M/S Samson Laboratories Pvt Ltd. ... vs State Of Karnataka
2021 Latest Caselaw 5442 Kant

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        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

    DATED THIS THE 4TH DAY OF DECEMBER 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

       CRIMINAL PETITION No.201370/2017

BETWEEN:

1. M/S SAMSON LABORATORIES PVT., LTD.,
   152, SANSIWALA, BAROTIWALA, DIST. SOLAN
   HIMACHAL PRADESH (HP)-174103

2. MR. HARISH GOYAL S/O J.R. GOYAL
   ONE OF THE DIRECTORS
   M/S. SAMSON LABORATORIES PVT., LTD.,
   R/O FLAT NO.A-301
   DURGA PARVATI APARTMENT-GH-5
   MDC (MANSADEVI COMPLEX)
   SECTOR-6, PANCHKULA
   HARYANA STATE-130116
                                          ... PETITIONERS
(BY SRI SANJAY A. PATIL, ADVOCATE)

AND:

STATE OF KARNATAKA THROUGH
THE ASSISTANT DRUGS CONTROLLER-I,
O/O. ASSISTANT DRUGS CONTROLLER
VIJAYAPURA CIRCLE, VIJAYAPURA-586101
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI
                                          ... RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE, PRAYING TO QUASH THE
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IMPUGNED ORDER DATED 05.03.2015 PASSED BY I-
ADDITIONAL CIVIL JUDGE AND JMFC-I COURT AT VIJAYAPURA
IN C.C.NO.752/2015 AND FURTHER PROCEEDINGS ON ITS FILE.

     THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:

                         ORDER

Heard the learned counsel appearing for the

petitioners and the learned High Court Government

Pleader appearing for the respondent-State.

2. This petition is filed under Section 482 of

Cr.P.C., praying this Court to quash the impugned order

dated 05.03.2015 passed by I-Additional Civil Judge and

JMFC-I Court at Vijayapura in C.C.No.752/2015 and

further proceedings on its file.

3. Factual matrix of the case is that the

respondent herein filed private complaint before the

learned Magistrate and the learned Magistrate dispensed

recording sworn statement of the complainant since the

complainant is government servant i.e., Assistant Drugs

Controller. On presentation of the complaint, the learned

Magistrate after dispensing the sworn statement, issued

process against the petitioners. Hence, the present

petition is filed.

4. The learned counsel appearing for the

petitioners has approached this Court by invoking

Section 482 of Cr.P.C., on three grounds. The first

ground urged by the learned counsel is that there is

violation of Section 25(3) of the Drugs and Cosmetics

Act, 1940 (for short 'the Act') as the petitioners' firm

had chosen to controvert the Government Analyst

Report within 28 days of receipt of copy of the Analyst

report. The accused company had received report of the

government analyst through registered post

acknowledgement due on 23.03.2012 and within 28

days i.e., on 12.04.2012 itself, the petitioners firm has

made a request to the respondent-authorities to send

counter part of the above sample so as to get it tested

by the Central Drug Laboratory, but the respondent-

authorities has not acted upon the request of the

petitioners. Thus, the valuable rights of the petitioners

are lost and the petitioners have been deprived of that

right. The second ground urged by the learned counsel

is that there is violation of Section 23 of the Act as the

portion of the said sample of the drug is not sent or

intimated to its manufacturer by the respondent-

authorities as the name and particulars of the

manufacture of the drug was also disclosed under

Section 18(a) of the Act. Hence, the said right is also

lost. The learned counsel also submits that the learned

Magistrate while taking cognizance also has nowhere

mentioned that the cognizance is taken and

mechanically issued summons/process against the

petitioners herein. The other ground urged by the

learned counsel for the petitioners is that petitioner No.2

is only a Director of the company and the Technical

Director cum Manufacturing Chemist who is directly

responsible has not been arrayed as accused by the

respondent-authorities and on that ground, he contends

that the proceedings initiated is liable to be quashed.

He also submits that the local vendor is also not made

as party.

The learned counsel regarding the ground that

though the petitioners' firm chose to controvert

Government Analyst Report within 28 days of receipt of

copy of Analyst Report and requested the respondent-

authorities to send sample to get it tested in the Central

Drug Laboratory, the respondent-authorities has not

acted upon the same, thereby the petitioners have lost

their right, he has relied upon the judgment of the

Hon'ble Apex Court in the case of M/s. Medicamen

Biotech Ltd., and Anr., vs. Rubina Bose, Drug

Inspector reported in 2008 AIR SCW 2201.

The learned counsel also contends that the

petitioners are residing at Himachal Pradesh and the

complaint is filed at Vijaypur in Karnataka State. Hence,

the learned Magistrate ought not to have issued

summons to the petitioners who are residing in

Himachal Pradesh and the learned Magistrate has not

complied Section 202(1) of Cr.P.C. In support of his

arguments, the learned counsel has relied upon the

order passed by this Court in the case of Sri Jasbir

Singh Anand vs. State of Karnataka in Criminal

Petition No.6213/2016 disposed of on 26.04.2019

wherein in similar set of facts and circumstances, this

Court allowed the petition and remanded the matter.

5. Per contra, the learned High Court

Government Pleader appearing for the respondent-State

submits that the drug which is manufactured and

marketed was not having standard prescription and

hence, the petitioners have committed the offence.

Therefore, the learned Magistrate dispensing the sworn

statement issued process and the impugned order does

not require any interference.

6. Having heard the arguments of the learned

counsel appearing for the petitioners, it is not in dispute

that the petitioners herein are the residents of Himachal

Pradesh and not residing within the jurisdiction of the

Court in which the complaint is filed. On perusal of the

records, I find force in the contention of the learned

counsel for the petitioners that there is no compliance of

Section 202 of Cr.P.C.

7. The other contention of the learned counsel

for the petitioners is that nowhere in the impugned

order, the learned Magistrate has noted that cognizance

is taken. The said contention cannot be accepted for the

reason that there is no need to explicitly pass an order

of taking cognizance. If the Court proceeds with the case

for enquiry and proceed to pass orders i.e., deemed

taking of cognizance. But, in the case on hand, as the

complaint is filed by the Public Servant, the learned

Magistrate dispensed recording of sworn statement and

based on the complaint, proceeded to pass orders.

8. The contention of the learned counsel for the

petitioners is that while issuing process the learned

Magistrate has mechanically passed the order and

nothing is discussed with regard to the contents of the

complaint and also ingredients of the offences which

have been invoked. There is force in the said contention

of the learned counsel for the petitioners. The learned

Magistrate while issuing process mechanically passed

the order and directed the office to register the case as

CC and issued process. As to what made the learned

Magistrate to issue process has not been stated in the

order. It is nothing but a mechanical order.

9. Hence, it is appropriate to set aside the order

of the learned Magistrate with regard to compliance of

Section 202 of Cr.P.C., as well as while taking

cognizance, to look into the contents of the complaint

and also material on record whether material available

on record are sufficient to proceed with the case and

pass order applying his judicious mind.

10. The contention of the learned counsel for the

petitioners that though the petitioners' firm chose to

controvert Government Analyst Report within 28 days of

receipt of copy of Analyst Report and requested the

respondent-authorities to send sample to get it tested in

the Central Drug Laboratory, the respondent-authorities

has not acted upon the same and also contention

regarding non-arraying of the local distributor as

accused and are kept open.

11. In view of the discussions made above, I

pass the following:

ORDER

The petition is allowed. The impugned order dated

05.03.2015 passed by I-Additional Civil Judge and JMFC-

I Court at Vijayapura in C.C.No.752/2015 is hereby set

aside.

The matter is remitted back to the Trial Court to

proceed with the matter from the stage of receiving the

complaint in the light of the observations made in this

order regarding compliance of Section 202 of Cr.P.C.,

and also apply his judicious mind, taking into the

contents of the complaint and other material available

on record, whether there is prima facie case to proceed

against the petitioners while issuing summons.

Sd/-

JUDGE

NB*