Jharkhand High Court
Subhash Nair vs The State Of Jharkhand ... Opposite ... on 24 October, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2239 of 2018
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Subhash Nair, Manager, QC, M/s Aristo Pharmaceuticals Pvt. Ltd.,
aged about 49 years, S/o Late K.S. Nair, having his office at survey
no. 371, Kunbar falia, Village Dabhel, Nani Daman 396210, Daman
(U.T) also having office at Plot no. 208 new industrial area no.2,
Mandieep, P.O. & P.S. Mandieep District- Raisen (M.P)
... Petitioner
Versus
The State of Jharkhand ... Opposite Party
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For the Petitioner : Mr. Sidhartha Roy, Advocate
Mr. Abhishek Kumar, Advocate
Ms. Sandhya Sahay, Advocate
For the State : Mr. Bishwambhar Shastri, 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 Addl. Chief Judicial Magistrate, Ranchi in connection
with C-III Case No.202 of 2014 whereby and where under cognizance of offence
punishable under Section 27(d) of Drugs and Cosmetics Act, 1940 has been
taken inter alia against the petitioner by the learned Addl. 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 Pvt. Ltd. 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 Pvt. Ltd. M/s Aristo Pharmaceuticals Pvt. Ltd. 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.1
with other two 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 Addl. Chief Judicial Magistrate, Ranchi straightaway,
without following 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 Pvt. Ltd. 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 by the petitioner of this Criminal Miscellaneous
Petition, who was the accused person of the said case, that he 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
because of 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 ACJM, even after the
request made by the manufacturer, thereby, inter alia the petitioner has been
deprived of a valuable right of re-analysis vested under the Act. Hence, it is
submitted that on this score also, the prosecution, being bad in law, 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 the coordinate bench was of the view that there is no exception to
the Section 202 of the Code of Criminal Procedure even in Government
complaint and as the petitioner of the Criminal Miscellaneous Petition is
residing outside the jurisdiction of the learned Addl. Chief Judicial Magistrate,
Ranchi as admittedly, he is residing in the State of Madhya Pradesh, so, the
mandatory provisions of Section 202 of the Code of Criminal Procedure
required the Addl. Chief Judicial Magistrate, Ranchi to postpone issue of
process against the petitioner and either enquired 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 ACJM, having
straightaway taking cognizance; the Addl. Chief Judicial Magistrate, Ranchi
was also committed a grave illegality. Hence, it is submitted that the prayer, as
prayed for in this 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 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 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 submissions made at the Bar and after carefully going
through the materials available in the record, unlike the case of State (N.C.T. of
Delhi) vs. Rajeev Khurana reported in (2010) 11 SCC 469 wherein the Hon'ble
Supreme Court of India applied the ratio 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 wherein the accused was a
Director, in this case, the undisputed fact remains that the accused person is
Manager, Quality Control of M/s Aristo Pharmaceuticals Pvt. Ltd. at the
relevant time and thus was that directly responsible for the quality control of
the drugs produced by the company. Hence, keeping in view the observation
made by the Hon'ble Supreme Court of India in the case of Dinesh B. Patel vs.
State of Gujarat & Another (supra), this Court is of the considered view that
keeping in view the nature of allegation of sub-standard quality of the medicine
concerned, the sample of which is taken, certainly the complainant was the
Manager of Quality Control, itself is sufficient to indicate that he was In-charge
and was responsible and liable to the company for the purpose of quality
control of the drugs produced by M/s Aristo Pharmaceuticals Pvt. Ltd. Hence,
this limb of argument of the petitioner has no leg to stand but so far as the fact
that 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 Addl. Chief Judicial Magistrate, Ranchi but still the learned Addl. 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 this drug concerned is over since long, so,
continuation of the prosecution will be a dead prosecution. Hence, this coupled
with the fact that the learned Addl. Chief Judicial Magistrate, Ranchi 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 Addl. Chief Judicial Magistrate, Ranchi
being a resident of State of Madhya Pradesh; 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 Addl.
Chief Judicial Magistrate, Ranchi in connection with C-III Case No.202 of 2014,
be quashed and set aside qua the petitioner only.
9. Accordingly, the entire criminal proceeding including the order dated
14.10.2014 passed by the Addl. Chief Judicial Magistrate, Ranchi in connection
with C-III No.202 of 2014, is quashed and set aside qua the petitioner only.
10. In the result, this Criminal Miscellaneous Petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 24th of October, 2024
AFR/ Saroj
