Thomas C. Cherian And Anr vs Ut Through Drug Control Officer ...
2023 Latest Caselaw 1340 j&K/2

HIGH COURT OF JAMMU &KASHMIR AND LADAKH
               AT SRINAGAR

                           CRM (M) 558/2023
                            Crl M 1302/2023


Thomas C. Cherian and Anr.                           .....Petitioner(s)

Through: Ms. Deepali Arora, Advocate

                                       V/s
UT through Drug Control Officer Zone V Srinagar
                                              .....Respondent(s)

Through:

CORAM:
   HON'BLE MS. JUSTICE WASIM SADIQ NARGAL, JUDGE

                                    ORDER

17.10.2023

1. By the medium of this petition, the petitioners have challenged

complaint filed by the respondent against them alleging commission of

offences under section 18 (a) (i) read with 27 (d) of the Drugs and

Cosmetics Act, (for short 'Act') and also the order dated 1st March, 2023,

by virtue of which the Chief Judicial Magistrate, Srinagar, has taken

cognizance of the offences and issued process against the petitioners.

2. It is contended by learned counsel for the petitioners that it is only

the Court of Sessions who is competent to try cases under Chapter IV of

the Act, and, as such, the learned Magistrate has no jurisdiction

whatsoever under law, to take cognizance of the offence and to issue

process against the petitioners.

3. Learned counsel on behalf of the petitioners vehemently argued

that the impugned order of taking cognizance by the learned Magistrate is

cryptic in nature, inasmuch as, the learned Magistrate has not recorded any satisfaction as to which offences are made out against the petitioners

on the basis of the material on record.

4. Learned counsel on behalf of the petitioners further argued that the

impugned complaint is liable to be quashed qua the petitioners in view of

the settled legal position that a criminal complaint against any Director or

an officer of a company does not lie in absence of specific averments and

specific role in the complaint that such person arrayed as an accused in

the complaint was in-charge of and was also responsible for the conduct

of business of accused company.

5. It is the specific case of the petitioners that the respondents herein

have failed to establish extent of liability and role played by petitioners in

terms of section 34 of the Act in the commission of the alleged offences.

The further case of the petitioners is that there is no presumption under

law with reference to section 34 of the Act, that every person appointed

in manufacturing company is liable for the offences allegedly committed

by the said company and only those officers or employees of the

company are required to be arrayed as accused who fulfills the

ingredients of section 34 of the Act.

6. Learned counsel for the petitioners submits that the impugned

complaint is liable to be quashed on the ground that in view of the

settled legal position that for making officers/director of the

manufacturing company vicariously liable for offences committed by

such company, there must be some specific averments as well as

evidence against the such officers/director, showing as to how and in

what manner, such director is responsible for the conduct of business of

CRM (M) 558/2023 Crl M 1302/2023 such manufacturing as well as in-charge of the business as has been

alleged in the complaint.

7. Learned counsel for the petitioners has placed reliance upon the

judgment passed by a Coordinate Bench of this Court in CRMC no.

329/2017, titled " Mohammad Iqbal Mir v/s State of J & K and Anr"

whereby the Coordinate Bench has allowed the petition and impugned

compliant and the process initiated against the petitioners therein has

been quashed. Besides, learned counsel for the petitioners has also placed

reliance upon the interim orders passed by a Coordinate Bench of this

Court in CRM (M) 161/2022, titled " Elder Projects Limited v. UT

through Drugs Control Officer Shopian" and CRM (M) 113/2023, titled "

Anita Kukreja and Anr v. UT of J & K through Drug Control Officer"

whereby the impugned complaint and orders have been stayed and

accordingly prays, for same reliefs in the instant petition.

8. I have heard learned counsel for the petitioners at length and

perused the record.

9. Prima facie case for indulgence and interim relief is mad out.

10. With a view to maintain parity, this Court deems it proper to pass

the similar order as has been passed by the Coordinate Bench of this

Court in CRM (M) 161/2022, titled " Elder Projects Limited v. UT

through Drugs Control Officer Shopian" and CRM (M) 113/2023, titled "

Anita Kukreja and Anr v. UT of J & K through Drug Control Officer"

11. Issue notice to the respondents returnable within three weeks.

Steps for service within one week.

12. List on 6th December, 2023.

CRM (M) 558/2023 Crl M 1302/2023

13. In the meantime, subject to objections from the other side and till

next date of hearing before the Bench, proceedings in the impugned

complaint bearing no. 5833/2023, titled "UT of J & K through Drug

Control Officer v/s M/S Pharma Impex Laboratories Pvt. Ltd" pending

before the Court of learned Chief Judicial Magistrate Srinagar and order

dated 1st March, 2023, qua the petitioners shall remain stayed.

14. Alteration, modification and vacation on motion.

(WASIM SADIQ NARGAL) JUDGE

SRINAGAR 17.10.2023 MUBASHIR

CRM (M) 558/2023 Crl M 1302/2023