Jharkhand High Court
Virendra Sharma vs The State Of Jharkhand on 22 November, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.3278 of 2017
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Virendra Sharma, Director, M/s Aristo Pharmaceuticals Pvt Ltd.,
S/o Late Badri Rachha Sharma, R/O 702, A 22, Bakessh Shastri
Nagar, Andheri (West), Mumbai, P.O- Andheri, P.S.- Shastri Nagar,
District- Mumbai (Maharashtra)
... Petitioner
Versus
1. The State of Jharkhand
2. Shail Ambastha, Drug Inspector, Ranchi-V
... Opposite Parties
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For the Petitioner : Mr. Abhishek Thakur, Advocate
Mr. Sidhartha Roy, Advocate
Ms. Sandhya Sahay, Advocate
For the State : Mr. Shree Prakash Jha, Addl.P.P.
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash the entire criminal proceeding including the order dated
14.10.2014 passed by the Additional Chief Judicial Magistrate, Ranchi in
connection with C-III Case No.202 of 2014 whereby and where under
cognizance of the offence punishable under Section 27 d of The Drugs and
Cosmetics Act, 1940 has been taken inter alia against the petitioner and the said
case is now pending before the learned Additional Chief Judicial Magistrate,
Ranchi.
3. The brief facts of the case is that the Deputy Director (Medicine)-cum-
Regional Licensing Authority, South Chhota Nagpur Division, Ranchi-II
conducted an inspection and collected the sample of medicine- Megapen
capsule manufactured by M/s Aristo Pharmaceuticals Private Limited having
expiry date November, 2014. The sample of the same was sent to the Jharkhand
State Drug Testing Laboratory. As per the report, the same was found of "not
of standard quality" in respect of content of Cloxacillin "Not within the
prescribed limit" i.e. 45.29% only. The report was communicated to M/s Aristo
Pharmaceuticals Private Limited and M/s Aristo Pharmaceuticals Private
Limited made a request to get the sample for being sent for testing by Central
Drugs Laboratory. The complainant filed the official complaint citing the
petitioner as accused No.2 by his designation as Director but not mentioning
his name; with two other co-accused persons and requested the court to pass
appropriate order under Section 25 (4) of the Drugs and Cosmetics Act, 1940 to
give appropriate direction for the sample to be tested by the Central Drugs
Laboratory. The learned Additional Chief Judicial Magistrate, Ranchi
straightaway without passing any order for testing the sample of the medicine
by the Central Drugs Laboratory or any other laboratory, took cognizance of
the offence punishable under Section 27(d) of the Drugs and Cosmetics Act,
1940.
4. Learned counsel for the petitioner relies upon the judgment of the
Hon'ble Supreme Court of India relating to vicarious liability of persons in
charge of the conduct of the business of a company as envisaged in Section 141
of the Negotiable Instruments Act, 1881 in the case of S.M.S. Pharmaceuticals
Ltd. vs. Neeta Bhalla & Another reported in AIR 2005 SC 3512, paragraph-20
(a) of which reads as under:-
"20. In view of the above discussion, our answers to the questions
posed in the Reference are as under:
(a) It is necessary to specifically aver in a complaint under
Section 141 that at the time the offence was committed, the
person accused was in charge of, and responsible for the
conduct of business of the company. This averment is an
essential requirement of Section 141 and has to be made in a
complaint. Without this averment being made in a
complaint, the requirements of Section 141 cannot be said to
be satisfied."
and submits that though the same has been passed in connection with
the provisions of law relating to Section 141 of the Negotiable Instruments Act,
1881 but as Section 34 of the Drugs and Cosmetics Act, 1940 is in pari materia
with Section 141 of the Negotiable Instruments Act, 1881 and the company
namely M/s Aristo Pharmaceuticals Private Limited has been arrayed as an
accused also. So, apparently the petitioner has been made accused in terms of
Section 34 of the Drugs and Cosmetics Act, 1940 and submits that in order to
make the petitioner an accused; it was necessary to specifically aver in the
complaint under Section 34 of the Drugs and Cosmetics Act, 1940 that at the
time the offences were committed, the petitioner of this Criminal Miscellaneous
Petition, who is the accused person of the said case, was in-charge of and
responsible for the conduct of the business of the drugs seized but as there has
been absolutely no allegation regarding the same; hence, it is submitted that the
continuation of this criminal proceeding against the petitioner will amount to
abuse of process of law.
5. Learned counsel for the petitioner next relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Laborate Pharmaceuticals India
Ltd. & Others vs. State of Tamil Nadu (With Interim Relief and Office
Report) reported in 2017 0 Supreme (SC) 827 and submits that in that case as
the part of the sample was not sent to the manufacturer, as required under
Section 23 (4) (iii) of the Drugs and Cosmetics Act, 1940, the Hon'ble Supreme
Court of India observed that the valuable right of accused for re-analysis vested
under the Drugs and Cosmetics Act, 1940 having been violated and having
regard to the possible self-life of the drug, the Hon'ble Supreme Court of India
was of the view that continuation of the prosecution would be a dead
prosecution and quashed the criminal prosecution. It is next submitted that in
this case because of not passing any order for sending the sample for analysis
by the Central Drugs Laboratory, by the learned Additional Chief Judicial
Magistrate even after the request made by the manufacturer, thereby inter alia
the petitioner has been deprived of the valuable right of re-analysis vested
under the Act. Hence, it is submitted that on this score also, the prosecution,
being bad in law and therefore the same be quashed and set aside.
6. Learned counsel for the petitioner further relies upon the judgment of
the Co-ordinate Bench of this Court in the case of Krishna Nand Shastri @ K.N.
Shastri and Others vs. The State of Jharkhand, through Inspector of Drugs,
Deoghar passed in Cr.M.P. No. 1525 of 2014 dated 03.05.2023 and submits that
in that case, the Co-ordinate Bench relied upon the judgment of the Hon'ble
Supreme Court of India in the case of Udai Shankar Awasthi vs. State of U.P.
& Another reported in (2013) 2 SCC 435, paragraph-40 of which reads as
under:-
"40. The Magistrate had issued summons without meeting the
mandatory requirement of Section 202 CrPC, though the appellants
were outside his territorial jurisdiction. The provisions of Section
202 CrPC were amended vide the Amendment Act, 2005, making it
mandatory to postpone the issue of process where the accused
resides in an area beyond the territorial jurisdiction of the
Magistrate concerned. The same was found necessary in order to
protect innocent persons from being harassed by unscrupulous
persons and making it obligatory upon the Magistrate to enquire
into the case himself, or to direct investigation to be made by a
police officer, or by such other person as he thinks fit for the purpose
of finding out whether or not, there was sufficient ground for
proceeding against the accused before issuing summons in such
cases."
and submits that the Co-ordinate Bench of this Court was of the view
that there is no exception to the Section 202 of the Code of Criminal Procedure
even in the Government complaint and as the petitioner of the Criminal
Miscellaneous Petition is residing outside the jurisdiction of the learned
Additional Chief Judicial Magistrate, Ranchi, as admittedly in the complaint
itself his address has been shown in the State of Madhya Pradesh (M.P.) so, the
mandatory provisions of Section 202 of the Code of Criminal Procedure
required the Additional Chief Judicial Magistrate, Ranchi to postpone issue of
process against the petitioner and either to enquire into the case himself or
direct an investigation to be made by the police officer or by such other persons
as he thinks fit, but having not done so, instead the learned Additional Chief
Judicial Magistrate, Ranchi, having straightaway taking cognizance; the learned
Additional Chief Judicial Magistrate, Ranchi has committed a grave illegality.
Hence, it is submitted that the prayer, as prayed for in the instant Criminal
Miscellaneous Petition, be allowed.
7. Learned Addl.P.P. appearing for the State on the other hand relies upon
the judgment of the Hon'ble Supreme Court of India in the case of Dinesh B.
Patel & Others vs. State of Gujarat & Another reported in (2010) 11 SCC 125,
paragraph-10 of which reads as under:-
"10. Under the peculiar circumstances of this case and realising
the seriousness of the allegations, we would not take a technical view
based on pleadings in the complaint. Mr Raichura contended that as
per the settled law by this Court in complaints under Section 138 of
the Negotiable Instruments Act, 1881 against a company and its
directors also specific averment about the active role of directors in
running the company has to be made, failing which the directors
cannot be proceeded against. The same logic should apply even in the
present case. We cannot agree. Firstly, the language of Section 34(2)
of the Act substantially differs from the language of Section 141 of
the Negotiable Instruments Act. Secondly, here we are dealing with
an offence which has a direct impact on public health. We, therefore,
would choose not to interfere with the order of the High Court. It
will be open for the Directors to show to the trial court that they had
nothing to do with the manufacturing process and, therefore, they
should not be held liable under Section 34(2) of the Act." (Emphasis
supplied)
and submits that therein the Hon'ble Supreme Court of India inter alia
while dealing with the ratio of the judgments in respect of Section 141 of the
Negotiable Instruments Act, 1881 vis-à-vis Section 34 of the Drugs and
Cosmetics Act, 1940 inter alia did not agree with the proposition to apply the
ratio of Section 141 of the Negotiable Instruments Act, 1881 to the complaint
filed under the penal provisions of the Drugs and Cosmetics Act, 1940 inter alia
on the ground that the offences under the Drugs and Cosmetics Act, 1940 have
a direct impact on public health. Hence, the contention of the petitioner is that
the ratio of the principle of law relating to Section 141 of the Negotiable
Instruments Act, 1881 to the Section 34 of the Drugs and Cosmetics Act, 1940,
has no leg to stand. Hence, it is submitted that this Criminal Miscellaneous
Petition, being without any merit, be dismissed.
8. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, it is pertinent to mention
here that unlike the case of State of N.C.T. of Delhi through Prosecuting
Officers, Insecticides, Government of NCT, Delhi vs. Rajiv Khurana reported
in (2010) 11 SCC 469 wherein the Hon'ble Supreme Court of India applied the
ratio of the judgment of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla &
Another (supra) & Other cases in terms of provisions of Section 141 of the
Negotiable Instrument Act, 1881 to the prosecution under the penal provisions
of the Drugs and Cosmetics Act, 1940, in view of the pari materia provision in
Section 34 of the Drugs and Cosmetics Act, 1940 and held that it is imperative
to specifically aver in the complaint that the accused was in charge of and was
responsible for the conduct of the business of the company. Unless clear
averments are specifically incorporated in the complaint, the respondent cannot
be compelled to face the rigmarole of a criminal trial; so, this is a fit case where
the provisions of Section 141 of the Negotiable Instrument Act, 1881 is to be
applied to Section 34 of the Drugs and Cosmetics Act, 1940. Otherwise also
though a request was made for sending the sample to the Central Drugs
Laboratory for its re-analysis but such prayer has not been considered by the
learned Additional Chief Judicial Magistrate, Ranchi but still the learned
Additional Chief Judicial Magistrate, Ranchi having taken the cognizance; in
view of the judgment of the Hon'ble Supreme Court of India in the case of
Laborate Pharmaceuticals India Ltd. & Others vs. State of Tamil Nadu (With
Interim Relief and Office Report) (supra); this Court is of the considered view
that as the valuable right of the accused for re-analysis vested under the Act has
been violated and more than about a decade since the expiry date has already
elapsed as well as the expiry date of the drug concerned is over since long, so,
continuation of the prosecution will be a dead prosecution. Further, the
complaint has been filed against the Director which is a post and is not a legal
entity. No person has been named as Director in the complaint. So, on this score
also, the complaint is not maintainable against the accused No.2 of the
complaint.
9. Further, the learned Additional Chief Judicial Magistrate, Ranchi has
failed to apply the mandatory requirements of law under Section 202 of the
Code of Criminal Procedure even though admittedly, the petitioner was
residing outside the jurisdiction of the learned Additional Chief Judicial
Magistrate, Ranchi being a resident of State of Madhya Pradesh as cited in the
complaint, hence, this Court is of the considered view that continuation of this
criminal proceeding against the petitioner will amount to abuse of process of
law. Therefore, this is a fit case where the entire criminal proceeding including
the order dated 14.10.2014 passed by the Additional Chief Judicial Magistrate,
Ranchi in connection with C-III Case No.202 of 2014 which is now pending
before the learned Additional Chief Judicial Magistrate, Ranchi, be quashed
and set aside qua the petitioner named above only.
10. Accordingly, the entire criminal proceeding including the order dated
14.10.2014 passed by the Additional Chief Judicial Magistrate, Ranchi in
connection with C-III Case No.202 of 2014 which is now pending before the
learned Additional Chief Judicial Magistrate, Ranchi, is quashed and set aside
qua the petitioner named above only.
11. In the result, this Criminal Miscellaneous Petition stands allowed.
12. In view of the disposal of the instant Criminal Miscellaneous Petition,
pending interlocutory application, if any, stands disposed of being infructuous.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 22nd of November, 2024
AFR/ Animesh
