Jharkhand High Court
M/S Shine Pharmaceuticals Ltd. ... vs The State Of Jharkhand on 11 September, 2023
1 W.P. (Cr.) No. 10 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 10 of 2023
1. M/s Shine Pharmaceuticals Ltd. through one of its Managing Director
namely Shri Samir Chakraborty
2. Pradeep Agarwal @ Pradeep Kumar Agarwal @ Pradeep Vishwambar
Agarwal ... Petitioners
-Versus-
1. The State of Jharkhand
2. Smt. Pratibha Jha, Drug Inspector, Ranchi ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Nitin Kumar Pasari, Advocate
Ms. Sidhi Jalan, Advocate
Mr. Shubham Gurung, Advocate
Mr. Gourav Kaushalesh, Advocate
For the State : Mr. Devesh Krishna, S.C. (Mines)-III
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06/11.09.2023 Heard Mr. Nitin Kumar Pasari, learned counsel for the petitioner and
Mr. Devesh Krishna, learned counsel for the State.
2. This petition has been filed for quashing the entire criminal
proceedings including the order taking cognizance dated 21.09.2015 passed
in Drug and Cosmetic Case No.190 of 2015, whereby, the learned court has
been pleased to take cognizance under Section 27(d) of the Drugs and
Cosmetic Act, 1940 against the petitioners, pending in the court of the
learned Additional Judicial Commissioner-II, Ranchi.
3. The complaint petition was filed alleging therein that on 12.03.2007,
inspection was carried out by Sri Arun Kumar, the then Drug Inspector,
Ranchi-I in M/s A.R. Medical Agencies and sample of ALORA 0.25, B.
No.03A57, manufacturing date September, 2006, expiry date August, 2010,
manufactured by the petitioners company was collected for test and
analysis in Form-17. It was alleged that the Government Analyst, Central
Drug Testing Laboratory, Kolkata in the report dated 05.11.2009 declared
the medicine to be sub-standard. Vide memo dated 19.11.2009, M/s A.R.
Medical Agencies was provided with the original copy of the test report in
Form-13 and was directed to stop the distribution of the said medicine and
was asked to provide Purchase Form. Vide the said letter, the petitioners
company was informed about sub-standard medicine and was asked to
collect one part of the sample from the office. M/s A.R. Medical Agencies
vide memo dated 04.01.2010 informed that the said medicine was supplied
by the petitioners company vide Form No. STN-997/06-07 dated 06.01.2007
and STN-1113/06-07 dated 10.02.2007. It was alleged that the petitioners
company has committed offence under Section 27(d) of the Drugs and
Cosmetic Act, 1940.
4. Mr. Nitin Kumar Pasari, learned counsel for the petitioners submits
that the prosecution report was submitted after lapse of more than five
years from the date of collection of sample. He further submits that the
learned court has been pleased to take cognizance under Section 27(d) of
the Drugs and Cosmetic Act, 1940 vide order dated 21.09.2015. He submits
that the inspection was made on 12.03.2007 and the report of the
Government Analyst was dated 05.11.2009, whereas, the case was filed on
27.08.2014 after lapse of more than five years. He further submits that in
view of Section 468 Cr.P.C., the case is barred by time as the punishment
under Section 27(d) of the said Act is prescribed only for two years. He
submits that the case of the petitioners is fully covered in view of the
judgment passed by the Hon'ble Supreme Court in Sarah Mathew v.
Institute of Cardio Vascular Diseases by its Director Dr. K.M.
Cherain and others; [(2014) 2 SCC 62]. He relied upon paragraph 51 of
the said judgment, which is quoted hereinbelow:
"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."
5. On the other hand, Mr. Devesh Krishna, learned counsel for the
respondent-State submits that the learned court has looked into the petition
filed under Section 473 Cr.P.C. and by way condoning the delay, the learned
court has taken cognizance against the petitioners. He submits that there is
no illegality in the order taking cognizance. He further submits that since
the medicine is of sub-standard and in view of that, the learned court has
rightly taken cognizance against the petitioners.
6. In view of the above submission of the learned counsel for the
parties, the Court has gone through the materials on record and finds that
admittedly the inspection was made on 12.03.2007 and the report of the
Government Analyst was dated 05.11.2009, whereas, the case was filed on
27.08.2014 after lapse of more than five years and the learned court has
been pleased to take cognizance against the petitioners under Section 27(d)
of the Drugs and Cosmetic Act, 1940 vide order dated 21.09.2015. The
punishment under Section 27(d) of the Drugs and Cosmetic Act, 1940 is
prescribed only for two years and if such a situation is there, Section 468
Cr.P.C. will come into play. Further, extension under Section 473 Cr.P.C. may
be there, however, the delay is required to be properly explained. In the
case in hand, only the case of extension was made on the ground that the
Drug Inspector was advised by the higher authority to file the complaint.
There is no proper explanation. In view of that, the explanation is bad in
law.
7. In view of the above facts and considering the judgment passed by
the Hon'ble Supreme Court in Sarah Mathew (supra), the entire criminal
proceedings including the order taking cognizance dated 21.09.2015 passed
in Drug and Cosmetic Case No.190 of 2015, pending in the court of the
learned Additional Judicial Commissioner-II, Ranchi are quashed.
8. Accordingly, this petition is allowed and disposed of.
9. Interim order, if any granted by this Court, stands vacated.
(Sanjay Kumar Dwivedi, J.)
Ajay/
