Abhay Kumar Gupta vs The State Of Jharkhand
2023 Latest Caselaw 4039 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     (Criminal Revisional Jurisdiction)

                       Cr. Revision No.652 of 2023

Abhay Kumar Gupta, S/o Sri Ram Swarup Prasad Gupta, aged about- 45
years, Proprietor of M/s. Megha Enterprises, Govt. And general Order
Suppliers, R/o- Radium Road, Ranchi, PO, GPO & PS Kotwali, District
Ranchi                                             ..... ... Petitioner
                          Versus
The State of Jharkhand                        .... .... Opposite Party

                                ---------
                               PRESENT

CORAM :          HON'BLE MR. JUSTICE SUBHASH CHAND
                                 ------

For the Petitioner             : Mr. Sidhartha Roy, Advocate
For the State                  : Mr. Ravi Prakash, Spl. PP
                                 --------
                             JUDGMENT

CAV On 05th September 2023 Pronounced on 18 October 2023 Per, Subhash Chand, J.

The instant criminal revision is preferred on behalf of

petitioner, namely, Abhay Kumar Gupta against the order dated

08.05.2023 passed by the learned Principal Sessions Judge, Jamtara

whereby the application for the discharge moved on behalf of the

petitioner in connection with O.C.R Case No. 128 of 2015, corresponding

to Drugs and Cosmetics Act no. 1/2017, under section 27(C) and 28-A of

Drugs and Cosmetics Act, 1940 has been rejected.

2. The matrix of the complaint case is that on 16.08.2014 the

sample of "Neomet Oral Suspension" Batch No.1 manufactured dated

01/2012 expiry date 12/2014 by M/s. New Lab Industry, Ram Nagar,

Kurthaul, Patna was collected from the Sadar Hospital, Jamtara in Form

No. 17 that sample was sent for the test to Govt. Analyst, Jharkhand State

Drug Testing Laboratory, Namkum, Ranchi in Form No. 18. The sample of

the "Neomet Oral Suspension" Batch No.1 manufactured dated 01/2012

expiry date 12/2014 manufactured by M/s. New Lab Industry, Kurthaul,

Patna was declared ''not of standard quality" in respect of content and

labelling as mentioned in Govt. Analyst test report no. GA-583 dated

19.09.2014 under provisions of the Drugs and Cosmetics Act, 1940. A

copy of the test report was sent to the storekeeper namely, Mr. Rabindra

Kumar, Drug Store, Sadar Hospital, Jamtara vide office letter no. 49/14

dated 11.10.2014 and to the Civil Surgeon, Jamtara vide office letter no.

48/14 dated 10.11.2014 asked to produce the purchase invoice of "Neomet

Oral Suspension" Batch No.1 manufactured dated 01/2012 expiry date

12/2014. In compliance of the letter no. 49/14 dated 11.10.2014 the

storekeeper namely, Mr. Rabindra Kumar produced the purchase invoice

of M/s Megha Enterprises, Govt. and General Order suppliers, Radium

Road, Ranchi.

3. Vide office letter no. 56/14 dated 17.10.2014 M/s. Megha

Enterprises, Govt. and general orders suppliers, Radium Road, Ranchi was

asked to produce the purchase invoice of the drug in question and in the

compliance of the same the representative of M/s Megha Enterprises

produced the purchase invoice of M/s Abhishek Enterprises, B.N. Tower,

1st Floor, S.N. Road, Ranchi, Bill No. 211 dated 17.10.2012 and photocopy

of the licence and renewal of the shop produced by M/s Megha

Enterprises, Govt. and general orders suppliers, Radium Road, Ranchi.

Vide letter no.63/14 dated 11.11.2014 M/s Abhishek Enterprises, B.N.

Tower, 1st Floor, S.N. Road, Ranchi was requested to produce the purchase

invoice of drug in question. M/s Abhishek Enterprises denied to accept the

letter which was returned. Vide office letter no. 69/14 dated 18.11.2014

Civil Surgeon, Jamtara requested to produce regarding the document of

tender and bidding. In compliance of this letter, Civil Surgeon, Jamtara

produced the documents regarding tender and bidding. After grant

permission from the Director (Drugs), Directorate State Drugs Control

Administration, Jharkhand, Namkum, Ranch, inspection of M/s Abhishek

Enterprises, B.N. Tower, 1st Floor, S.N. Road, Ranchi was made alongwith

Local Drug Inspector and the inspection report was submitted to the

Director (Drugs), Directorate State Drugs Control Administration,

Jharkhand, Namkum, Ranchi. A sealed portion of the sample and copy of

the test report was also sent to Civil Surgeon, Jamtara in compliance for

the provision of Drug and Cosmetic Act, 1940 under section 23(4), 25(2)

and 18(a) because the manufacturer denied the manufacture the drug in

question. In vide office letter no. 109/15 dated 02.06.2015 requesting grant

approval for the prosecution and same was granted by the Director

(Drugs), Directorate State Drugs Control Administration, Jharkhand,

Namkum, Ranchi on 04.06.2015.

4. As per documents produced by the Civil Surgeon Office,

Jamtara and the correspondence from suppliers and manufacturing

companies (as per label), this had been established that "Neomet Oral

Suspension" the drug in question was supplied and distributed to the Drug

Store, Sadar Hospital, Jamtara making a false claim on the label. The

manufacturer M/s New Lab Industry, Ramnagar, Kurthal, Patna had denied

the manufacture of drug under his manufacturing license. M/s Abhishek

Enterprises, B.N. Tower, 1st Floor, S.N. Road, Ranchi did not produce any

evidence that could prove that the acquired drugs from the Manufacturer it

indicate that M/s Abhishek enterprises and M/s Megha enterprises

manufactured the spurious drug and distributed and supplied the same to

the drug store, Sadar Hospital, Jamtara. Hence the accused no.2 and 3 had

supplied and distributed spurious drug as defined under section 17-B and

18(a) of the said Drugs and Cosmetics Act, 1940 punishable under section

27(c) of the same act. The manufacturer was asked to produce the copy of

the manufacturing license, name of the proprietor, list of the distribution,

product approval and person responsible for manufacturing of "Neomet

Oral Suspension" drug in question. In compliance of the said letter, the

manufacturer of the drug in question had denied to manufacture and

distribution of the drug in question. Vide officer letter no. 92/15 dated

02.09.2015 and vide office reminder letter no. 95/15 dated 30.03.2015 to

the manufacturer as per label he has not produced the documents as per

demand. M/s. New Lab Industry, Ramnagar, Kurthal, Patna demand to

produce the said documents would help in the investigation. Under these

circumstances the prayer was made to launch the prosecution against the

accused to put them on trial and to punish the accused Abhay Kumar

Gupta, Proprietor of M/s Megha Enterprises, Nand Lal Prasad, Proprietor

of M/s Abhishek Enterprises and Shri Kedar Singh Proprietor of M/s New

Lab Industry, Ram Nagar, Kurthaul, Patna and with this complaint all the

letters and documents as stated were made enclosures as Annexure-1 to 20

of the complaint.

5. The petitioner accused Abhay Kumar Gupta, Proprietor of M/s

Megha Enterprises, Govt. and general order Suppliers move the

application for discharge before the court of the learned Chief Judicial

Magistrate, Jamtara and the same was rejected by the court below vide

order dated 08.05.2023.

6. Aggrieved from the impugned order dated 08.05.2023 the

instant criminal revision was directed on behalf of the petitioner/accused

on the ground that the learned court below had not taken into consideration

that the petitioner was never the manufacturer of the medicine and the firm

of the petitioner was only the supplier of the same. The learned court

below has also not taken into consideration that firm purchased the said

medicine from the firm of co-accused Abhishek Enterprises the same was

never denied by the said firm. As such the petitioner has not violated any

of the provisions of the Drugs and Cosmetics Act, 1940 as alleged. The

allegation has been made against the form of the petitioner namely,

M/s Megha Enterprises but the same was not arrayed as an accused as

such the complaint is also hit by the Section 34 of Drugs and Cosmetics

Act, 1940. The order of taking the cognizance and summoning the accused

was illegal as such all the subsequent orders including refusing to

discharge are also bad in the eye of law. Accordingly prayed to allow this

criminal revision and to set aside the impugned order passed by the

learned court below.

7. I have heard the learned counsel for the petitioner and learned

APP on behalf of the State and perused the material on record.

8. It is the settled legal proposition of law that the court while

framing the charge or disposing the discharge application has to take into

consideration only the allegations made in the FIR or in the complaint

itself and in case of a FIR case the investigation collected by the

investigating officer during investigation. While in case of a complaint

case in support of the allegations made in the complaint the document

annexed with the complaint in support of the complaint allegations and

also statement of the witnesses examined in support of the complaint

allegations, as the case may be, should be taken into consideration. If from

the same there are sufficient ground to proceed for the trial against the

accused persons then the court should decline to allow the discharge

application.

9. It is also the settled proposition of the law as laid down by the

Hon'ble Apex Court in catena of case law that while framing the charge

the court concerned should not divulge in the evidence. The appreciation

of the evidence or marshalling of the evidence is not permissible at this

stage. The court cannot conduct the mini trial while framing the charge by

appreciating the evidence on record.

10. Herein it would be pertinent to give the following legal

propositions of law as laid down by the Hon'ble Apex Court.

10.1 In "Sanghi Brothers (Indore) Private Limited v. Sanjay

Choudhary and others" (2008) 10 SCC 681, the Hon'ble Apex Court has

held at para-11, which reads as under:

"11. Sections 227, 239 and 245 deals with discharge from criminal charge. In State of Karnataka v. L. Muniswamy it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. The court has to see while considering the question of framing the charge as to whether the material brought on

record could reasonably connect the accused with the trial. Nothing more is required to be inquired into."

10.2 In "Rukmini Narvekar v. Vijaya Satardekar and others"

(2008) 14 SCC 1, the Hon'ble Apex Court has held at para-38, which reads

as under:

"38. In my view, there is no scope for the accused to produce any evidence in support of the submission made on behalf at the stage of framing charge only such material as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislation in wording Sections 227 and 228 the way in which they have to be worded as explained in Debendra Nath Padhi case by the larger Bench therein to which the very same question had been referred."

10.3 In "Palwinder Singh v. Balwinder Singh and others" (2008)

14 SCC 504, the Hon'ble Apex Court has held at para-13, which reads as

under:

"13. Having heard the learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of the evidence at the stage of framing charge itself. The jurisdiction of the learned Sessions Judge while exercising the power under Section 227 of the Code of Criminal Procedure is limited. Charge can be framed on the basis of strong suspicion. The Marshalling and appreciation of the evidence is not in domain of the Court at the point of time. This aspect of the matter has been considered by this Court in State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568."

10.4 In "Central Bureau of Investigation v. Mukesh

Pravinchandra Shroff and others" (2009) 16 SCC 429, the Hon'ble Apex

Court has held at para-2, which reads as under:

"2. By the impugned order, the Special Court has discharged the accused Raghunath Lekhraj Wadhwa, Jitendra Ratilal Shroff and Mukesh Pravinchandra Shroff from Special Case No. 4 of 1997. From a bare perusal of the impugned order, it would appear that the Special Court has virtually passed an order of acquittal in garb of the order of discharge. It is well settled that at the stage of framing of charge, what is required to be seen is as to whether there are sufficient ground to proceed against the accused. In our view, the Special Court was not justified in discharging the aforesaid accused persons."

11. From the perusal of the impugned order passed by the court

below it is found that the court below after having gone through the

allegations made in the complaint and also having gone through the

documents as enclosed with the complaint in support of the allegations

made passed the impugned order holding that there was sufficient material

against the accused/petitioner to frame the charge.

12. The first and foremost plea as raised by learned counsel for

the petitioner is that in this case the form M/s Megha Enterprises has not

been arrayed as a party and the complaint is barred by the provisions of

Section 34 of Drugs and Cosmetics Act, 1940.

13. Herein it would be relevant to reproduce the Section 34 of

Drugs and Cosmetics Act, 1940, which reads as under:

"34. Offences by companies.--(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and

was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.--For the purposes of this section--

(a) "company" means a body corporate, and includes a firm or other association of individuals; and

(b) "director" in relation to a firm means a partner in the firm."

14. From the perusal of the complaint itself it is found that

accused no.1 is Abhay Kumar Gupta the proprietor of the M/s Megha

Enterprises, Govt. and general orders suppliers, Radium Road, Ranchi

(drug licence no. RAN-104/99 in Form 20B, RAN-104A/99 in form 21B).

As such it is evident that in the complaint itself Mr. Abhay Kumar

Gupta has been impleaded as an accused in a capacity of the

proprietor of M/s Megha Enterprises, Govt. and general orders

suppliers, Radium Road, Ranchi. In view of the Explanation-A of

Section 34 of Drugs and Cosmetics Act, 1940 the company means a

body corporate and also included firm or other association of the

individuals. Herein the firm is the M/s Megha Enterprises, Govt. and

general orders suppliers, Radium Road, Ranchi and it was Abhay

Kumar Gupta who is the sole proprietor of the same has been

impleaded as an accused in this case in the capacity of the proprietor

of M/s Megha Enterprises, Govt. and general orders suppliers,

Radium Road, Ranchi the firm itself. As such, there is no violation of

any provisions of Section 34 of the Drugs and Cosmetics Act, 1940. In

view of the same, the plea raised by the learned counsel for the petitioner

is not found sustainable.

15. The learned counsel for the petitioner has also submitted that

the petitioner/accused who is proprietor of the M/s Megha Enterprises has

purchased the drug in questions "Neomet Oral Suspension" from Nand Lal

Prasad the proprietor of the Abhishek Enterprises which is evident from

the purchase memo of the drug which is also made part of the complaint

who is accused no.2 in the complaint.

15.1 It is further submitted by the learned counsel for the petitioner

that he is the supplier of the medicine which was supplied to him after

proper tender and bidding. Same was approved and the drug in question

was purchased from Abhishek Enterprises who had also purchased priorly

from the New Lab Industry, Ramnagar, Kurthaul, Patna which is the

manufacturing company. Simply the denial made by the New Lab

Industry, Ramnagar, Patna the manufacturer of the drug in question that

the drug in question was not manufactured by the New Lab Industry and

was never sold to Abhishek Enterprises. It cannot be presumed that the

spurious drug was prepared by the petitioner, the proprietor of M/s Megha

Enterprises or Nand Lal Prasad, the proprietor of M/s Abhishek

Enterprises.

16. The court below has held that M/s New lab industry,

Ramnagar, Kurthaul, Patna has denied the manufacturing of the drug in

question in compliance of the letter sent by the complainant. Mr. Abhay

Kumar Gupta the proprietor of M/s Megha Enterprises and Nand Lal

Prasad the proprietor of M/s Abhishek Enterprises who were supplier of

the medicine the same was found "not of standard quality" after testing

report from the Government of Jharkhand, State Drug Test Laboratory.

17. At the stage of framing charge the court concerned was

not to scrutinize the evidence minutely rather taking into

consideration the denial made by the manufacturing company that the

drug in question was never manufactured by M/s New lab industry,

Ramnagar, Kurthaul, Patna. The petitioner Abhay Kumar Gupta, the

proprietor of M/s Megha Enterprises cannot evade from his

responsibility in regard to the drug in question being of sub standard

who was the supplier of the same.

18. So far as the plea raised by learned counsel for the petitioner

that sampling of the drug in question was not made in view of the

mandatory provisions of section 23(4)(ii) and 23(4)(iii) has not been

followed as such the sampling itself was defective. This issue is to be

decided at the stage of trial. The same cannot be scrutinized by the

court concerned while framing the charge.

19. Admittedly it was the petitioner who had supplied the

drug in question to the drug storekeeper, drug store, Sadar Hospital,

Jamtara. As such in view of the denial of the alleged manufacturing

company without facing the trial it cannot be ascertained at the stage

of framing charge that the petitioner was not responsible for

supplying the drug in question which was spurious as the

manufacturing company, the label of the same was affixed thereon has

denied the manufacturing of the same who is also accused no.3 in the

complaint.

19.1 The Hon'ble Apex Court held in "State of Andhra Pradesh Vs.

Venu Veterinary Division And Another" (2009) 16 SCC 282:

"14. The High Court of Andhra Pradesh in its order totally overlooked the provisions contained in sub-section (1) of Section 19 of the Act which denies defence plea to the accused that "he was ignorant of the nature, substance and quality of the drug or the circumstances of its manufacture". The only defence available to him, as set out in clause (b) of sub-section (3), is that "he did not know and could not, with reasonable diligence have ascertained, that the drug or cosmetic in any way contravened the provisions of the Act". This defence plea, if at all available to the accused would be considered in accordance with sub-section (1) read with sub- section (3) of Section 19 of the Act only after the prosecution has led its evidence to prove its case. There is no prohibition in any of the provisions of the Act that a dealer cannot be prosecuted for sale of spurious drug or drug of below- standard quality without the manufacturer being made a co- accused. Such a conclusion by the High Court is not borne out from the provisions of the Act as discussed above."

20. As such the learned court below has committed no illegality

in rejecting the discharge application of the petitioner and the impugned

order passed by the court below needs no interference. Accordingly, this

criminal revision deserves to be dismissed.

21. This criminal revision petition is, hereby, dismissed and the

impugned order passed by the learned court below is hereby affirmed.

22. Let the copy of the judgment be communicated to the learned

court concerned.

(Subhash Chand, J.) Jharkhand High Court, Ranchi Dated: 18.10.2023 AFR RKM