Jharkhand High Court

Dr. Dharm Prakash Arya @ Dr. D.P. ... vs The State Of Jharkhand Through ... on 14 December, 2021

                                               1

                    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr.M.P. No. 2268 of 2016
             1.   Dr. Dharm Prakash Arya @ Dr. D.P. Arya, son of Late Mahesh Lal Arya,
                  Partner
             2.   Sri Harsh Prakash Arya, son of Dr. Dharm Prakash Arya, Partner
             3.   M/s Nav Shakti Drugs, a partnership concern, Ratu Road, Ranchi
                  having its Partners petitioner nos. 1 and 2.
                  All the petitioners are resident of M/s Nav Shakti Drugs, P.O. Hehal,
                  P.S. Sukhdeo Nagar, District- Ranchi (Jharkhand) 834005
                                                                    ... Petitioners
                                          -Versus-
                  The State of Jharkhand through Drug Inspector Ranchi-II Government
                  Pharmacy Institute Campus, Bariyatu, P.O. Bariatu, P.S. Bariatu,
                  District- Ranchi-834009                           ... Opposite Party

                                                  With
                                      Cr.M.P. No. 2259 of 2016
             1.   Dr. Dharm Prakash Arya @ Dr. D.P. Arya, son of Late Mahesh Lal Arya,
                  Partner
             2.   Sri Harsh Prakash Arya, son of Dr. Dharm Prakash Arya, Partner
             3.   M/s Nav Shakti Drugs, a partnership concern, Ratu Road, Ranchi
                  having its Partners petitioner nos. 1 and 2.
                  All the petitioners are resident of M/s Nav Shakti Drugs, P.O. Hehal,
                  P.S. Sukhdeo Nagar, District- Ranchi (Jharkhand) 834005
                                                                    ... Petitioners
                                          -Versus-
                  The State of Jharkhand through Drug Inspector Ranchi-II Government
                  Pharmacy Institute Campus, Bariyatu, P.O. Bariatu, P.S. Bariatu,
                  District- Ranchi-834009                           ... Opposite Party
                                            -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----
             For the Petitioners            : Mr. Abhishek Krishna Gupta, Advocate

For the Opposite Party-State : Mr. Sunil Kumar Dubey, A.P.P.

-----

10/14.12.2021. Heard Mr. Abhishek Krishna Gupta, learned counsel for the petitioners

and Mr. Sunil Kumar Dubey, learned A.P.P. for the opposite party-State.

2. In Cr.M.P. No. 2268 of 2016, the petitioners have prayed for quashing

the entire criminal proceedings in connection with C-III Case No. 182/2014,

including the order dated 05.08.2014 passed by the learned A.C.J.M.,

Ranchi, whereby cognizance has been taken against the petitioners for the

offence punishable under Section 27(d) of the Drugs & Cosmetics Act, 1940

and in Cr.M.P. No. 2259 of 2016, the petitioners have prayed for quashing

the entire criminal proceedings in connection with C-III Case No. 183/2014,

including the order dated 05.08.2014 passed by the learned A.C.J.M.,

Ranchi, whereby cognizance has been taken against the petitioners for the

offence punishable under Section 27(d) of the Drugs & Cosmetics Act, 1940.

3. The allegations made in the complaint petitions instituted by the Drug

Inspector are to the effect that the Drug Inspector had taken sample for the

medicines namely NUKAZINE-1 and Nuryl Tablet for test analysis on

29.06.2005 from M/s Nav Shakti Drugs, P.O. Hehal, Ratu Road, Ranchi-

834005, which were taken for the purposes of check and inspection and

collected and stored as per Form 17 and were sent to the Government

Analyst, Central Drug Laboratory, Kolkata for their analysis in Form-13. It is

alleged that the Government Analyst in the reports dated 04.10.2006 and

12.09.2007 declared the medicines to be sub-standard. On 04.11.2006 and

15.10.2007, the said test results were supplied to the petitioner-

manufacturer. The Drug Inspector, Ranchi vide letter dated 04.08.2014 i.e.

after lapse of more than 9 years of the date of collection of sample,

requested the learned court of A.C.J.M., Ranchi to register the cases as

against the petitioners and to take cognizance of the offence. On the said

applications, the cases were registered as C-III 182/2014 and C-III

183/2014.

4. Learned counsel for the petitioners submits that the learned trial court

took cognizance under Section 27(d) of the Act. The maximum punishment

prescribed under Section 27(d) of the Act is 2 years. However, the complaint

cases got registered on 05.08.2014 i.e. after nine years from the date of

collection of sample as well as around seven years from the date of

declaration of the same as sub-standard by the Government Analyst. He

further submits that in terms of Section 468(2)(c) of Cr.P.C., such complaint

could have been filed within a period of three years from the date of cause

of action arose. He also submits that the complaint cases were filed after a

lapse of seven years which is wholly impermissible in law. Section 468

Cr.P.C. is a mandatory statutory provision, therefore, the complaints filed

were time barred and the order taking cognizance dated 05.08.2014 is bad

in law. Learned counsel for the petitioners relied upon the judgment

rendered by the Hon'ble Supreme Court in the case of Sarah Mathew

versus Institute of Cardio Vascular Diseases by its Director Dr.

K.M. Cherian And Others reported in (2014) 2 SCC 62 as well as the

order passed by a coordinate Bench of this Court in Cr.M.P. No.104 of 2015,

dated 09.08.2017.

5. Learned A.P.P. for the State on the other hand has opposed the prayer

made by the petitioners and submits that complaint petitions clearly reveal

the fact that the Drugs which were manufactured by the petitioner's

company were not in conformation with the standards required and

therefore criminal prosecution was lodged against the petitioners. He further

submits that the test reports were made available to the petitioners and

explanation was also sought for but since no explanation was submitted by

the petitioner's company the complaint cases were instituted. He also

submits that sanction was given by the competent authority and thereafter

the complaint cases were instituted and considering the gravity of the

offence cognizance had rightly been taken by the learned court below u/s

27(d) of the Drugs and Cosmetics Act which does not require any

interference by this Court.

6. It is an admitted fact as per the complaint petitions itself that the

sample of medicines manufactured by the petitioner's company were

collected on 29.06.2005. The reports of the Government Analyst were dated

04.10.2006 and 12.09.2007 which declared the medicines to be sub-

standard. The complaint cases were instituted on 04.08.2014 and on

05.08.2014 cognizance was taken by the learned A.C.J.M., Ranchi u/s 27(d)

of the Drugs and Cosmetics Act. It would thus appear that more than 9

years have passed from the date of collection of the samples till the date of

taking of cognizance or for that matter till the date of filing of the complaint.

A feeble attempt has been made by the prosecution with respect to the

delay in instituting the complaint case but such explanation seems to be

totally unreasonable and unsatisfactory. The maximum punishment which

can be imposed u/s 27(d) of the Act is of two years and the period of

limitation as prescribed in Section 468 of the Cr.P.C. is three years and the

complaint cases having been instituted beyond the period of three years the

prosecution of the petitioners cannot be allowed to continue. The period of

limitation is to be computed from the date the alleged occurrence is said to

have taken place till the date the complaint is instituted and even in the said

circumstances the institution of the case was almost more than 9 years from

the date the Act was complained of. In the case of Sarah Mathew versus

Institute of Cardio Vascular Diseases by its Director Dr. K.M.

Cherian And Others reported in (2014) 2 SCC 62, it was held as

follows:

"51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale

which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC."

7. Therefore considering the totality of the circumstances enumerated

above it can be concluded that the complaint was preferred way beyond the

period of limitation prescribed and in such circumstances therefore the

learned Additional Chief Judicial Magistrate, Ranchi was precluded from

taking cognizance for the act complained of.

8. Accordingly, there being merit in these petitions, the same are

allowed and the entire criminal proceedings in connection with C-III Case

No. 182/2014, including the order dated 05.08.2014 passed by the learned

A.C.J.M., Ranchi, as well as the entire criminal proceedings in connection

with C-III Case No. 183/2014, including the order dated 05.08.2014 passed

by the learned A.C.J.M., Ranchi, whereby cognizance has been taken

against the petitioners for the offence punishable under Section 27(d) of the

Drugs & Cosmetics Act, 1940 are hereby, quashed and set aside.