Jammu & Kashmir High Court - Srinagar Bench
Kalpana Umakant And Others vs Union Of India on 12 January, 2024
Author: Rahul Bharti
Bench: Rahul Bharti
Serial No. 25
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Case:- CRM(M) No. 11/2024
CrlM Nos. 22/2024 & 23/2024
Kalpana Umakant and others .....Appellant(s)/Petitioner(s)
Through: Mr. Tanveer Ahmed Mir, Advocate
(through VC) with
Mr. Arfat Rashid Lone, Advocate.
Vs
Union of India ..... Respondent(s)
Through: Ms. Bisma Ali, Advocate vice
Mr. T. M. Shamsi, DSGI.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
(12.01.2024)
1. Heard learned counsel for the petitioners, perused the petition
and the documents accompanying therewith.
2. The petitioners no. 1 to 3 are named as accused no. 1, 2 & 4 in
array of eight (8) accused persons in a criminal complaint filed under
section 18 (a) (i) read with section 27 (d) of Drugs & Cosmetics Act, 1940
by the Drug Inspector, Central Drugs Standard Control Organization
(CDSCO) Sub-Zone, Chandigarh.
3. The petitioners sought their exit from the prosecution under said
criminal complaint on purported basis of they being not the directors of the
prime accused no. 5-company named M/s Martin & Harris Laboratories
Ltd., on 02.06.2012 which being the date of manufacture of drug Martifur,
alleged to be a non standard drug.
4. The plea of the petitioners having failed to earn an acceptance
from the trial court of learned Chief Judicial Magistrate, Srinagar is now
being repeated before this Court through the medium of the present
petition invoking section 482 of the Code of Criminal Procedure, 1973.
5. The accused no. 5-M/s Martin & Harris Laboratories Ltd., came
to be incorporated as a company on 22.07.1993. The petitioners No. 1 & 2
came to be appointed as honorary directors on 13.06.1997. The petitioner
no. 1 is said to have resigned from the directorship w.e.f. 11.11.2011
whereas the petitioner no. 2 on 21.03.2011. The petitioner no. 3 is said to
have become the director of the accused no. 5-M/s Martin & Harris
Laboratories Ltd., on 15.10.2012. Thus, by that reference all the three
petitioners unrelate themselves to 02.06.2012.
6. On 25.04.2013, the Drug Inspector concerned had come to
procure 160 tablets of drug Martifur from the medical shop M/s Fair Price
Cooperative Medical Store, District Hospital, Pulwama Kashmir run by
one Bashir Ahmed which drug came to be found to be not of standard
quality resulting in the institution of the criminal complaint on 21.08.2014
by the complainant-Drug Inspector against eight (8) named accused
persons, three of them being the petitioners herein as accused No. 1, 2 & 4.
7. The complaint was filed before the learned Chief Judicial
Magistrate, Srinagar which came to take cognizance in terms of an order
dated 21.08.2014 resulting in issuance of process against all the accused
persons.
8. Against cognizance taking order so passed by the learned Chief
Judicial Magistrate, Srinagar, the petitioners herein joined by one Gopal
Krishan Nigam also a co-director at the relevant point of time had come to
petition this Court under section 561-A of the Jammu and Kashmir Code of
Criminal Procedure, Svt. 1989 no. 83 of 2016 in which the cognizance of
the matter against them was questioned inter alia on the ground that their
non-existing status as director by reference to relevant date of 02.06.2012
of manufacture of the drug in reference Martifur (Nitrofurantoin Tablets IP
100 mg), Batch no. TMFBR99.
9. The said petition of the petitioners came to be dismissed in terms
of a judgment dated 05.06.2017 against which the petitioners herein came
to prefer a review petition RPCR no. 21/2017 which came to be disposed
of in terms of an order dated 26.08.2021.
10. In terms of the said order dated 26.08.2021 so passed in the
review petition above mentioned, this Court came to observe that the Chief
Judicial Magistrate concerned at the time of considering the matter for the
purpose of framing charge not to be influenced with any observation made
or finding recorded in the judgment dated 05.06.2017 passed in said 561-A
CrPC no. 83/2016.
11. Pursuant to the observation so made by this Court in the review
petition RPCR no. 21/2017, the petitioners herein came to prefer an
application before the court of learned Chief Judicial Magistrate, Srinagar
seeking their discharge from the complaint.
12. The petitioners' application has come to be rejected by the court
of Chief Judicial Magistrate, Srinagar vide its order dated 31.07.2023
against which the petitioners have now come in second round before this
Court invoking inherent powers of this Court vested under section 482 of
the Code of Criminal Procedure, Svt. 1973.
13. Learned counsel for the petitioners argues that in the face of
settled position of law that for an offence committed by a company
culpability can come to rest upon its director/s who at the relevant point of
time of commission of alleged offence was not only in the director's
position but also in charge of day to day affairs of the accused-company,
the prosecution of the petitioners is unwarranted and misconceived.
14. In the context of the present case, the learned counsel for the
petitioners submits that the petitioners no. 1 & 2 had ceased to be in the
seat of directorship of the accused no. 5-M/s Martin & Harris Laboratories
Ltd., whereas the petitioner no. 3 came to be in the seat of director after
02.06.2012-the date of alleged commission of offence.
15. In this regard, learned counsel for the petitioners tries to
distinguish that in the earlier round, the attempt on the part of the
petitioners to persuade this Court for being relieved from the criminal
prosecution had not earned an acceptance on the count that at the said point
of time of filing of the petition under section 561-A of the Jammu and
Kashmir Code of Criminal Procedure, Svt. 1989, the documents brought
on record were photo-copies of the documents on the basis of which the
petitioners were pleading to get their non-director status accepted and
recognized by this Court which, however, was not assented to whereas in
their application filed before the learned Chief Judicial Magistrate,
Srinagar, the certified copies were duly produced which warranted
consideration for the purpose of relieving the petitioners from the criminal
case as the documents so produced admit of no dispute or denial.
16. Learned counsel for the petitioners has argued that the complaint
in its para-26 has referred to the status of the petitioners as directors of the
accused no. 5- M/s Martin & Harris Laboratories Ltd., without any due
diligence on the part of the complainant as to on what basis the petitioners
came to be so addressed as directors of the accused company when they
were not so in the eye of law.
17. Learned counsel for the petitioners, thus, submits that a criminal
complaint against them is an abuse of process of law from which they need
to be relieved.
18. Prima facie case is made out.
19. Issue notice to the respondent.
20. Ms. Bisma Ali, learned counsel appearing vice Mr. T. M.
Shamsi, learned DSGI accepts notice on behalf of the respondent.
21. Send for the scanned record from the court of learned Chief
Judicial Magistrate, Srinagar.
22. List on 11.03.2024.
23. In the meantime, proceedings in the case titled "Union of India
through Drug Inspector Vs. Amit Kansal & Ors." before the court of
learned Chief Judicial Magistrate, Srinagar shall remain stayed. This order
is, however, subject to objections from the other side.
(RAHUL BHARTI)
JUDGE
SRINAGAR
12.01.2024
Shivalee
