Jharkhand High Court

Karnataka Antibiotic & ... vs The State Of Jharkhand on 20 October, 2021

      IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 3188 of 2017

      1. Karnataka Antibiotic & Pharmaceuticals Ltd., through its Managing
      Director, Sri Krishna Mohan Prasad, son of Suryabansh Sharma,
      resident of Dr. Rajkumar Road, 1st Block, Rajajinagar, Bangalore-
      560058, P.S. &           P.S.-Rajajinagar, District-Bangalore-560058
      (Karnataka)., registered office at Plot No. 14, Phase-II, Peenya,
      Bangalore, 560058, P.O. & P.S.-Rajajinagar, District-Bangalore-560058
      (Karnataka).
      2. B.U. Kamath, son of late Shivaraya Kamath, Deputy General
      Manager, Quality Assurance, Karnataka Antibiotics & Pharmaceuticals
      Ltd., Plot No. 14, Phase-II, Peenya, Bangalore, 560058, P.O. & P.S.-
      Rajajinagar, District-Bangalore-560058 (Karnataka).
                                                                 ..... ... Petitioners
                                   Versus
      1. The State of Jharkhand
      2. Sri Pranav Prabhat, Drug Inspector, Ranchi-4, Sadar Hospital
      Campus, Civil Surgeon Office Builiding, Ranchi, P.O.-G.P.O., P.S.-
      Kotwali, District-Ranchi.
                                                             ..... ...Opposite Parties
                                --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Deepak Kumar Prasad, Advocate.

      For the State             :        Mr. Rajneesh Vardhan, A.P.P.
                                ------
05/ 20.10.2021    Heard Mr. Deepak Kumar Prasad, learned counsel appearing

for the petitioners and Mr. Rajneesh Vardhan, learned A.P.P. 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. This application has been filed for the following reliefs:-

"For quashing of entire criminal proceeding in connection with C-III Case No. 14/2015 under Section 18(a)(i) and 18(a)(vi) of the Drug and Cosmetic Act, 1940, punishable under Section 27(d) of the Drug and Cosmetic Act, 1940, including the order taking cognizance dated 30.09.2015, passed by the learned Additional Chief Judicial Magistrate, Ranchi, whereby cognizance under Section 27(d) of the Drug and Cosmetic Act, 1940 has been taken against the petitioners."

4. Counsel for the petitioner submits that this case can be disposed of on the short point of non-compliance of the mandatory provisions of section 23(4) and 25(2) of the Drugs and Cosmetics Act, 1940 which is enough to quash the entire criminal proceedings against the petitioners including the order taking cognizance involved in the present

case. The counsel submits that the present case is fully covered by the judgment passed by the Hon'ble Supreme Court reported in (2018) 15 SCC 93 (Laborate Pharmaceuticals India Ltd. v. State of T.N.) and followed by this Court in Cr. M.P. No. 152/12 and Cr. M.P. No. 94/12.

5. He further submits that the complaint case was lodged by the O.P. No. 2 vide Memo No. 171 dated 03.09.2014, in which, it is alleged that the drug pertenol (Atenolol Tablets IP), B. No. 020054 Mfg. date July, 2004, Exp. Date April-2008 was taken from the Medical Store of Sadar Hospital, Ranchi on 19.02.2005 and sent to the Govt. Analyst, CDL, Kolkata for testing, the Govt. analyst vide Report No. 30-2/2005-P&P/JR- 94/805 dated 23.12.2005 examine the medicine and found the sample of pertenol does not confirm to IP'96 with respect to the test of Disintegration accordingly the Compliant Case No. C-III Case No. 14/2017 was lodged against the petitioner after ten years of cause of action on 03.09.2014.

6. The learned counsel submits that as per the provision contained under Section 23(4) and 25 (2) of the Drugs and Cosmetics Act, 1940, it is mandatory that one sample of the drug as well as the report is required to be sent to the manufacturer so that the manufacturer may have an opportunity to get the sample re-tested. Counsel submits that he has made specific statements in the present case that neither the report nor the sample were ever sent to the petitioners. Counsel submits that accordingly it is admitted fact from the records of this case that neither the sample nor its test report was ever sent to the petitioners in connection with the drug, for which, prosecution has been launched in the present case. Counsel submits that in such circumstances, the entire criminal proceedings including order taking cognizance is fit to be quashed as the mandatory provisions of Drugs and Cosmetics Act, 1940 has not been followed and great prejudice has been caused to the petitioners as at a later stage sample cannot be sent for testing which has admittedly expired. Counsel has relied upon judgment passed by the Hon'ble Supreme Court reported in (2018) 15 SCC 93 as well as orders passed by this Court in Cr. M.P. No. 152 of 2012 and Cr. M.P. No. 94 of 2012 to submit that under similar circumstances, the entire criminal proceeding has been quashed by the High Court as well as by the Hon'ble Supreme Court.

7. Counsel for the State while opposing the prayer submits that the company Karnataka Antibiotic and Pharmaceuticals Limited was informed about the test report No. 30-2/2005-P&P/JR-94/805 dated

23.12.2005, as soon as test report was received by Govt. Analyst, CDL, Kolkata and no request was made by the petitioners under section 25(3) and 25(4) of the Drug and Cosmetic Act, 1940.

8. After hearing the counsel for the parties and after considering the facts and circumstances of this case, this Court finds that the criminal case was initiated in connection with the drug, namely, pertenol (Atenolol Tablets IP), B. No. 020054 Mfg. date July, 2004, Exp. Date April-2008 and it is the specific case of the petitioners that neither the sample nor the report was sent to the petitioners and accordingly the entire criminal proceedings against the petitioners is vitiated. Thus it stands admitted that neither the sample nor the test report in connection with the drug for which the criminal case was launched against the petitioners, were not sent to the petitioners. Even in the complaint petition there is no mention regarding sending the sample or the report of the drug to the petitioners. In the aforesaid facts and circumstances, there appears to be non-compliance of the statutory provision, as contained in Section 23(4) and 25(2) of the Drugs and Cosmetic Act, 1940 so far as the petitioners are concerned. Such violation of the mandatory provisions of the said Act vitiates the entire criminal proceedings against the petitioners as it has caused great prejudice to the petitioners which cannot be cured at this point of time, as admittedly the shelf life of the drug has already expired.

9. This case is squarely covered by the judgment passed by the Hon'ble supreme court reported in the case of Laborate Pharmaceuticals India Ltd. v. State of T.N., reported in (2018) 15 SCC 93, at Para 8 and 9 it has been 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 as 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."

10. The aforesaid judgment has been followed by this Court in Cr. M.P. No. 94 of 2012 (M/s. Laborate Pharmaceuticals India Ltd. and another vs. State of Jharkhand and another) and also in Cr. M.P. No. 152 of 2012 (M/s Laborate Pharmaceuticals India ltd. And another vs. State of Jharkhand and another), wherein the criminal cases have been quashed on similar grounds.

11. As a cumulative effect of the aforesaid findings and in view of the aforesaid judicial pronouncements, the entire criminal proceeding as against the petitioners, in connection with C-III Case No. 14/2015, under Section 18(a)(i) and 18(a)(vi) of the Drug and Cosmetic Act, 1940, punishable under Section 27(d) of the Drug and Cosmetic Act, 1940, pending in the court of learned 1st Additional Judicial Commissioner, Ranchi, including the order taking cognizance dated 30.09.2015, whereby cognizance under Section 27(d) of the Drug and Cosmetic Act, 1940 by the learned Additional Chief Judicial Magistrate, Ranchi, so far it relates to the petitioners, are hereby, quashed.