Jharkhand High Court

Kunj Bihari Goyal vs The State Of Jharkhand on 8 January, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                                             1                           Cr.M.P. No.2930 of 2022




                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No. 2930 of 2022


            Kunj Bihari Goyal, aged about 50 years, son of Banjrang Lal Agarwal,
            resident of 4E Shewangni Apartment, Hazaribagh Road, P.O. + P.S.-
            Lalpur, Dist.- Ranchi, Proprietor of J.R. Pharma, By Pass Lane, Cart
            Saria Road, Ranchi
                                                        ....               Petitioner


                                           Versus

            The State of Jharkhand
                                                        ....                  Opp. Party

                                           PRESENT

                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioner : Mr. Rakesh Kr. Singh, Advocate : Mr. Akshay Verma, Advocate For the State : Mrs. Rakesh Ranjan, Addl. P.P. .....

By the Court:-

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the

jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to

quash the entire criminal proceeding initiated against the petitioner

in Drugs and Cosmetic Case No.188 of 2010 including the order

taking cognizance dated 29.04.2010 passed by the learned Chief

Judicial Magistrate, Ranchi whereby and where under, cognizance

has been taken inter alia against the petitioner under Section 18 (a) (i)

(vi), 18 (b) of the Drugs and Cosmetics Control Act, now pending in

the court of A.J.C.-II, Ranchi.

3. It is submitted by the learned counsel for the petitioner that there is

no Act named as Drugs and Cosmetic Control Act and the learned

Chief Judicial Magistrate, Ranchi was referring to Drugs and

Cosmetics Act, 1940 and inadvertently, mentioned a wrong Act. It is

next submitted by the learned counsel for the petitioner that though

the petitioner has taken several grounds but the petitioner confines

to the sole ground that there has not been compliance of Section 23

(4) and 25 (2) of Drugs and Cosmetics Act, 1940 by the inspector by

not sending the third sample to the producer of the alleged spurious

drugs, whose name has been disclosed under Section 18 (a) of the

Drugs and Cosmetics Act, 1940 as the manufacturer of the drug.

Relying upon the judgment of Hon'ble Supreme Court of India in the

case of Laborate Pharmaceuticals India vs. State of Tamil Nadu

reported in (2018) 15 SCC 93, paragraph nos. 8 and 9 of which reads

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." (Emphasis supplied)

as also the judgment of coordinate Bench of this Court in the case

of M/s Laborate Pharmaceuticals India Ltd. who is the manufacturer

of the drug in question and who is the co-accused of this case and

against whom the entire criminal proceeding of the said C-III Case

No. 188 of 2010 including the order taking cognizance dated

29.04.2010 has been quashed.

4. It is next submitted by the learned counsel for the petitioner that

though the complaint has been lodged pursuant to the complaint

received by the complainant from Central Drug Laboratory, Calcutta

contained in report No. 1896 dated 04.11.2009 in connection with the

drug namely Ergometrine Meleate I.P. Tab. Batch No. 08ET-03,

expiry date, December, 2010, the sample was received on 16.11.2009

and the prosecution was launched on 28.04.2010 under Section 18 (a)

(i) (vi), 18 (b) and 27 (d) of Drugs and Cosmetics Act, 1940 and the

petitioner namely J.R. Pharma received the said drug by S.R.M.

Enterprises, Ranchi who is the original co-accused- M/s. Laborate

Pharmaceuticals India Limited and was undisputedly the

manufacturer of the drug. It is next submitted by the learned counsel

for the petitioner that keeping in view the allegations made in the

complaint, when the prosecution cannot stand against the

manufacturer, the same cannot stand against the petitioner as well,

as the petitioner admittedly is not the manufacturer of the drugs and

he supplied the drugs which he obtained undisputedly from the

manufacturer of the drugs. It is further submitted by the learned

counsel for the petitioner that 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 the opportunity to

get the sample retested. Drawing attention of this Court to the order

dated 16.07.2019 passed in Cr.M.P. No.75 of 2012 by a coordinate

Bench of this Court in which the entire criminal proceeding

including the order taking cognizance has been quashed against the

co-accused manufacturer of the drug; it is submitted by the learned

counsel for the petitioner that undisputedly, the fact remains that the

third sample were never sent to the manufacturer. Hence, it is

submitted that the entire criminal proceeding initiated against the

petitioner in Drugs and Cosmetic Case No.188 of 2010 including the

order taking cognizance dated 29.04.2010 passed by the learned

Chief Judicial Magistrate, Ranchi be quashed and set aside.

5. Learned counsel for the State fairly submits that this case is covered

by the Judgment of coordinate Bench of this Court in Cr.M.P. No. 75

of 2012.

6. Having heard the submissions made at the Bar and after going

through the materials in the record, the undisputed fact remains that

the main allegation is against the manufacturer of the drug for

having produce drugs not of standard quality and misbranded,

adulterated or spurious and the same having been manufactured for

sale or for distribution in contravention of the provision of Drugs

and Cosmetics Act or the Rule made thereunder.

7. The criminal case was initiated in connection with the drug namely

Ergometrine Meleate I.P. Tab., the details of which has already been

mentioned in the foregoing paragraphs of this Judgment. From the

materials in the record, it remain undisputed that neither the third

sample nor the report was sent to the manufacturer and in the

absence of the same, the entire criminal proceeding inter alia against

the manufacturer has been quashed.

8. Now in this case, keeping in view the nature of allegation made in

the complaint, since the main allegation is against the manufacturer

of the drugs and undisputedly the petitioner supplied the drug

handed over by the manufacturer to the firm of the petitioner

through the firm S.R.M. Enterprises, Ranchi hence, this Court has no

hesitation in holding that the continuation of the criminal proceeding

against the petitioner when the same has already been quashed

against the manufacturer of the drugs will amount to abuse of

process of law and this is a fit case where the entire criminal

proceeding initiated against the petitioner in Drugs and Cosmetic

Case No.188 of 2010 including the order taking cognizance dated

29.04.2010 passed by the learned Chief Judicial Magistrate, Ranchi be

quashed and set aside.