Jharkhand High Court

M/S Brawn Laboratories Ltd. ... vs State Of Jharkhand Through The ... on 9 February, 2022

                                                    1                   Cr.M.P. No. 2259 of 2021


                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               Cr.M.P. No. 2259 of 2021
             M/s Brawn Laboratories Ltd. (Accused No.3), 13, New Industrial Township,
             Faridabad, through its Authorized Representative Mr. Raja Nand Jha, aged
             about 44 years, S/o Sh. Lala Nand Jha, resident of H. No. 984, Housing
             Board Colony, Sector-23, Faridabad, P.O. Faridabad NIT, P.S. Mujesas,
             Sector 22, Faridabad, Haryana-121005                  ... Petitioner
                                         -Versus-
             State of Jharkhand through the Drug Inspector, Ranchi-VI, Sadar Hospital
             Campus, Civil Surgeon Building, P.O. G.P.O. Ranchi, P.S. Lower Bazar,
             District- Ranchi (Jharkhand)                          ... Opposite Party
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             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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             For the Petitioner             : Mr. Sushant Mahapatra, Advocate
                                              Ms. Garima Gupta, Advocate
                                              Mr. Aruni Poddar, Advocate
                                              Mr. Ashish Kumar Verma, Advocate
                                              Mr. Shivam Kumar, Advocate
                                              Mrs. Priti Kumari, Advocate

For the Opposite Party-State : Mr. Ashwini Bhushan, A.C. To Sr.S.C.-III

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06/09.02.2022. Heard Mr. Sushant Mahapatra assisted by Ms. Garima Gupta, Mr. Aruni

Poddar, Mr. Ashish Kumar Verma, Mr. Shivam Kumar and Mrs. Priti Kumari,

learned counsel for the petitioner and Mr. Ashwini Bhushan, learned counsel

for the opposite party-State.

2. This petition has been taken 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 petition has been filed for quashing the order taking cognizance

and summoning order dated 30.09.2015 passed by the learned Additional

Chief Judicial Magistrate, Ranchi against the petitioner in connection with

Drugs and Cosmetics Case No.17 of 2015, filed by the opposite party under

Section 27(d) of the Drugs and Cosmetics Act, 1940, pending in the court of

the learned Additional Judicial Commissioner-II at Ranchi.

4. The case was instituted stating therein that on 23.12.2004, the then

Drug Inspector, Ranchi Shri Anjani Kumar took a sample of medicine

'Redimol Tablets' under B. No. RPB3L021, Mfg. Date 12/03, Expiry date

11/06 manufactured by M/s. Brown Laboratories, 13, New Industrial

Township, Faridabad-121001 for testing from M/s. Durga Medical Store, Bus

Stand, Moori, Ranchi and issued Form-17 dated 23.12.2004 to them. The

drug was declared as not of standard quality. The report by the Government

Analyst mentioned that "The sample does not conform to I.P. with respect

to Dissolution.

5. Mr. Sushant Mahapatra, learned counsel appearing for the petitioner

submits that the drug was declared as not of standard quality by the

Government Analyst, Central Drug Laboratories, Kolkata dated 25.08.2006.

He further submits that the report was submitted in the year 2006 and the

letter was received by the petitioner on 10.07.2007 and the complaint was

filed on 12.01.2015 i.e. after lapse of 9 years from the submission of the

report. He further submits that the cognizance has been taken under

Section 27(d) of the Drugs and Cosmetics Act, 1940. He also 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

further submits that the complaint case was filed after a lapse of nine years

which is wholly impermissible in law. Section 468 Cr.P.C. is a mandatory

statutory provision, therefore, the complaint filed was time barred and the

order taking cognizance dated 30.09.2015 is bad in law. Learned counsel for

the petitioner 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.

6. Mr. Ashwini Bhushan, learned counsel for the opposite party-State on

the other hand has opposed the prayer made by the petitioner and submits

that complaint petition clearly reveal the fact that the Drug which was

manufactured by the petitioner's company was not in conformation with the

standards required and therefore criminal prosecution was lodged against

the petitioner. He further submits that the test report was made available to

the petitioner. He tried to demolish the arguments of the learned counsel for

the petitioner by way of placing Annexure-15 of the petition, which is a

letter written by the Drug Inspector, Ranchi stating therein that the

complaint case was filed after receiving direction from the Joint Director

(Drugs), State Drugs Control Directorate. He further submits that vide

reasoned order dated 30.09.2015, the learned trial court has condoned the

delay.

7. It is an admitted fact as per the complaint petition itself that the

sample of medicine manufactured by the petitioner's company was taken on

23.12.2004. The report of the Government Analyst, Central Drug

Laboratories, Kolkata was dated 25.08.2006 which declared the medicine to

be sub-standard. The complaint case was instituted on 12.01.2015 and vide

order dated 30.09.2015, the cognizance was taken by the learned Additional

Chief Judicial Magistrate, Ranchi under Section 27(d) of the Drugs and

Cosmetics Act. It would thus appear that more than 9 years have passed

from the date of submission of the report of the sample 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. Section 473 Cr.P.C. clearly speaks

that the court may take the cognizance beyond the period of limitation if

reasonable explanation is there. Annexure-15 of the petition is only the

letter, which has been written by the Drug Inspector, Ranchi to the learned

court stating therein that after receiving direction from the higher official

the complaint case has been filed. The maximum punishment which can be

imposed under Section 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 case having been instituted beyond the period of three years the

prosecution of the petitioner 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."

8. 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, the learned

Additional Chief Judicial Magistrate, Ranchi was precluded from taking

cognizance for the act complained of that too when the delay has not been

disclosed in terms of Section 473 Cr.P.C.

9. In view of the above facts, there being merit in this petition, the same

is allowed and the impugned order dated 30.09.2015 passed by the learned

Additional Chief Judicial Magistrate, Ranchi in connection with Drugs and

Cosmetics Case No.17 of 2015 is hereby, quashed and set aside.