in presence of some other person(s) and shall thereafter divide the sample in four portions and effectively seal and suitably mark the same and permit the said person to add his own seal and mark to all or any of the portion so sealed or

CRM(M) no. 174/2014 marked. After this procedure is completed, one portion of the sample is to be given to the person from whom it is taken and out of three, one portion has to be sent to the Government Analyst, the second portion to be produced before the court at the time of institution of the complaint and third to be sent to the e person whose name, address and other particulars have been disclosed under section 18A of the Act. This procedure has not been followed at all by the Inspector as is evident from the complaint itself, as he has failed to proceed, no complaint is maintainable. It has been held by the Hon'ble High Courts in AIR 1958 Allahabad 865 and AIR 1973 M.P 255 that where the procedure mentioned in Section 23 of the Act is not followed in a case, the report of the Government Analyst cannot be treated as conclusive evidence. In view of this legal position and in absence of report of Government Analyst which cannot be relied upon no offence is made out against the petitioners, therefore, the complaint has to be dismissed by quashing the order dated 09.04.2014 passed by the Designated Court.

viii) As per the complaint the sample was taken on 02.08.2012, but the sample was not sent on the same day but was withheld for months together and finally the report was sent on 13.12.2012. No explanation has been given by the complainant as to why the sample was not send on that very day and as to why it was kept. This is procedural lapse, which shakes the complaint itself. This contention is supported by Rules 56 and 57 the Rules.

ix) Drug Inspector is required, after tendering fair price, to take the sample and inform the vendor that the sample is being taken for analysis and intimation to this effect is required to be given in terms of Form-17. The respondent, as submitted above, has issued Form-17 on 13.12.2012 when the respondent had already purchased the drug on 02.08.2012 and, therefore, no intention was expressed by the respondent to purchase the drug for purposes of analysis on 13.12.2012, when the drug stood already purchased on 02.08. 2012. The procedure so followed violates

CRM(M) no. 174/2014 the previously mentioned provision. The position is made worst by vital omission from the complainant as to the place where the drug was kept for this period.

x) In the complaint, respondent has not shown as to what procedure was followed by him at the time of purchase and sampling of the drug. The complaint does not mention all the factual ingredients of substantive offence. The complainant omitted from the complaint vital facts, required by law to be stated for purposes of prosecution. The complaint is silent. The lacuna of filing a cryptic complaint is fatal to the case and the law does not envisage that vital facts can be provided later. Nothing has been mentioned by the complainant as to how the sample was taken, quantity of sample, which was taken, and how the sample was divided into various portions.

2. Heard learned counsel for the parties and perused the record on the file.

3. Briefly stating, the facts of the case as projected by respondent-State

are that complainant is working as Drug Inspector, Zone-V, Srinagar,

in the Department of Drug and Food Control Organization, J&K, and

is a public servant within meaning of Section 21 of Indian Penal Code.

Besides this, complainant is authorized under Section 22 of the Act, to

deal with the matters under SRO 137 dated 28.03.2013. The

complainant lifted sample of drug, namely, Standard Handloom rolled

Bandage (Non-Sterilized), Batch No: 035, Date of manufacture: Jan

2012, Date of Expiry: 3 years from Mfg date, from the Drug Store of

SKIMS MCH Bemina Srinagar on 19.05.2012. After fulfilling all the

formalities, Form-17 and Form 17-A were prepared on spot on

19.05.2012. The sample was sent to Drug Testing Laboratory, Dalgate,

Srinagar, for test/analysis vide Memo No.DFO/ DI /Sgr-V/K/02/12

dared 19.05.2012 and in this regard Form-18 was prepared. The Analyst

CRM(M) no. 174/2014 of Drug Testing Laboratory after testing the sample, declared the same

to be NOT OF STANDARD QUALITY. The said sample fails in the

tests Threads/dm, Weight in g/m, Length and Width, as reported vide

No.L/DA/2012-13/349 dared 30.07.2012.

The matter was taken up with the Incharge Pharmacy SKIMS,

MCH Bemina, vide letter dated 01.08.2012, so that all information

regarding bills of purchased items of suppliers as well as stock in hand

was furnished. Incharge Pharmacy concerned in his written statement

stated that M/s Aroma Surgical House Delhi Road Model Town Rohtak

- 124001 had supplied drug to Drug Store of SKIMS, MCH Bemina.

Thereafter, remaining stock of said sample was seized by complainant

from Drug Store of SKIMS, MCH Bemina, Srinagar, and Form-16 was

prepared on spot and permission for retaining said drugs under safe

custody was also sought by complainant from the Trial Court. The

matter was taken up with M/s Aroma Surgical House vide letter dated

01.09.2012 but no reply was received from their side. Subsequently two

reminders were dispatched to the firm on 16.11.2012 and 02.03.2013,

but again no reply was received. After failure in responding to the

reminders, the matter was taken up with M/s Standard Surgical

Dressings Company, who as per label, is the manufacturer of the said

drug and the original copy of test report along with sample portion was

sent to the said Manufacturer Company and the manufacturer company

very cleverly vide his reply dated l2.10.2012 has denied to have

supplied such drug bearing Batch No.035 to M/s Aroma Surgical House

Delhi Road Mode1 Town Rohtak-124001 and denied to have any

record/stock of batch No.035. Respondent-State has also averred that

CRM(M) no. 174/2014 the purported manufacturer disowned the said product, so complainant

was directed by controlling authority vide letter no.DFO/DT/1192/

9751-56 dated 03.12.2013 to carry out spot investigation into the

matter. On 07.12.2013, a team of officers of Department including

Drug Inspector, Zone III Srinagar, and Drug Control Officer, Rohtak

Haryana, visited the premises of M/s Aroma Surgical House, Rohtak,

Haryana, and served a notice to the proprietor of the firm vide

No.DI/ND/Sgr-V/2013-14/06 dated 07.12.2013 whereby he was asked

to furnish relevant details with regard to the subject drug.

It is also story of the respondent-State that proprietor of firm M/s

Aroma Surgical House, Rohtak, Haryana, failed to furnish the desired

details in response to abovesaid notice citing the reason of his father's

cardiac surgery and requested for some more time. On 11.12.2013,

complainant along with Drug Inspector Zone III Srinagar proceeded to

Kanth Moradabad and conducted spot inspection/ investigation of the

firm, M/s Standard Surgical Dressings Co. Dhampur Road, Kanth,

Moradabad, U.P. (whose name is mentioned in the label of the subject

drug as the manufacturer of the said drug). A notice was served to Mr.

Syeed Ahmad (Proprietor of M/s Standard Surgical Dressings Co.) vide

no.DI/ND/Sgr-V/Camp-Moradabad dated 11.12.2013. He was asked

to furnish the relevant details. The Proprietor of the firm, M/s Standard

Surgical Dressings Co., submitted his reply on 12.12.2013 wherein he

stated that the firm had not manufactured any Handloom Rolled

Bandage since 2012, thereby denying any involvement in the

manufacture of the drug in question. On 16.12.2013 the proprietor of

M/s Aroma Surgical House Rohtak, Haryana, was again served a notice

CRM(M) no. 174/2014 vide no.DI/ND/Sgr-Y/2013-14/ Camp-Rohtak dated 16.12.2013,

whereby he was given a final chance to explain his position especially

with regard to purchase of the drug in question. In response, the firm

submitted its reply on 17.12.2013, wherein the proprietor of the firm

claimed that he had purchased the drug in question from M/s Standard

Surgical Dressings Co. Dhampur Road Kanth, Moradabad, but could

not provide any invoices pertaining to the said purchase. The

complainant submitted the final report to Assistant Drug Controller,

Srinagar, vide letter No.Dr/ND/ Sgr-V/2014/09 Dated 04.01.2014. The

complainant was given permission by the Controlling Authority of the

department vide letter No.DFO/D-T/1217/11652-11664 dated

23.01.2014 for launching prosecution against the accused persons. It is

stated that on the basis of oral, documentary and circumstantial

evidence, it is established that accused persons have committed

aforesaid offences, punishable under Section 32 read with Section

27(c), 28 and 28A of the Act.

4. Having regard to the case set up by petitioner and averments made in

the complaint and order of cognizance, it would be appropriate to go

through the provisions.

5. Section 17 of the Act provides:

"17. Misbranded drugs. -- For the purposes of this Chapter, a drug shall be deemed to be misbranded, --

(a) if it is so coloured, coated, powdered or polished that damage is concealed or if it is made to appear better or therapeutic value than it really is; or

(b) if it is not labelled in the prescribed manner; or

(c) if its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular."

Section 17 says about misbranded drugs. It provides that a drug

shall be deemed to be misbranded if it is so coloured, coated, powdered

CRM(M) no. 174/2014 or polished that damage is concealed or if it is made to appear better or

greater therapeutic value than it really is, or if it is not labelled in the

prescribed manner; or if its label or container or anything

accompanying the drug bears any statement, design or device which

makes any false claim for the drug or which is false or misleading in

any particular.

6. Section 17A of the Act provides "17A. Adulterated drugs.--For the purposes of this Chapter, a drug shall be deemed to be adulterated,--

(a) if it consists in whole or in part, of any filthy, putrid or decomposed substance; or

(b) if it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or

(c) if its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or

(d) if it bears or contains, for the purposes of colouring only, a colour other than one which is prescribed; or

(e) if it contains any harmful or toxic substance which may render it injurious to health; or

(f) if any substance has been mixed therewith so as to reduce its quality or strength."

Thus, bare perusal of Section 17A of the Act provides that drug

shall be deemed to be adulterated if it consists in whole or in part, of

any filthy, putrid or decomposed substance; or if it has been prepared,

packed or stored under insanitary conditions whereby it may have been

contaminated with filth or whereby it may have been rendered injurious

to health; or if its container is composed, in whole or in part, of any

poisonous or deleterious substance which may render the contents

injurious to health; or if it bears or contains, for the purposes of

colouring only, a colour other than one which is prescribed; or if it

contains any harmful or toxic substance which may render it injurious

CRM(M) no. 174/2014 to health; or if any substance has been mixed therewith so as to reduce

its quality or strength.

7. Section 17B of the Act provides as under:

"17B. Spurious drugs. --For the purposes of this Chapter, a drug shall be deemed to be spurious, --

(a) if it is manufactured under a name which belongs to another drug; or

(b) if it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label or container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug; or

(c) if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug , which individual or company is fictitious or does not exist; or

(d) if it has been substituted wholly or in part by another drug or substance; or

(e) if it purports to be the product of a manufacturer of whom it is not truly a product."

On its plain reading Section 17B of the Act says that a drug shall

be deemed to be spurious if it is manufactured under a name which

belongs to another drug or it is imitation of, or is a substitute for, another

drug or resembles another drug in a manner it is plainly and

conspicuously marked so as to reveal its true character and its lack of

identity with such other drug or if the label or container bears the name

of an individual or company purporting to be the manufacturer of the

drug , which individual or company is fictitious or does not exist or if

it has been substituted wholly or in part by another drug or substance.

It may not be out of place to mention here that Section 17B (e)

of the Act clearly provides that drug shall be deemed to be adulterated

if it purports to be the product of a manufacturer of whom it is not truly

a product.

8. Section 17C provides about misbranded cosmetics hereunder:

"17C. Misbranded cosmetics. -- For the purposes of this Chapter, a cosmetic shall be deemed to be misbranded, --

CRM(M) no. 174/2014

(a) if it contains a colour which is not prescribed; or

(b) if it is not labelled in the prescribed manner; or

(c) if the label or container or anything accompanying the cosmetic bears any statement which is false or misleading in any particular."

Section 17C of the Act says and provides that a cosmetic shall

be deemed to be misbranded if it contains a colour which is not

prescribed; or if it is not labelled in the prescribed manner; or if the

label or container or anything accompanying the cosmetic bears any

statement which is false or misleading in any particular.

9. Section 17D provides as under:

"17D. Spurious cosmetics.--For the purposes of this Chapter, a cosmetic shall be deemed to be spurious,--

(a) if it is manufactured under a name which belongs to another cosmetic; or

(b) if it is an imitation of, or a substitute for, another cosmetic or resembles another cosmetic in a manner likely to deceive or bears upon it or upon its label or container the name of another cosmetic unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other cosmetic; or

(c) if the label or container bears the name of an individual or a company purporting to be the manufacturer of the cosmetic which individual or company is fictitious or does not exist; or

(d) if it purports to be the product of a manufacturer of whom it is not truly a product."

Section 17D of the Act envisions that a cosmetic shall be

deemed to be spurious if it is manufactured under a name which belongs

to another cosmetic; or if it is an imitation of, or a substitute for, another

cosmetic or resembles another cosmetic in a manner likely to deceive

or bears upon it or upon its label or container the name of another

cosmetic unless it is plainly and conspicuously marked so as to reveal

its true character and its lack of identity with such other cosmetic; or if

the label or container bears the name of an individual or a company

purporting to be the manufacturer of the cosmetic which individual or

CRM(M) no. 174/2014 company is fictitious or doeso not exist; or if it purports to be the

product of a manufacturer of whom it is not truly a product.

10.Section 17E provides as under:

"17E Adulterated cosmetics. - For the purposes of this Chapter, a cosmetic shall be deemed to be adulterated, -

(a) if it consists in whole or in part, of any filthy, putrid or decomposed substance; or

(b) if it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or

(c) if its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or

(d) if it bears or contains, for purposes of colouring only, a colour other than one which is prescribed; or

(e) if it contains any harmful or toxic substance which may render it injurious to health; or

(f) if any substance has been mixed therewith so as to reduce its quality or strength."

Section 17E of the Act provides that cosmetic shall be deemed to

be adulterated if it consists in whole or in part, of any filthy, putrid or

decomposed substance; or if it has been prepared, packed or stored

under insanitary conditions whereby it may have been contaminated

with filth or whereby it may have been rendered injurious to health; or

if its container is composed, in whole or in part, of any poisonous or

deleterious substance which may render the contents injurious to health;

or if it bears or contains, for purposes of colouring only, a colour other

than one which is prescribed; or if it contains any harmful or toxic

substance which may render it injurious to health; or if any substance

has been mixed therewith so as to reduce its quality or strength.

11.Section 18A relates to disclosure of the name of the manufactures and

provides as under:

"18A. Disclosure of the name of the manufacturer, etc.-- Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to

CRM(M) no. 174/2014 the Inspector the name, address and other particulars of the parties from whom he acquired the drug or cosmetic."

12.Section 18B, which relates to maintenance of records and furnishing of

information, provides as under:

"18B. Maintenance of records and furnishing of information. -- Every person holding a licence under clause (c) of section 18 shall keep and maintain such records, registers and other documents as may be prescribed and shall furnish to any officer or authority exercising any power or discharging any function under this Act such information as is required by such officer or authority for carrying out the purposes of this Act."

13.Section 24 of the Act provides hereunder:

"24. Persons bound to disclose place where drugs or cosmetics are manufactured or kept. -- Every person for the time being in charge of any premises whereon any drug or cosmetic is being manufactured or is kept for sale or distribution shall, on being required by an Inspector so to do, be legally bound to disclose to the Inspector the place where the drug or cosmetic is being manufactured or is kept, as the case may be."

Section 24 of the Act stipulates upon every person for the time

being in charge of any premises whereon any drug or cosmetic is being

manufactured or is kept for sale or distribution shall, on being required

by an Inspector so to do, be legally bound to disclose to the Inspector

the place where the drug or cosmetic is being manufactured or is kept,

as the case may be.

14.Section 27 provides and envisages as under:

"27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter. - Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes

(a) any drug deemed to be adulterated under section 17-A or spurious under section 17-B and which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to

CRM(M) no. 174/2014 fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more:

Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause:

Provided further that where the use of the adulterated or spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realised from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulterated or spurious drugs referred to in this clause.

Explanation. - For the purposes of the second proviso, the expression relative means

(i) spouse of the deceased person; or

(ii) a minor legitimate son, and unmarried legitimate daughter and a widowed mother; or

(iii) parent of the minor victim; or

(iv) if wholly dependent on the earnings of the deceased person at the time of his death, a son or a daughter who has attained the age of eighteen years; or

(v) any person, if wholly or in part, dependent on the earnings of the deceased person at the time of his death,

(a) the parent; or

(b) a minor brother or an unmarried sister; or

(c) a widowed daughter-in-law; or

(d) a widowed sister; or

(e) a minor child of a pre-deceased son; or

(f) a minor child of a pre-deceased daughter where no parent of the child is alive; or

(g) the paternal grandparent if no parent of the member is alive;]

(b) any drug (i) deemed to be adulterated under section 17- A, but not being a drug referred to in clause (a), or (ii) without a valid license as required under clause (c) of section 18, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more:

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three years and of fine of less than one lakh rupees;

(c) any drug deemed to be spurious under section 17-B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not less than seven years but which may extend to imprisonment for life and with fine which shall not be three lakh rupees or three times the value of the drugs confiscated, whichever is more:

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years but not less than three years and of fine of less than one lakh rupees;

(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with

CRM(M) no. 174/2014 imprisonment for a term which shall not be less than one year but which may extend to two years [and with fine which shall not be less than twenty thousand rupees]:

Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year."

Section 27, thus, provides that whoever, himself or by any other

person on his behalf, manufactures for sale or for distribution, or sells,

or stocks or exhibits or offers for sale or distributes any drug deemed to

be adulterated under section 17A or spurious under section 17B shall

be punishable with imprisonment for a term which shall not be less than

ten years but which may extend to imprisonment for life and shall also

be liable to fine which shall not be less than ten lakh rupees or three

times value of the drugs confiscated, whichever is more.

Section 27 (c) provides that any drug deemed to be spurious

under section 17B, but not being a drug referred to in clause (a) shall

be punishable with imprisonment for a term which shall not be less than

seven years but which may extend to imprisonment for life and with

fine which shall not be less than three lakh rupees or three times the

value of the drugs confiscated, whichever is more.

15.Section 28 and 28A provides as under:

"28. Penalty for non-disclosure of the name of the manufacturer, etc.--Whoever contravenes the provisions of section 18A 2 or section 24 shall be punishable with imprisonment for a term which may extend to one year, or with fine which shall not be less than twenty thousand rupees or with both.

28A. Penalty for not keeping documents, etc., and for non- disclosure of information. -- whoever without reasonable cause or excuse, contravenes the provisions of section 18B shall be punishable with imprisonment for a term which may extend to one year or with fine which shall not be less than twenty thousand rupees or with both."

16.As said above, a complaint was filed by respondent/complainant before

the Trial Court, in which it is claimed that the samples were lifted from

the Stores in question and sent to Drug Testing Laboratory for testing/

CRM(M) no. 174/2014 analysis purposes. These samples were declared to be not of standard

quality by Government Analyst. Thereafter, the matter was taken up

with Incharge Pharmacy/Stores in question. In view of statement given

by Incharge Pharmacy/Stores, matter was taken up with alleged

manufacturer(s), which, however, disowned the product. After

fulfilling all the formalities, the complaints came to be filed before the

Trial Court, on which the Trial Court took cognizance and issued

process against petitioners.

17.Learned senior counsel for petitioner, while reiterating the grounds

taken in the petition, would contend that petitioners are not

manufacturers nor have they manufactured the items seized nor have

they supplied it to the institution. Petitioners have never been asked to

disclose the name of manufacturer nor are they custodians of the record

nor have they been questioned and despite that they have been arrayed

as accused persons. It is also stated that before issuing process, the

Magistrate has to record statement of complainant in support of

complaint and witnesses and thereafter has to satisfy himself as to

whether cognizance can be taken in view of contents of complaint and

that in the present case, novel procedure has been adopted by the Trial

Court inasmuch as he has dispensed with the statement of complainant

and witnesses by holding that complaint has been filed by State, so there

is no need to record the statement of complainant and witnesses. It is

also submitted that sample was taken on 02.08.2012 and was not sent

on the same day but was withheld for months together and finally the

report was sent on 13.12.2012 and no explanation has been given by

complainant as to why the sample was not sent on that very day and as

CRM(M) no. 174/2014 to why it was kept and this procedural lapse shakes the complaint itself.

It is also averred that Drug Inspector has not followed prerequisites

necessary in terms of the Act in lifting samples, in getting those

analysed and in filing complaint before the Trial Court and

consequently the cognizance and process was not taken in its right

perspective. According to learned senior counsel, powers under Section

482 Cr.P.C. inherent in this Court require to be exercised to pass orders

quashing the cognizance and order of process initiated by the Trial

Court.

18.It is very important to mention here that as is also evident from perusal

of the file as also the complaint that respondent took up the matter with

the manufacturer, who, as claimed by petitioner had manufactured the

seized/lifted item, but alleged manufacturer disowned the seized

product/item. In this situation, provisions of Section 17B (e) of the Act,

which provides that a drug shall be deemed to be spurious if it purports

to be the product of a manufacture of whom it is not truly a product. In

such situation, petitioners cannot be heard saying that this Court in

exercise of inherent powers under Section 482 Cr.P.C. may quash the

complaint and proceedings emanating therefrom because it is for the

Trial Court to have a full-fledged trial of the case, sift the evidence,

examine and cross-examine the witnesses and thereafter have a full-

fledged. It would be appropriate to say that the scope of Section 482

Cr.P.C. is well defined and inherent powers could be exercised by the

High Court to give effect to an order under the Code, to prevent abuse

of the process of court; and to otherwise secure the ends of justice. This

extraordinary power is to be exercised ex debito justitiae. However, in

CRM(M) no. 174/2014 exercise of such powers, it is not permissible for the High Court to

appreciate the evidence as it can only evaluate material documents on

record to the extent of its prima facie satisfaction about existence of

sufficient ground for proceedings against accused and the court cannot

look into materials, acceptability of which is essentially a matter for

trial.

19.The judicial conscience of the High Court should persuade it to quash

such criminal proceedings in exercise of power vested in it under

Section 482 Cr.P.C., if answer to all the steps, as enumerated herein

after, is in affirmative, has been so said by the Supreme Court in Rajiv

Thapar v Madan Lal Kapoor, 2013 (3) SCC 330:-

"Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure:

i. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

ii. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

iii. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

iv. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?"

20.The case in hand, when examined on the touchstone of law laid down

by the Supreme Court, does not at all persuade this Court to grant the

relief prayed for by the petitioners in the instant petition. It is well

settled law that Section 482 of the Code of Criminal Procedure

CRM(M) no. 174/2014 empowers the High Court to exercise its inherent powers to prevent

abuse of the process of Court. The Supreme Court in State of Telangana

v. Habib Abdullah Jeelani, reported in 2017 (2) SCC 779, has held that

the powers under Section 482 Cr.P.C. to quash the FIR or complaint, is

to be exercised in a very sparing manner as is not to be used to choke

or smother the prosecution that is legitimate. Inherent powers do not

confer an arbitrary jurisdiction on the High Court to act according to

whim or caprice. Such power has to be exercised sparingly, with

circumspection and in the rarest of rare cases. Inherent powers in a

matter of quashing FIR or complaint have to be exercised sparingly and

with caution and only when such exercise is justifying by the test

specifically laid down in provision itself. Power under Section 482

Cr.PC, is a very wide, but conferment of wide power requires the Court

to be more conscious. It casts an onerous and more diligent duty on the

Court.

21.The Supreme Court in State of Telangana v. Habib Abdullah Jeelani,

reported in 2017 (2) SCC 779, has held that the powers under Section

482 Cr.P.C. or under Article 226 of the Constitution of India, to quash

the FIR or complaint, is to be exercised in a very sparing manner as is

not to be used to choke or smother the prosecution that is legitimate.

Inherent powers do not confer an arbitrary jurisdiction on the High

Court to act according to whim or caprice. Such power has to be

exercised sparingly, with circumspection and in the rarest of rare cases.

Inherent powers in a matter of quashing the proceedings, FIR or

complaint have to be exercised sparingly and with caution and only

when such exercise is justifying by the test specifically laid down in

CRM(M) no. 174/2014 provision itself. Power under Section 482 Cr.PC, is a very wide, but

conferment of wide power requires the Court to be more conscious. It

casts an onerous and more diligent duty on the Court.

22.The Supreme Court in the case of State of Haryana and others v. Bhajan

Lal and others, 1992 Supp (1) SCC 335, has elaborately considered

scope and ambit of Section 482 Cr.P.C. and Article 226 of the

Constitution of India in the background of quashing the proceedings in

criminal investigation. After noticing various earlier pronouncements,

the Supreme Court made certain categories of cases by way of

illustration, where the power under Section 482 Cr. P.C. can be

exercised to prevent abuse of the process of the Court or secure ends of

justice. Paragraph 102, which gives seven categories of cases where

power can be exercised under Section 482 Cr. P.C. are reproduced as

follows:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

CRM(M) no. 174/2014 (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

23.In another case of State of Andhra Pradesh v. Golconda Linga Swamy,

reported in (2004) 6 SCC 522, the Supreme Court, while dealing with

inherent powers of the High Court under Section 482 Cr. P.C., has

observed and held as under:

"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique

CRM(M) no. 174/2014 concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself.

It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. xxxxxx

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335)...... xxxxxxx 8 As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy,

CRM(M) no. 174/2014 more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC 1)). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding."

24.The above settled position of law has also been reiterated by the

Supreme Court in Priti Saraf & anr v. State of NCT of Delhi & anr,

2021 SCC Online SC 206, and it has been observed that inherent power

of the High Court is an extraordinary power which has to be exercised

with great care and circumspection before embarking to scrutinize a

complaint / FIR / charge-sheet in deciding whether the case is the rarest

of rare cases, to scuttle the prosecution at its inception. It is settled that

whether the allegations in the complaint were true, is to be decided on

CRM(M) no. 174/2014 the basis of evidence during the trial. In the matter of exercise of

inherent power by the High Court, the only requirement is to see

whether continuance of the proceedings would be a total abuse of the

process of the Court.

25.In the above backdrop it may be appropriate to mention here that

Section 482 of the Code of Criminal Procedure, preserves the inherent

powers of the High Court to prevent an abuse of the process of any

court or to secure the ends of justice. The provision does not confer new

powers. It only recognises and preserves powers which inhere in the

High Court. The High Court, while forming an opinion whether a

criminal proceeding or complaint or FIR should be quashed in exercise

of its jurisdiction under Section 482 Cr. P.C., must evaluate whether the

ends of justice would justify the exercise of the inherent power. While

inherent power of the High Court has a wide ambit and plenitude, it has

to be exercised to secure ends of justice or to prevent an abuse of the

process of any court.

26.The instant petition, when looked from all angles, requires and demands

full dress trial and examination of facts by this Court as if it is in appeal

and acting as an appellate court and to draw its own conclusion vis-à-

vis impugned complaint and proceedings emanating therefrom. This is

not the aim and objective of provisions of Section 482 Cr. P.C. more

particularly when petition on hand does not unveil any ground muchless

cogent or material one, to indicate that the inherent powers are to be

exercised to prevent abuse of process of law and to secure ends of

justice. In that view of matter, impugned complaint and proceedings

CRM(M) no. 174/2014 emanating therefrom do not call for any interference qua petitioners and

as a consequence of which, petition on hand is liable to be dismissed.

27.For the reasons discussed above, the instant petition is without any

merit and is, accordingly, dismissed with connected CM(s). Interim

direction, if any, shall stand vacated.

(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 13.10.2023 "Amjad Secy."

Whether approved for reporting? Yes

CRM(M) no. 174/2014