Jharkhand High Court

M/S Laborate Pharmaceuticals ... vs The State Of Jharkhand on 6 August, 2021

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       Cr.M.P. No. 110 of 2012
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1. M/s Laborate Pharmaceuticals India Ltd, having its registered office at E-11, Industrial Area, Panipat-132103, P.O. and P.S. Panipat, District- Panipat (Haryana) through Mr. Varun Kumar Kathuria, Law Officer, son of Sh. K.C. Kathuria, resident of P.O. 652-A/13 Sikka Colony Sonepat, P.S. Sonepat, District-Sonepat, State Haryana.

2. Sanjay Bhatia, son of late Pirthivi Raj Bhatia, resident of E-11, Industrial Area, Panipat-132103, P.O. and P.S. Panipat, District-Panipat (Haryana). ... .... .... Petitioner Versus

1.The State of Jharkhand

2.Inspector of Drugs, Ranchi-1, Govt. Pharmacy Institute, Bariatu, Ranchi-9, P.O. Bariatu, P.S. Sadar, District-Ranchi ... .... Opposite Parties

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioners : Mr. Deepak Kumar Prasad, Advocate For the State : Mr. Sunil Kr. Dubey, A.P.P.

............

05/06.08.2021 Heard Mr. Deepak Kumar Prasad, learned counsel for the

petitioners and Mr. Sunil Kumar Dubey, learned counsel for the State.

2. This petition has been heard through Video Conferencing in view of

the guidelines of the High Court taking into account the situation arising due

to COVID-19 pandemic. None of the parties have complained about any

technical snag of audio-video and with their consent this matter has been

heard.

3. The present petition has been filed for quashing of entire criminal

proceeding in connection with C-III-185/2010 under sections 18(a)(i)(vi) 18

(b) and 27(d) of the Drug and Cosmetic Act, 1940 including order taking

cognizance dated 27.04.2010/01.05.2010 passed by the learned Chief

Judicial Magistrate, Ranchi.

4. Complaint was made by the Drug Inspector, Ranchi vide letter no.

273 dated 27.04.2010 in which it was alleged that the medicine namely

Oxytocin Injection I.P. supplied by the M/s Laborate Pharmaceutical (India)

Ltd. was found substandard by the Govt. analyst in report dated 04.11.2009

and therefore the complaint has been lodged against the petitioners and

others.

5. Mr. Deepak Kumar Prasad, learned counsel for the petitioners

submits the petitioner no. 1 is company and petitioner no. 2 is one of the

director of the said company. He submits that so far petitioner no. 2 is

concerned, he is not looking into the day to day affairs of the company and

that is why he is not liable to be prosecuted in this case. He further submits

that after lodging complaint case, by letter no. 115 dated 16.02.2010, O.P.

No.2 informed to State RCH office of Ranchi to provide the sample to the

petitioners, shows that the manufacturer shall comply the provision of

Section 25(3) of the Drug and Cosmetics Act, 1940. He further submits that

there was no drug laboratory in the State of Jharkhand and therefore the

same was sent to the Central Drug Laboratory, Kolkata by the O.P. No. 2 and

when the objection was raised by the petitioner-firm under section 25(3) of

the Drugs & Cosmetics Act, 1940 for the retest by the Central Drug

Laboratory which was issued under the signature of the Director. He further

submits that the O.P. No. 2 has not handed over the government analyst

report to representative of the company and the company refused to accept

the report of the government analyst report and it was challenged by way

of writing letters. In the light of above, the company tested the same Batch

No. 80A99 kept in the laboratory of the company and the analyst as well as

the head of quality control of M/s Laborate Pharmaceuticals India Ltd. has

remarked the sample submitted complies with the prescribed standard

quality of IP.

6. Mr. Deepak Kumar Prasad, learned counsel for the petitioners by

way of drawing attention of the Court to section 23 (4) of the said Act

submits that sub-section (iii) of the said Act provides the remedy to the

petitioner and inspite of objection raised, the same was not provided to the

petitioners. For the sake of brevity Section 23(4) of the Act is quoted here-

in-below:-

23(4):-The Inspector shall restore one portion of a sample so

divided or one container as it may be, to be the person from

whom he takes it and shall retain the reminder and dispose of

the same as follows :-

(i)One portion or container he shall forthwith send to the

Government Analyst for test or analysis;

(ii). The second he shall produce to the Court before

which proceedings, if any, are instituted in respect of the

drug [or cosmetic], and

(iii) the third, where taken, he shall send to the person, if

any, whose name, address and other particulars have

been disclosed under section 18A.

7. Learned counsel for the petitioner further submits that this aspect

of the matter has been considered by the Hon'ble Supreme Court in the

case of "Medicamen Biotech Limited & Anr. Vs. Rubina Bose, Drug

Inspector" reported in (2008) 7 SCC 196 wherein para 9 the Hon'ble

Supreme Court has held as under:-

"9. The Court also opined that from the facts of the case, it appeared that the allegations made in the petition did not indicate the commission of an offence as they did not suffer from any "inherent absurdity so as to raise controversy in regard to its maintainability". It also held that one portion of the sample had been given to the accused and the necessary formalities had been complied with. It is in this situation that the matter is before us in appeal."

8. Learned counsel for the petitioners submits that the report was filed

after expiry of validity of that medicine. On these premises, learned counsel

for the petitioners submits that the entire criminal proceeding is bad in law

and may be interfered by this Court and the criminal proceeding including

order taking cognizance is fit to be quashed.

9. Mr. Sunil Kumar Dubey, learned counsel for the State tried to justify

the proceeding and submits that there is no illegality in the cognizance

order.

10. So far as section 23(4) (iii) is concerned that is very clear

which says that the valuable right of the petitioner for reanalysis has

been violated. This aspect of the matter has been again considered by the

Hon'ble Supreme Court in the case of "Laborate Pharmaceuticals

India Limited & Ors. Vs. State of Tamil Nadu" reported in (2018) 15

SCC 93 wherein paras 8 and 9 the Hon'ble Supreme Court has held as

under:-

"8.All the aforesaid facts would go to show that the valuable right of the appellant to have the sample analysed in the Central Laboratory has been denied by a series of defaults committed by the prosecution: firstly, in not sending to the appellant manufacturer part of the sample as required under Section 23(4)

(iii) of the Act, and secondly, on the part of the Court in taking cognizance of the complaint on 4-3.2015 though the same was filed on 28.11.2012. The delay on both counts is not attributable to the appellants and, therefore, the consequences thereof cannot work adversely to the interest of the appellants. As the valuable right of the accused for reanalysis vested under the Act appears to have been violated and having regard to the possible shelf life of the drug we are of the view that a on date the prosecution, if allowed to continue, would be a lame prosecution.

9. Consequently and for the reasons alluded we are of the view that the present would be a fit case to interdict the criminal trial against the appellant-accused. We order accordingly. Therefore, CC No. 263 of 2015 pending on the file of the XVth Metropolitan Magistrate, George Town, Chennai is hereby quashed. The appeal is allowed and the order of the High Court is set aside."

11. The aforesaid judgments have been followed by this Court in

Cr.M.P. No. 94 of 2012 (M/s Laborate Pharmaceuticals India Ltd. & Anr. Vs.

State of Jharkhand & Another) and in Cr.M.P. No. 75 of 2012 (M/s Laborate

Pharmaceuticals India Ltd. & Anr. Vs. State of Jharkhand & Another) wherein

case has been quashed on similar ground.

12. As a cumulative effects of the aforesaid findings and in view

of aforesaid judicial pronouncements, entire criminal proceeding in

connection with C-III-185/2010 under sections 18(a)(i)(vi) 18 (b) and 27(d)

of the Drug and Cosmetic Act, 1940 including order taking cognizance dated

27.04.2010/01.05.2010 passed by the learned Chief Judicial Magistrate,

Ranchi so far it relates to the petitioners, are hereby quashed.

13. The criminal miscellaneous petition stands allowed and