Karnataka High Court
Sri Kunal Bahl vs State Of Karnataka on 7 January, 2021
Author: Suraj Govindaraj
Crl.P. No.4676 of 2020
1 & Crl.P. No.4712 of 2020
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.4676 OF 2020
AND
CRIMINAL PETITION NO.4712 OF 2020
IN CRIMINAL PETITION NO.4676 OF 2020
BETWEEN:
1. SRI. KUNAL BAHL
CHIEF EXECUTIVE OFFICER AND
DIRECTOR OF M/S JASPER
INFOTECH PRIVATE LIMITED, 238
1ST FLOOR, OKHLA INDUSTRIAL
ESTATE, NEW DELHI-110020
2. SRI. ROHIT KUMAR BANSAL
CHIEF OPERATIVE OFFICER AND DIRECTOR
OF M/S JASPER INFOTECH PRIVATE LIMITED
238, 1ST FLOOR, OKHLA INDUSTRIAL
ESTATE, NEW DELHI-110020 ... PETITIONERS
(BY SRI.C.V. NAGESH, SR. COUNSEL FOR
SRI. SANJANTHI SAJAN POOVAYYA, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY
DRUGS INSPECTOR (INTELLIGENCE)-2
REGIONAL OFFICE, MYSORE
REGIONAL OFFICE OF THE
DEPUTY DRUGS CONTROLLER-CA-08
2ND PHASE, 4TH STAGE
VIJAYANAGAR, MYSURU-570032 ... RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
Crl.P. No.4676 of 2020
2 & Crl.P. No.4712 of 2020
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.PC., PRAYING TO QUASH THE COMPLAINT DATED 05.06.2020
IN C.C.NO.156/2020 PENDING BEFORE THE COURT OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MYSURU (ANNEXURE-A)
AND ETC.
*****
IN CRIMINAL PETITION NO.4712 OF 2020
BETWEEN:
SNAPDEAL PRIVATE LIMITED
(FORMERLY KNOWN AS
JASPER INFOTECH PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT:
SPROUTBOX SURYAVILLAS
SUITE #181 TR-4, FIRST FLOOR
D-181, OKHLA INDUSTRIAL AREA, PHASE-1
NEW DELHI, SOUTH DELHI-110020
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
MR. VIJAY KUMAR SRIVASTAVA ... PETITIONER
(BY SRI.C.V. NAGESH, SR. COUNSEL FOR
SRI. SANJANTHI SAJAN POOVAYYA, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY
DRUGS INSPECTOR (INTELLIGENCE)-2
REGIONAL OFFICE, MYSORE
REGIONAL OFFICE OF THE
DEPUTY DRUGS CONTROLLER-CA-08
2ND PHASE, 4TH STAGE
VIJAYANAGAR, MYSURU-570032 ... RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.PC., PRAYING TO QUASH THE COMPLAINT DATED 05.06.2020
IN C.C.NO.156/2020 PENDING BEFORE THE COURT OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MYSURU (ANNEXURE-A)
AND ETC.
*****
Crl.P. No.4676 of 2020
3 & Crl.P. No.4712 of 2020
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION
AND HAVING BEEN RESERVED FOR ORDERS ON 06.11.2020, THIS
DAY, THROUGH VIDEO CONFERENCE, THE COURT PRONOUNCED
THE FOLLOWING:
ORDER
1. The Petitioners in Crl.P. No.4676/2020 are the
Directors of Snapdeal Private Limited, accused
No.2. They are before this Court seeking for the
following reliefs:
a) Call for records in C.C.No.156/2020 pending
before the Court of the Principal Senior Civil
Judge and CJM, Mysuru;
b) Quash the Complaint the Complaint dated
5.6.2020 in C.C.No.156/2020 pending on the
file of the Prl. Senior Civil Judge and CMM,
Mysuru; and
c) Quash the order dated 8.6.2020 and further
proceedings pending in C.C.No.156/2020
pending before the Prl. Senior Civil Judge and
CMM, Mysuru taking Cognisance of the offences
punishable under Section 27(a)(ii) of the Drugs
and Cosmetics Act, 1940 and issuing Summons
to the petitioners.
2. The Petitioner in Crl.P. No.4712/2020 is Snapdeal
Private limited who is seeking for the following
reliefs:
Crl.P. No.4676 of 2020
a) Call for records in C.C.No.156/2020 pending
before the Court of the Principal Senior Civil
Judge and CJM, Mysuru;
b) Quash the Complaint the Complaint dated
5.6.2020 in C.C.No.156/2020 pending on the
file of the Prl. Senior Civil Judge and CMM,
Mysuru; and
c) Quash the order dated 8.6.2020 and further
proceedings pending in C.C.No.156/2020
pending before the Prl. Senior Civil Judge and
CMM, Mysuru taking Cognisance of the offences
punishable under Section 27(b)(ii) of the Drugs
and Cosmetics Act, 1940 and issuing Summons
to the petitioners.
3. Though there are two petitions filed, essentially the
averments made in both the petitions are one and
the same. Both the petitions arise out of the
Criminal proceedings in C.C.No.156/2020 initiated
against the petitioners in both the matters and
certain others for alleged violation of Section 18(c)
of the Drugs and Cosmetics Act, 1940 punishable
under Section 27(b)(ii) of the Drugs and Cosmetics
Act, 1940.
Crl.P. No.4676 of 2020
4. In the petitions it is contended as under:
Background of Snapdeal
4.1. Jasper Infotech Private Limited [ now
Snapdeal Private Limited (Petitioner)],
was incorporated in 2007 (hereinafter
referred to as 'Snapdeal'), the said
company started an online marketplace in
February 2010, namely "Snapdeal.com"
which is claimed to be India's largest
online marketplace, with the widest
assortment of 60 million plus products
across 800 categories from regional,
national and international brands and
retailers.
4.2. Snapdeal is 'intermediary' as defined under
Section 2(1)(w) of the Information
Technology Act, 2000 (hereinafter
referred to as the 'IT Act'). An
Crl.P. No.4676 of 2020
'intermediary' under the Information
Technology Act, 2000, includes an online-
market place. Section 2(1)(w) of the IT
Act, is reproduced hereunder for easy
reference.
"Section 2(1) in The Information
Technology Act, 2000
(1) In this Act, unless the context otherwise
requires,-
(w) "intermediary", with respect to any
particular electronic records, means any
person who on behalf of another person
receives, stores or transmits that record or
provides any service with respect to that
record and includes telecom service providers,
network service providers, internet service
providers, web-hosting service providers,
search engines, online payment sites, online-
auction sites, online-market places and cyber
cafes;]"
4.3. DIRECTORS:
The directors in Crl.P. No.4676/2020 are
the directors of the Petitioner in
Crl.P.No.4712/2020. They have been
Crl.P. No.4676 of 2020
arraigned as accused Nos.3 and 4 in the
Complaint.
Snapdeal's relationship with Seller and Seller
obligations
4.4. In order to upload, sell or even 'offer for
sale' any product on Snapdeal, a seller h as
to create an account with Snapdeal and
contractually agree to the terms of the
following documents:-
4.4.1. Snapdeal's Terms of Use, which
contains the basic terms and
conditions of using Snapdeal that
every user (including every Seller)
has to agree with. These terms are
publicly available at https:/
/www.snapdea1.com/offers /terms-
of-use.
4.4.2. Snapdeal's Terms of Offer for
Sale, which contains the basic terms
Crl.P. No.4676 of 2020
and conditions pertaining to sale of
products on Snapdeal which every
user/ seller has to agree with.
These terms are publicly available
at https://www.snapdeal.com/
page/terms-of-sale.
4.4.3. Snapdeal's Policies: which includes
the policy relating to privacy and
data collection of every user
("Privacy Policy"), the policy
dealing with abuse of Snapdeal's
Terms of Service ("Abuse Policy"),
the policy dealing with prohibited
items on Snapdeal and the
consequences of violation
("Prohibited Seller Activities and
Consequences Policy").
Crl.P. No.4676 of 2020
4.4.4. Seller Agreement: which contains
the basic terms and conditions of
selling products over Snapdeal which
every Seller has to agree with.
4.5. Snapdeal's business as per its 'Terms of
Offer for Sale', is "a platform that
facilitates the online sale and purchases of
branded merchandise and services
("Services") offered by Snapdeal's various
affiliate/ registered merchants/ vendors/
service providers ("Vendor/s"). The Vendors
are the Sellers of products and services on
the Website who are stated to be solely
responsible to the purchaser/customer for
the products sold or for redemption of any
Voucher purchased by the
purchaser/customer through the Website."
Crl.P. No.4676 of 2020
4.6. Snapdeal enters into seller agreements with
various sellers, the seller agreements are
accompanied by a Schedule of banned
products, which categorically includes "21.
Prescription Medicines and Drugs".
4.7. Under the Seller Agreement, the sellers are
stated to have agreed to several conditions
the relevant conditions for the present matter
are as under:
4.8. Seller shall upload the Product listings for
the sale of the Products in the
appropriate category, through the Seller
Panel. Seller shall also be required to
provide all details relevant to the sale /
purchase of the Products, including the
Selling Price, an informative description of
each Product (including but not limited to
the length, breadth and height of the
Crl.P. No.4676 of 2020
Product) and its contents, by way of text
descriptions, graphics, or pictures or
videos. These Product listings and
details shall be displayed on the
Website, along with the Selling Price.
4.9. Seller has represented that the Seller
shall provide accurate Product information
on the Seller Panel/Website. The Product
description shall not be misleading and
shall describe the actual condition of the
Product. If the sold Product does not
match the Product description displayed
on the Website, Seller agrees to refund
any amounts that Seller may have
received from the Buyer.
4.10. Seller shall not attempt to sell any
products falling in the category of
Snapdeal Banned Products" List on this
Crl.P. No.4676 of 2020
Website. Snapdeal shall be entit l ed to
block all such products and shall also have
the right to suspend or terminate the
Seller's access to the Seller Panel and the
Website or terminate this Agreement
forthwith.
4.11. When a Buyer elects to purchase a
Product through the Website, Snapdeal
shall receive the order for the Product
only in the capacity of an online
marketplace. Seller also has agreed that
the payment facility provided by Snapdeal
is neither a banking service nor a financial
service but is merely a facilitator/
facilitating the service of providing an
automated online electronic payment
system, using the existing authorised
banking infrastructure and credit card
payment gateway networks or payment
Crl.P. No.4676 of 2020
through cash on delivery, for the
transactions on the Website. Further, by
providing the payment facility, Snapdeal
is neither acting as a Trustee nor acting in
a fiduciary capacity with respect to any
transaction on the Website.
4.12. Seller confirm and understand that selling
and delivering fake, duplicate, spurious,
counterfeit, refurbished or previously
owned Products thronged the Website will
cause great prejudice and harm to the
reputation and goodwill of Snapdeal and
may also cause harm and prejudice to the
Buyers. Seller acknowledge and warrant
that Seller shall not sell any Product which
may cause prejudice or harm to the
reputation and goodwill of Snapdeal.
Further, if Snapdeal receives any
complaint from any Buyer or if Seller sells
Crl.P. No.4676 of 2020
or delivers fake, duplicate, spurious,
counterfeit, refurbished or previously
owned Products through the Website
then Seller shall be debited with an
amount of equivalent to total GMV(Gross
Merchandise Value) of all products sold
through Snapdeal's Website or Rs
5,00,000, whichever is higher and will
lead to immediate delisting of all of
Seller's products from Snapdeal.
Snapdeal reserves the right to adjust the
above amount from any amount accrued
to Seller pursuant to this Agreement.
4.13. Snapdeal has also published a document
titled 'Prohibited Seller Activities and
consequences Policy Document', where one
of the Prohibited seller activities is clearly
specified as:
Crl.P. No.4676 of 2020
Advertising, exhibiting, Hazardous materials
publishing, Narcotic Drugs and
representing, listing, Psychotropic
delivering, exposing for Substances
sale, offering to sell or Prescription Medicines
selling products which and Drugs.
are banned as per
"Banned Product List"
annexes to the Seller
Agreement including
illegal or prohibited
products as per
Applicable Laws or
regulated product
without license(s) from
proper authority(ies)
4.14. On the basis of the above, it is contended
that Snapdeal has put in place a robust
system to inform all sellers on its platform
of their responsibilities and obligations
under applicable laws and therefore
discharged its role and obligation as an
intermediary.
Crl.P. No.4676 of 2020
4.15. It is contended that the above documents
indicate the due diligence exercised by
Snapdeal in accordance with Section
79(2)(c) of the Information Technology Act,
2000, read in conjunction with the
Information Technology (Intermediaries
Guidelines) Rules, 2011, in ensuring that
Sellers who register on its Website conduct
themselves in accordance with and in
compliance with the applicable laws.
Complaint and Allegations:
4.16. The Respondent Inspector appointed under
Section 21 of the Act (as per G.O No.
HFW/ 20/ IMM/ 2010 dated 20/ 04/
2010), has filed the Complaint on the
basis of information allegedly received
by the Deputy Drugs Controller, Mysore
on 20/11/2014.
Crl.P. No.4676 of 2020
4.17. The allegations made in the Complaint are
as follows:
4.17.1. It is alleged that in October 2014,
M/s Adept Biocare, a proprietary
concern of one Mr. Amandeep
Chawla, Plot No. 1 53, Industrial
Area, Phase II, Opp. Amartex,
Panchakula (Accused No.1 in the
Impugned Complaint), created a
seller account on Accused No. 2s'
online marketplace
www.snapdeal.com for listing and
selling his own products.
4.17.2. It is further alleged that the said
Accused No.1 confirmed having sold
SUHAGRA-100 Tablets (Sildenafil
Citrate Tablets 100 mg), during the
Crl.P. No.4676 of 2020
period between 13.10.2014 and
16.12.2014,
4.17.3. Snapdeal warned Accused No.1 not
to sell the said tablets on the
Website. It is further alleged that
Accused No.1 possessed the
wholesale licence.
4.17.4. On 10/1l/2014, one Mr. Manjunath
placed an online order through the
Petitioners' Website, for SUHAGRA
100 Tablets (Sildenafil Citrate Tablets
100 mg) under retail Invoice bearing
No. S9C12D/ I4-1S/ 200 raised by
Accused No. 1 and the same was
delivered to him on 20/11/2014 and
payment of Rs.390/ was made under
Cash on Delivery (COD) in the
Crl.P. No.4676 of 2020
presence of Investigations Officers
and Panch witnesses.
4.17.5. It is alleged that Snapdeal has
exhibited SUHAGRA-100 mg Tablets
for sale and provided platform to
Seller and purchaser.
4.17.6. On 10.08.2017, the Respondent
addressed a letter to the Assistant
Drugs Controller - 02, Belgaum
Circle, to furnish certified copies of
the Constitution details and other
documents of Snapdeal.
4.17.7. On 21.05.2017, Snapdeal
addressed a letter to the Assistant
Drugs Controller-02, Belgaum Circle
furnishing all the required
documents as requested.
Crl.P. No.4676 of 2020
4.17.8. On 22.08.2017 and 29.05.2017,
the Deputy Drugs Controller,
Mysuru sent emails to Snapdeal to
ascertain whether the Constitution
details of Snapdeal were the same
as before.
4.17.9. Sri. Krishna Mohan Chaudary,
Authorized Signatory of Snapdeal
replied to the email and furnished
the list of Directors of Snapdeal
and on subsequent dates, the
same exercise was repeated. On
15.01.2020, Snapdeal replied to the
Respondent.
4.17.10. On the basis of the above it is
alleged that there is a violation
under Section 18(c) of the Act,
Crl.P. No.4676 of 2020
which is punishable under Section
27(b)(ii) of the Act, which sections
are reproduced hereunder for easy
reference:
Section 18(c) :
(c) manufacture for sale or for distribution, or
sell, or stock or exhibit or offer for sale,] or
distribute any drug [or cosmetic], except
under, and in accordance with the conditions
of, a licence issued for such purpose under
this Chapter: Provided that nothing in this
section shall apply to the manufacture,
subject to prescribed conditions, of small
quantities of any drug for the purpose of
examination, test or analysis: Provided
further that the [Central Government] may,
after consultation with the Board, by
notification in the Official Gazette, permit,
subject to any conditions specified in the
notification, the [manufacture for sale or for
distribution, sale, stocking or exhibiting or
offering for sale] or distribution of any drug or
class of drugs not being of standard quality.
Section 27 (b)(ii). Penalty for
manufacture, sale, etc., of drugs in
contravention of this Chapter
(b) any drug--
(ii) without a valid licence as required under
clause (c) of section 18, shall be punishable
with imprisonment for a term which shall [not
be less than three years but which may
extend to five years and with fine which shall
not be less than one lakh rupees or three
Crl.P. No.4676 of 2020
times the value of the drugs confiscated,
whichever is more:]
Provided that the Court may, for any
adequate and special reasons to be recorded
in the judgment, impose a sentence of
imprisonment for a term of [less than three
years and of fine of less than one lakh
rupees;]
4.17.11. As regards the above, criminal
proceedings are initiated against the
Petitioner in C.C. 156/2020 and vide
order dated 08.06.2020, Cognisance
Of offence under Section 27(b)(ii) is
taken and Summons is issued to the
Petitioners.
4.17.12. It is being aggrieved by the above
Complaint and the order of
Cognisance that the Petitioners are
before this Court seeking for the
aforesaid reliefs.
Crl.P. No.4676 of 2020
5. Shri C V Nagesh Learned Senior Counsel
appearing for the Petitioners while reiterating
the contents of the petition submitted that:
5.1. Even if all the contents of the Impugned
Complaint are taken at their face value and
accepted in their entirety, they do not prima
facie constitute the commission of an
offence by the Petitioner.
Order of Cognisance to be Speaking
5.2. An order taking Cognisance is required to be
done by way of a speaking order and the
said order requires to be passed after due
application of mind.
5.3. The sine qua non for taking Cognisance of
an offence is the application of mind by the
Magistrate and his satisfaction that the
allegations, if proved, would constitute an
offence, in the present case, a mere
Crl.P. No.4676 of 2020
perusal of the Impugned Order makes it
abundantly clear that the same does
not disclose application of mind.
5.4. He relied on the decision of the Apex
Court in GHCL Employees Stock Option
Trust v. India Infoline Limited (2013)
4 SCC 505 more particularly para 19
thereof which is reproduced hereunder for
easy reference.
19. In the order issuing Summons, the learned Magistrate
has not recorded his satisfaction about the prima facie case
as against Respondents 2 to 7 and the role played by them
in the capacity of Managing Director, Company Secretary or
Directors which is sine qua non for initiating criminal action
against them. Recently, in Thermax Ltd. v. K.M. Johny
while dealing with a similar case, this Court held as under:
"38. Though Respondent 1 has roped all the
appellants in a criminal case without their specific
role or participation in the alleged offence with the
sole purpose of settling his dispute with the appellant
Company by initiating the criminal prosecution, it is
pointed out that Appellants 2 to 8 are the ex-
Chairperson, ex-Directors and senior managerial
personnel of Appellant 1 Company, who do not have
any personal role in the allegations and claims of
Respondent 1. There is also no specific allegation
with regard to their role.
39. Apart from the fact that the Complaint lacks
necessary ingredients of Sections 405, 406, 420 read
with Section 34 IPC, it is to be noted that the concept
of 'vicarious liability' is unknown to criminal law. As
Crl.P. No.4676 of 2020
observed earlier, there is no specific allegation made
against any person but the members of the Board
and senior executives are joined as the persons
looking after the management and business of the
appellant Company."
5.5. He relied on the decision of the Apex
Court in M/s. Pepsi Foods Ltd and anr.
vs. Special Judicial Magistrate and Ors
(1998) 5 SCC 749, more particularly para 28
thereof which is hereunder reproduced for
easy reference:
28. Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant
has to bring only two witnesses to support his
allegations in the Complaint to have the criminal law
set into motion. The order of the Magistrate
summoning the accused must reflect that he has
applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of
allegations made in the Complaint and the evidence
both oral and documentary in support thereof and
would that be sufficient for the complainant to succeed
in bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of
the accused. The Magistrate has to carefully scrutinise
the evidence brought on record and may even himself
put questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused.
Crl.P. No.4676 of 2020
5.6. A mere statement that the Court has gone
through the Complaint, documents and
heard the complainant is not sufficient.
What weighed in the mind of the
Magistrate while passing such an order
must be reflected in his order.
5.7. That Section 204 of the Code contains the
words "sufficient grounds for proceedings"
which are of immense importance. It is
these words which amply suggest that an
opinion is to be formed only after due
application of mind that there is sufficient
basis for proceeding against the said
accused and formation of such an opinion
is to be stated in the order itself, though
the order need not contain detailed
reasons. In the present case, a mere
perusal of the Impugned Order, makes it
apparent that the same does not
Crl.P. No.4676 of 2020
disclose any application of mind for the
purpose of coming to the conclusion as to
why each of the accused including the
Petitioner herein, are required to be
proceeded against. When there are
multiple accused, the order is required to
disclose the application of mind by the
Magistrate as regards each accused.
Role of an Intermediary under the Act
5.8. That the need for on independent
inquiry as per the requirements of
Section 202(1) Cr.P.C. is borne out by the
fact the Court of the Learned Trial
Court passed the Impugned Order without
ascertaining (i) the role of Snapdeal in the
sale of a product on its platform and (ii) the
exact role of the Petitioners.
Crl.P. No.4676 of 2020
5.9. Snapdeal is an intermediary as defined
under Section 2(1)(w) of the Information
Technology Act, 2000, as amended by the
Information Technology (Amendment) Act,
2008, and is therefore entitled to the
exemption from liability in terms of Section
79 Information Technology Act, 2000, for
the following reasons:
5.10. Snapdeal had no role in the said
transaction.
5.11. Snapdeal merely provides access to a
communication system over which
information is made available to third
parties. In the present instance, the
information regarding the products offered
for sale by Accused No. 1 was enabled for
display to the buyers/ customers on the
Crl.P. No.4676 of 2020
Company.
5.12. Snapdeal as an intermediary has no control
on what users may post on its platform.
5.13. Snapdeal has exercised 'due diligence'
under Section 79(2)(c) of the Information
Technology Act, 2000, read in conjunction
with the Information Technology
(Intermediaries Guidelines) Rules, 2011.
Section 79(2)(c) of the IT Act is reproduced
hereunder for easy reference:
Section 79(2)(c) in The Information
Technology Act, 2000
(c) the intermediary observes due diligence
while discharging his duties under this Act and
also observes such other guidelines as the
Central Government may prescribe in this
behalf."
5.14. Intermediary protection provided to
Snapdeal under Section 79 of the
Crl.P. No.4676 of 2020
Information Technology Act, 2000 has
been acknowledged by the Respondent
in the impugned Complaint and hence
the Respondent could not have arrayed
the Petitioner as accused in the
Complaint.
5.15. That the only liability of an intermediary
under Section 79(3)(b) of the IT Act is to
take down third-party content upon receipt
of either a court order, or a notice by an
appropriate government authority and not
otherwise. Section 79 of the IT Act is
reproduced hereunder for easy reference:
79 Exemption from liability of intermediary
in certain cases.
(1) Notwithstanding anything contained in any law
for the time being in force but subject to the
provisions of sub-sections (2) and (3), an
intermediary shall not be liable for any third party
information, data, or communication link made
available or hosted by him.
Crl.P. No.4676 of 2020
(2) The provisions of sub-section (1) shall apply
if-
(a) the function of the intermediary is
limited to providing access to a
communication system over which
information made available by third parties
is transmitted or temporarily stored or
hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the
transmission, and
(iii) select or modify the information
contained in the transmission;
(c) the intermediary observes due diligence
while discharging his duties under this Act
and also observes such other guidelines as
the Central Government may prescribe in
this behalf.
(3) The provisions of sub-section (1) shall not
apply if-
(a) the intermediary has conspired or
abetted or aided or induced, whether by
threats or promise or othorise in the
commission of the unlawful Act;
(b) upon receiving actual knowledge, or on
being notified by the appropriate
Government or its agency that any
information, data or communication link
residing in or connected to a computer
resource, controlled by the intermediary is
being used to commit the unlawful Act, the
intermediary fails to expeditiously remove or
Crl.P. No.4676 of 2020
disable access to that material on that
resource without vitiating the evidence in
any manner.
Explanation. -For the purpose of this section, the
expression "third party information" means any
information dealt with by an intermediary in his capacity
as an intermediary.
5.16. An intermediary cannot be responsible for
the listing and sale of allegedly products by
independent third-party sellers on its
marketplace by relying on the decision of
the Apex Court in Bharat Bribe Digumarti
v. State (2017) 2 SCC 18 and Shreya
Singhal vs. Union of India, (2015) 5
SCC 1.
5.17. The Magisterate failed to consider that
"market place model of e-commerce" is
recognised in Indian law and policy by
referring to Press Note 3 of 2016 issued by
the Department of Industrial Policy and
Promotion, Ministry of Commerce and
Crl.P. No.4676 of 2020
Industry, Government of India recognises
whereunder the e-commerce entity only
plays the role of a facilitator between the
buyer and Seller, and does not have
ownership over the goods sold. Relevant
paragraphs of Press Note 3 of 2016 are
extracted hereunder:
"Definitions:
i. E-Commerce- E-commerce means
buying and selling of goods and
services including digital products
over digital & electronic network.
ii. E-commerce entity- E-commerce
entity means a company incorporated
under the Companies Act 1956 or the
Companies Act 2013 or a foreign
company covered under section 2 (42) of
the Companies Act, 2013 or an office,
branch or agency in India as provided in
section 2 (v) (iii) of FEMA1999, owned or
controlled by a person resident outside
India and conducting the e-commerce
business.
iii. Inventory based model of e-
commerce- Inventory based model of
e-commerce means an e-commerce
activity where inventory of goods and
services is owned by e-commerce entity
and is sold to the consumers directly.
Crl.P. No.4676 of 2020
iv. Marketplace based model of e-
commerce- Marketplace based model of
e-commerce means providing of an
information technology platform by an e-
e-commerce entity on a digital &
electronic network to act as a facilitator
between buyer and Seller.
Guidelines for Foreign Direct Investment
on e-commerce sector:
i. 100% FDI under automatic route is
permitted in marketplace model of e-
commerce.
ii. FDI is not permitted in inventory-based
model of e-commerce.
Other Conditions:
i. Digital & electronic network will include
network of computers, television
channels and any other internet
application used in automated manner
such as web pages, extranets, mobiles
etc.
ii. Marketplace e-commerce entity will be
permitted to enter into transactions with
sellers registered on its platform on B2B
basis.
iii. E-commerce marketplace may provide
support services to sellers in respect of
warehousing, logistics, order fulfilment,
call centre, payment collection and other
services.
Crl.P. No.4676 of 2020
iv. E-commerce entity providing a
marketplace will not exercise ownership
over the inventory i.e., goods purported
to be sold. Such an ownership over the
inventory will render the business into
inventory based model.
v. An e-commerce entity will not permit
more than 25% of the sales affected
through its marketplace from one vendor
or their group companies.
vi. In marketplace model goods/services
made available for sale electronically on
Website should clearly provide name,
address and other contact details of the
Seller. Post sales, delivery of goods to
the customers and customer satisfaction
will be responsibility of the Seller.
vii. In marketplace model, payments for sale
may be facilitated by the e-commerce
entity in conformity with the guidelines
of the Reserve Bank of India.
viii. In marketplace model, any
warrantee/guarantee of goods and
services sold will be responsibility of the
Seller.
ix. E-commerce entities providing
marketplace will not directly or indirectly
influence the sale price of goods or
services and shall maintain level playing
field.
x. Guidelines on cash and carry wholesale
trading as given in para 6.2, 16.1.2 of
Crl.P. No.4676 of 2020
the FDI Policy will apply on B2B e-
commerce.
5.18. That subsequent to the enactment of the
Consumer Protection (E-Commerce) Rules,
2020, a distinction has been drawn between
marketplace e-commerce websites (such as
Snapdeal, Amazon and Flipkart) and
inventory e-commerce websites (such as
Lifestyle and Decathlon).
5.19. Rule 5(1) of Consumer Protection (E-
Commerce) Rules, 2020, specifically
provides that in order to claim an exemption
under Section 79 of the Information
Technology Act, 2000 as regards a
marketplace e-commerce entity, Snapdeal
has complied with the requirements of sub-
sections (2) and (3) of Section 79, as well as
the Information Technology (Intermediaries
Guidelines) Rules, 2011. Rule 5(1) of the
Crl.P. No.4676 of 2020
Consumer Protection (e-commerce) Rules,
2020, is reproduced hereunder for easy
reference.
5(1) Liabilities of marketplace e-commerce
entities. -
(1) A marketplace e-commerce entity which
seeks to avail the exemption from liability
under sub-section (1) of section 79 of the
Information Technology Act, 2000 (21 of 2000)
shall comply with sub-sections (2) and (3) of
that section, including the provisions of the
Information Technology (Intermediary
Guidelines) Rules, 2011.
(2) Every marketplace e-commerce entity shall
require sellers through an undertaking to
ensure that descriptions, images, and other
content pertaining to goods or services on their
platform is accurate and corresponds directly
with the appearance, nature, quality, purpose
and other general features of such good or
service.
(3) Every marketplace e-commerce entity shall
provide the following information in a clear and
accessible manner, displayed prominently to its
users at the appropriate place on its platform:
(a) details about the sellers offering goods
and services, including the name of their
business, whether registered or not, their
geographic address, customer care number,
any rating or other aggregated feedback
about such Seller, and any other information
necessary for enabling consumers to make
informed decisions at the pre-purchase
stage:
Crl.P. No.4676 of 2020
Provided that a marketplace e-commerce
entity shall, on a request in writing made by
a consumer after the purchase of any goods
or services on its platform by such
consumer, provide him with information
regarding the Seller from which such
consumer has made such purchase,
including the principal geographic address of
its headquarters and all branches, name and
details of its Website, its email address and
any other information necessary for
communication with the Seller for effective
dispute resolution;
(b) a ticket number for each Complaint
lodged through which the consumer can
track the status of the Complaint;
(c) information relating to return, refund,
exchange, warranty and guarantee, delivery
and shipment, modes of payment, and
grievance redressal mechanism, and any
other similar information which may be
required by consumers to make informed
decisions;
(d) information on available payment
methods, the security of those payment
methods, any fees or charges payable by
users, the procedure to cancel regular
payments under those methods, charge-
back options, if any, and the contact
information of the relevant payment service
provider;
(e) all information provided to it by sellers
under sub-rule (5) of rule 6; and an
explanation of the main parameters which,
individually or collectively, are most
significant in determining the ranking of
goods or sellers on its platform and the
Crl.P. No.4676 of 2020
relative importance of those main
parameters through an easily and publicly
available description drafted in plain and
intelligible language.
(4) Every marketplace e-commerce entity shall
include in its terms and conditions generally
governing its relationship with sellers on its
platform, a description of any differentiated
treatment which it gives or might give between
goods or services or sellers of the same category.
(5) Every marketplace e-commerce entity shall
take reasonable efforts to maintain a record of
relevant information allowing for the identification
of all sellers who have repeatedly offered goods or
services that have previously been removed or
access to which has previously been disabled
under the Copyright Act, 1957 (14 of 1957), the
Trade Marks Act, 1999 (47 of 1999) or the
Information Technology Act, 2000 (21 of 2000):
Provided that no such e-commerce entity shall be
required to terminate the access of such Seller to
its platform pursuant to this sub-rule but may do
so on a voluntary basis.
Delay in filing Complaint
5.20. The Complaint was filed with an inordinate
delay of nearly six years, though the
transaction occurred in the year 2014. No
explanation or justification has been
afforded for the unreasonable delay
Crl.P. No.4676 of 2020
caused by the Respondent, and as such
the same is fatal.
Sine Qua Non for 18(1)(c) of the Act
5.21. For 18(1)(c) of the Act to apply it is
imperative that a person either
manufactures for sale or for distribution, or
sells, or stocks or exhibits or offers for sale,
any drug or cosmetic, without a license
issued under the Act. In the instant case,
Snapdeal has neither manufactured for sale
or distribution, nor sold, or stocked or
exhibited or offered for sale, any drug or
cosmetic. It is Accused No. 1, who exhibited
and offered its products for sale on the
Company. Hence neither Snapdeal nor its
Directors the Petitioners can be made liable
for offences punishable under Section
Crl.P. No.4676 of 2020
27(b)(ii) of the Act. The essential
ingredients of Section 18 (1)(c) of the Act
not having been fulfilled neither Snapdeal
nor its Directors/Petitioners can be
prosecuted for the offence under Section
27(b)(ii) of the Act.
Vicarious Liability of Directors in Criminal
Offences
5.22. Vicarious liability in criminal law is not
automatic and that necessary averments
ought to be contained in the Complaint
before any person can be subjected to
criminal process, in the instant case, there
are no averments against the Petitioner.
5.23. The Petitioners are only Directors of the
Company and are not involved in day to
day affairs of the Company, like the sale
of the products, which was done only by
Crl.P. No.4676 of 2020
Accused No. 1, therefore no offence can
be alleged against them since they have
no personal knowledge as to the legality
or otherwise of the products that are
being sold by third-party sellers.
5.24. He relied upon the decision of the Apex
court in in Maksud Saiyed vs. State of
Gujurat, (2008) 5 SCC 668 more
particularly para 13 thereof which is
reproduced hereunder for easy reference:
"13. Where a jurisdiction is exercised on a
complaint petition filed in terms of Section 156(3)
or Section 200 of the Code of Criminal Procedure,
the Magistrate is required to apply his mind. The
Penal Code does not contain any provision for
attaching vicarious liability on the part of the
Managing Director or the Directors of the
Company when the accused is the Company. The
learned Magistrate failed to pose unto himself the
correct question viz. as to whether the complaint
petition, even if given face value and taken to be
correct in its entirety, would lead to the conclusion
that the respondents herein were personally liable
for any offence. The Bank is a body corporate.
Vicarious liability of the Managing Director and
Director would arise provided any provision exists
in that behalf in the statute. Statutes indisputably
must contain provision fixing such vicarious
Crl.P. No.4676 of 2020
liabilities. Even for the said purpose, it is
obligatory on the part of the complainant to make
requisite allegations which would attract the
provisions constituting vicarious liability".
5.25. Merely being a director is not sufficient to
bring a person within the dragnet of a
prosecution under Section 34 of the Act
and that there is no deemed liability of
directors for offences committed under
the Act.
Accused residing outside the jurisdiction
of the Magistrate.
5.26. Section 202 of the Cr P.C, mandates that
where the accused resides beyond the
jurisdiction of the Court, such court 'shall'
postpone issuance of process and conduct
an inquiry in the manner provided
thereunder, by relying on the decision of the
Apex Court in Vijay Dhanka vs. Najima
Momtaj, (2014) 14 SCC 638, more
Crl.P. No.4676 of 2020
particularly Para 12 thereof which are
reproduced hereunder for easy reference:
12. The words "and shall, in a case where the accused
is residing at a place beyond the area in which he
exercises his jurisdiction" were inserted by Section 19
of the Code of Criminal Procedure (Amendment) Act
(Central Act 25 of 2005) w.e.f. 23-6-2006. The
aforesaid amendment, in the opinion of the legislature,
was essential as false complaints are filed against
persons residing at far off places in order to harass
them. The note for the amendment reads as follows:
"False complaints are filed against persons residing at
far off places simply to harass them. In order to see
that innocent persons are not harassed by
unscrupulous persons, this clause seeks to amend sub-
section (1) of Section 202 to make it obligatory upon
the Magistrate that before summoning the accused
residing beyond his jurisdiction he shall enquire into
the case himself or direct investigation to be made by
a police officer or by such other person as he thinks fit,
for finding out whether or not there was sufficient
ground for proceeding against the accused."
The use of the expression "shall" prima facie makes
the inquiry or the investigation, as the case may be,
by the Magistrate mandatory. The word "shall" is
ordinarily mandatory but sometimes, taking into
account the context or the intention, it can be held to
be directory. The use of the word "shall" in all
circumstances is not decisive. Bearing in mind the
aforesaid principle, when we look to the intention of
the legislature, we find that it is aimed to prevent
innocent persons from harassment by unscrupulous
persons from false complaints. Hence, in our opinion,
the use of the expression "shall" and the background
and the purpose for which the amendment has been
brought, we have no doubt in our mind that inquiry or
the investigation, as the case may be, is mandatory
before summons are issued against the accused living
beyond the territorial jurisdiction of the Magistrate.
Crl.P. No.4676 of 2020
5.27. All of the Accused, including the Petitioners,
reside beyond the jurisdiction of the
Learned Trial Court. Therefore, the
Impugned Order is ex facie illegal and is
liable to be set aside since the same has
been passed without conducting the
mandatory enquiry as per Section 202 of
the Cr.P.C.
6. C.Nageshwarappa, learned HCGP on the other hand
would submit that: Whether the Petitioner is a
manufacturer or not, the fact that the Petitioner
owns market place Snapdeal is sufficient to
prosecute the Petitioner for any offence or violation
committed by any seller on the platform.
6.1. That the order of cognisance dated 8.6.2020
passed by the Magistrate is proper and
correct. The Magistrate cannot be expected to
write a detailed order. His prima facie
Crl.P. No.4676 of 2020
satisfaction is sufficient for the purpose of
taking cognizance, as also for issuance of
summons. The order dated 8.6.2020 satisfies
both the requirements and therefore, is not
required to be interfered with.
6.2. In relation to the e-commerce transaction
since the transaction occurs across the
country, it cannot be expected for a purchaser
of a product in one part of the country to
proceed against the e-commerce website only
where it is registered and therefore, the
Mysore Court where the item was ordered and
delivered could exercise jurisdiction. The
Mysore Court where the transaction has
occurred would have jurisdiction.
6.3. The fact of whether accused No.2 is registered
outside the State of Karnataka or outside the
jurisdiction of the Magistrate, as also whether
accused Nos.3 and 4 are residing outside the
Crl.P. No.4676 of 2020
jurisdiction of the Magistrate is not relevant
for the reason that the transaction has
occurred within the jurisdiction of the
Magistrate at Mysore. Therefore, there is no
requirement to hold an enquiry under Section
202(2) of Cr.P.C.
6.4. Irrespective of whether accused No.2 is
considered as an intermediary or not, there
could be no product which could have been
advertised for sale contrary to the prohibitions
under the Drugs and Cosmetics Act.
6.5. Accused No.2 being the entity which provided
a platform and permitted advertisement for
sale of the said prohibited item, accused No.2
and in turn accused Nos.3 and 4 being its
directors are liable to be prosecuted. Neither
accused No.2 nor accused Nos.3 and 4 can
claim any benefit of being an intermediary as
alleged or otherwise.
Crl.P. No.4676 of 2020
6.6. There is no delay in filing of the complaint.
The government entities have processed the
matter, have taken necessary approval which
took some time, therefore even if there is any
delay, the said delay would not materially or
adversely affect the prosecution of the
accused.
6.7. On these basis, he submits that the petitions
as filed are liable to be dismissed.
7. Having heard Shri C V Nagesh the learned Senior
counsel for the Petitioner and Shri Nageshwarappa
learned HCGP, the points that would arise for
determination by this Court are:
(i) Whether the order of Cognisance dated
8.6.2020 complies with the requirement
of Section 191(1)(a) of the Cr.P.C?
(ii) Whether Summons could have been
ordered without following the procedure
under Section 204 of Cr.P.C ?
(iii) Whether the Magistrate could have
issued Summons to accused Nos. 2 who
Crl.P. No.4676 of 2020
is stated to be not registered within the
Jurisdiction of the Magisterate without
holding an enquiry under Section 202(1)
of Cr.P.C.?
(iv) Whether the Magistrate could have
and 4 i.e. petitioners in
Crl.P.No.4676/2020 since they are
residing outside the jurisdiction of the
Magistrate without holding an enquiry
under Section 202(1) of Cr.P.C. ?
(v) Which Court could exercise Jurisdiction
as regards an offence relating to an e-
commerce transaction?
(vi) Whether an intermediary as defined
under Section 2(w) of the Information
Technology Act would be liable for any
action or inaction on party of a
vendor/seller making use of the facilities
provided by the intermediary in terms of
a website or a market place?
(vii) Whether Snapdeal/accused No.2 would
be responsible and/or liable for sale of
any item not complying with the
requirements under the Drugs and
Cosmetics Act, 1949 on its platform
accused No.2 being an intermediary?
(viii)Effect of delay in filing a Criminal
Complaint?
(ix) What Order ?
Crl.P. No.4676 of 2020
8. I answer the above points as under.
9. POINT NO. (i): Whether the order of
Cognisance dated 8.6.2020 complies with the
requirement of Section 191(1)(a) of the
Cr.P.C?
POINT NO. (ii): Whether Summons could have
been ordered without following the procedure
under Section 204 of Cr.P.C ?
9.1. Both the above points being inter-related are
taken up together.
9.2. It is sought to be contended by relying on
the decisions in GHCL Employees Stock
Option Trust v. India Infoline Limited
(2013) 4 SCC 505 and M/s. Pepsi
Foods Ltd and anr. vs. Special Judicial
Magistrate and Ors (1998) 5 SCC 749,
that the Court taking Cognisance is required
to apply its mind, which should be apparent
from a reading of the order of Cognisance to
indicate that the requirement of "sufficient
Crl.P. No.4676 of 2020
grounds for proceedings" in terms of Section
204 of the code has been complied with.
9.3. As held by the Hon'ble Apex Court as also this
Court, any Court taking Cognisance of a
matter is required to follow the due procedure
relating thereto since it is on taking
Cognisance that criminal law is set in motion
as against the accused in that matter. For
that purpose, at the time of taking
Cognisance, there must be a proper
application of judicial mind to the materials
before the said Court either oral or
documentary, as well as any other information
that might have been submitted or made
available to the Court.
9.4. The test that is required to be applied by the
Court while taking Cognisance is as to
whether on the basis of the allegations made
Crl.P. No.4676 of 2020
in the Complaint or on a police report or on
information furnished by a person other than
a police officer, is there a case made out for
initiation of criminal proceedings.
9.5. For the above purpose, there is an
assessment of the allegations required to be
made applying the law to the facts and
thereby arriving at a conclusion by a process
of reasoning that Cognisance is required to be
taken.
9.6. An order of Cognisance cannot be abridged,
formatted or formulaic. The said order has to
make out that there is a judicial application of
mind. Since without such application, the
same may result in the initiation of criminal
proceedings when it was not required to be so
done.
Crl.P. No.4676 of 2020
9.7. The order of taking Cognisance is a safeguard
inbuilt in the criminal justice system so as to
avoid malicious prosecution and/or frivolous
complaints.
9.8. When a complaint or a police report or
information by a person other than police
officer is placed before the Court, the judicial
officer must apply judicious mind coupled with
discretion which is not to be exercised in an
arbitrary, capricious, whimsical, fanciful or
casual way.
9.9. Any offence alleged being one of commission
or omission attracting penal statutes;
Cognisance can be taken only if the
allegations made fulfil the basic requirement
of the said penal provision. At this point, it is
not required for the Court taking Cognisance
to ascertain the truth or veracity of the
Crl.P. No.4676 of 2020
allegation but only to appreciate if the
allegations taken at face value, would amount
to the offence complained of or not. If Yes,
Cognisance could be taken, if No, taking
Cognisance could be refused. The only manner
of ascertaining the above is by the manner of
recordal made by the Court in the order taking
Cognisance. The order passed by the court
taking cognisance would therefore reflect such
application of mind to the factual situation
9.10. In the above background that the order
passed by the Magistrate taking Cognisance
has to be appreciated. The said order reads as
follows:
"Persued entire records.
Pursuant to which Cognisance is taken as
against accused for the offence p/u/s
27(b)(ii) of Drugs & Cosmetics Act.
Office is hereby directed to register same
as C.C. in register No.III.
Crl.P. No.4676 of 2020
Issuance summons to accused through
R.P.A.D, if P/S, P/c along with other
particular d/furn.
Await & call on by 01/09/2020."
9.11. Applying the above requirement to the order
passed by the Magistrate, it can be ex facie
seen that the order of the Magistrate does not
satisfy the requirement of arriving at a prima
facie conclusion to take cognisance and issue
process let alone to the accused residing
outside the Jurisdiction of the said Magistrate.
9.12. There has to be an application of mind by the
Court taking Cognisance that prima facie or
exfacie the offences are made out on reading
of the Complaint filed. A perusal of the
impugned order dated 8.6.2020 referred in
the case that the Magistrate has perused the
entire records pursuant to which he has taken
Cognisance as against the accused for
Crl.P. No.4676 of 2020
offences punishable under Section 27(b)(ii) of
the Drugs and Cosmetics Act, 1940. This
order, in my considered opinion would not
establish any application of mind on the part
of the Magistrate inasmuch as there is no
appreciation of the offence, the role of each of
the accused and how they are alleged to have
committed the offence as regards which
Cognisance is said to have been taken.
9.13. The same in my considered opinion would not
satisfy the requirement of law. The Court
taking Cognisance while taking Cognisance
under Section 190 of Cr.P.C. is required to
apply its mind follow the process and
procedure prescribed under Section 204 of the
Cr. P.C. and pass a sufficiently reasoned order
indicating such application of mind, the
reasons for coming to a conclusion that prima
facie there exists material to indicate that the
Crl.P. No.4676 of 2020
offence alleged against the Accused is indeed
committed by such accused.
9.14. Mere reference to the provisions in respect of
which offences are alleged to have been
committed would not be in compliance with
the aforesaid requirement of the statutes as
also the various decisions of the Honb'le Apex
Court extracted hereinabove.
9.15. It is the words used in the order, which
would have to suggest that the opinion to
take Cognisance is formed only after due
application of mind that there is sufficient
basis for proceeding against the said
accused and formation of such an opinion
is to be stated in the order itself, though
the order need not contain detailed
reasons.
Crl.P. No.4676 of 2020
9.16. In the present case, a mere perusal of the
Impugned Order, makes it apparent that
the same does not disclose any
application of mind for the purpose of
coming to the conclusion as to why each
of the accused including the Petitioner
herein, are required to be proceeded
against.
9.17. When there are multiple accused, the
order is required to disclose the
application of mind by the Court taking
Cognisanse as regards each accused.
9.18. The Court taking Cognisance ought to have
referred to and recorded the reasons why the
said Court believes that an offence is made
out so as to take Cognisance more so on
account of the fact that it is on taking
Cognisance that the criminal law is set in
motion insofar as accused is concerned and
Crl.P. No.4676 of 2020
there may be several cases and instances
where if the Court taking Cognisance were to
apply its mind, the Complaint may not even
be considered by the said Court taking
Cognisance let alone taking Cognisance and
issuance of Summons.
9.19. In view of the above, I am of the considered
opinion that the order dated 08.06.2020
taking Cognisance is not in compliance with
applicable law and therefore is set aside.
9.20. I answer Point No. (i) and (ii) by holding that
the order of Cognisance dated 8.6.2020 is not
in compliance with the requirement of Section
191(1)(a) of the Cr.P.C and further does not
indicate the procedure under Section 204 of
Cr.P.C having been followed. At the time of
taking Cognisance and issuance of process,
the Court taking Cognisance is required to
pass a sufficiently detailed order to support
Crl.P. No.4676 of 2020
the conclusion to take cognisance and issue
process, in terms of the discussion above. The
judicious application of mind to the law and
facts of the matter, should be apparent on the
ex-facie reading of the order of Cognisance.
10. POINT NO. (iii): Whether the Magistrate could
have issued Summons to accused Nos. 2 who
is stated to be not registered within the
Jurisdiction of the Magisterate without holding
an enquiry under Section 202(1) of Cr.P.C.?
And
POINT NO. (iv) Whether the Magistrate could
and 4 i.e. petitioners in Crl.P.No.4676/2020
since they are residing outside the jurisdiction
of the Magistrate without holding an enquiry
under Section 202(1) of Cr.P.C. ?
10.1. Both the above points being connected to
each other are considered and answered
together as under:
10.2. Section 202 of Cr.P.C. is extracted hereunder
for easy reference:
Crl.P. No.4676 of 2020
"202. Postponement of issue of process.-
1. Any Magistrate, on receipt of a complaint of an
offence of which he is authorised to take Cognisance
or which has been made over to him under section
192, may, if he thinks fit, postpone the issue of
process against the accused, and either inquire into
the case himself or direct an investigation to be
made by a police officer or by such other person as
he thinks fit, for the purpose of deciding whether or
not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall
be made,--
a. where it appears to the Magistrate that the
offence complained of is triable exclusively by
the Court of Session; or
b. where the Complaint has not been made by a
Court, unless the complainant and the witnesses
present (if any) have been examined on oath
under section 200.
2. In an inquiry under sub- section (1), the Magistrate
may, if he thinks fit, take evidence of witnesses on
oath: Provided that if it appears to the Magistrate
that the offence complained of is triable exclusively
by the Court of Session, he shall call upon the
complainant to produce all his witnesses and
examine them on oath.
3. If an investigation under sub- section (1) is made by
a person not being a police officer, he shall have for
that investigation all the powers conferred by this
Code on an officer- in- charge of a police station
except the power to arrest without warrant.
10.3. A perusal of the Complaint indicates that the
address of accused Nos.3 and 4 provided by
the complainant himself is that of New Delhi.
Crl.P. No.4676 of 2020
within the jurisdiction of the Magistrate at
Mysuru which has been provided. A perusal of
the entire Complaint also does not indicate
any address or presence of accused Nos.3 and
4 within the jurisdiction of the Magistrate in
Mysuru. The only allegation which has been
made is that they are Directors of accused
No.2-Snapdeal Private Limited and
proceedings have been initiated merely on the
ground that Sri.C.M.Shivakumar, CW-9 vide
his E-mail dated 29.08.2019 having informed
about accused Nos.3 and 4 being Directors of
accused No.2, there has been no
correspondence by the complainant that
accused Nos.3 and 4 prior to the filing of the
Complaint.
10.4. In so far as Snapdeal is concerned it is not
registered within the Jurisdiction of the
Magistrate.
Crl.P. No.4676 of 2020
10.5. Admittedly all of the Accused reside beyond
the Jurisdiction of the Learned Trial Court.
10.6. The protection under Section 202 (2) of the Cr
P.C. is provided so as to not inconvenience an
Accused to travel from outside the Jurisdiction
of the Court taking Cognisance to attend to
the matter in that Court. Therefore, before
issuing Summons to an accused residing
outside the Jurisdiction, there has to be an
application of mind by the Court issuing
Summons and after conducting an enquiry
under Section 202 (2) of Cr.P.C. the Court
issuing Summons has to come to a conclusion
that such Summons are required to be issued
to an accused residing outside its Jurisdiction.
10.7. Sri. Nageshwarappa, Learned HCGP submitted
that the offence of sale having been
committed within the Jurisdiction of the
Crl.P. No.4676 of 2020
Magistrate, it cannot be said that the accused
is residing outside the Jurisdiction of the Court
by contending that the Registered office of the
Company is situate outside the Jurisdiction of
the said Court.
10.8. Admittedly Snapdeal/Accused no.2 neither has
a registered office within the Jurisdiction of
the Magistrate nor does it have a branch
office, corporate office, sales office or the like.
10.9. Section 202 of Cr.P.C. extracted above
provides for the safeguard in relation to
persons not residing within the jurisdiction of
the said Magistrate, not to be called or
summoned by the said Court unless the
Magistrate were to come to a conclusion that
their presence is necessary and only
thereafter issue process against the accused.
Crl.P. No.4676 of 2020
10.10. In the present case, as could be seen from the
extract of the order dated 8.06.2020, the
answer to point No.1 above, there is no such
postponement made by the Magistrate, but as
soon as the Magistrate received a complaint,
he has issued process to accused No.2, who is
registered outside the jurisdiction of the
Magistrate and also does not have any office
within the territorial Jurisdiction of the
Magisterate. Accused Nos.3 and 4 are
residing outside the jurisdiction of Magistrate
and none of the accused Nos.2, 3 and 4 have
any connection with any place within the
jurisdiction of the Magistrate.
10.11. In view of the above, it was required for the
Magisterate fo conduct a mandatory enquiry
as per Section 202 (2) of the Cr.P.C.
Crl.P. No.4676 of 2020
10.12. There being a violation of the requirement
under Section 202 of Cr.P.C., I am of the
considered opinion that the Magistrate could
not have issued Summons to the petitioners in
both the matters without following the
requirement and without conducting an
enquiry under Section 202 of Cr.P.C. as held
by the Apex court in Vijay Dhanka vs.
Najima Momtaj, (2014) 14 SCC 638 as
also by this court in B.S.YEDIYURAPPA -
vs- State of Karnataka [Crl.P.
No.100964/2020 DD 11.09.2020].
10.13. I answer Point No. (iii) and (iv) by
holding that :
10.14. When the accused is having an office,
branch office, corporate office, sales
office or the like within the Jurisdiction of
the Magistrate where the offence has
been committed and or continues to be
Crl.P. No.4676 of 2020
committed, there would be no
requirement for any enquiry under
Section 202 of Cr.P.C. It would, however,
be required for the Magistrate to in the
order of issuance of summons/process
record as to why the enquiry under
Section 202 of Cr.P.C is not being held.
10.15. In the event of accused being an
individual, if the said accused has a
temporary residence within the
Jurisdiction of the Magistrate, again
merely because he does not have a
permanent residence, there is no enquiry
which is required to be conducted under
Section 202 of Cr.P.C. It would, however,
be required for the Magistrate to in the
order of issuance of summons/process
record as to why the enquiry under
Section 202 of Cr.P.C is not being held.
Crl.P. No.4676 of 2020
10.16. When the accused has no presence within
the Jurisdiction of the Magistrate where
the offence has been committed, then it
would be mandatory for an enquiry under
Section 202 of the Cr.P.C to be held.
10.17. In the event of accused being aggrieved
by the issuance of Summons, the said
accused immediately on receipt of the
Summons and/or on appearance before
the Magistrate is required to make out his
grievance before the Magistrate and/or
by petition under Section 482 Cr.P.C. If
there is any delay, in such challenge
and/or if challenge has not made within
reasonable time, the accused would not
be entitled to raise the grievance that the
procedure under Section 202 of Cr.P.C.
has not been followed on account of
delay and latches.
Crl.P. No.4676 of 2020
11. Point No. (v): Which Court could exercise
Jurisdiction as regards an offence relating to
an e-commerce transaction?
11.1. Whenever an offence is committed or alleged
to have been committed, the first question of
importance which arises is that in whose
jurisdiction the offence would fall.
11.2. The jurisdictional issue is for that reason the
most important issue which needs to be
resolved so that the proceedings can begin.
Sections 177-189 of Cr. P.C deals with the
concept of jurisdiction. Under normal
circumstances, the case shall be inquired and
tried by a court under whose jurisdiction the
offence has been committed.
11.3. However, there are certain cases where more
than one Court could have the power to
inquire into and try the matter. Such issues
Crl.P. No.4676 of 2020
have been explicitly dealt with by the
provisions of the Code of Criminal Procedure.
11.4. In terms of Section 177 of the Cr. P.C, the
Court under whose jurisdiction the offence has
been committed only has the authority to
inquire into and try such case.
11.5. It could be that an offence or a series of
offences connected to the particular offence
could be committed at different place.
Situations where the offence has been
committed in more than one place is dealt
with by Section 178 of the Cr. P.C, this would
arise for the reason that:
11.5.1. The place of commission of the offence
is uncertain because it has been
committed in several places.
Crl.P. No.4676 of 2020
11.5.2. Where an offence is partly committed in
one local area and the rest in another
area.
11.5.3. When the offence comprises of several
acts, committed in different local areas.
11.6. When an act is an offence because of anything
which has been done and a consequence has
ensued, the said offence may be inquired into
or tried by a court of competent jurisdiction in
terms of Section 179 of the Cr. P.C.
11.7. The place of trial when the Act committed is
an offence because it is related to some other
offence is as per Section 180 of the Cr. P.C.
According to it the offence which has been
committed first has to be inquired into or
tried, when two acts are done in connection
with each other and both are offences, by the
Court under whose jurisdiction either of the
Crl.P. No.4676 of 2020
Act has been committed. In all such
provisions, the emphasis is always on the
place where the offence has been committed,
to find the jurisdiction.
11.8. According to Section 181(1) of Cr. P.C, the
trial can also be commenced where the
accused is found, besides the place where the
offence was committed and deals with the
following cases.
11.8.1. A murder committed while performing
the Act of dacoity - where the offence is
committed or where the accused is
found.
11.8.2. Kidnapping or abduction of a person- the
place from where the person was
kidnapped/ abducted or where the
person was concealed or conveyed or
detained.
Crl.P. No.4676 of 2020
11.8.3. Theft, extortion or robbery - the Court
where the offence has been committed
or where the stolen property is
possessed, received or delivered, has the
jurisdiction to try such a case.
11.8.4. Criminal misappropriation or criminal
breach of trust- where the offence has
been committed or where any part of the
property which is the subject matter of
the offence has been received or
retained, required to be returned or
accounted for, by the accused.
11.9. Offences committed by letters etc., is dealt
with by Section 182 of the Cr. P.C
whereunder, if any offence includes cheating,
if the victim has been deceived by means of
letters or telecommunication messages, it
shall be looked into by the Court under whose
Crl.P. No.4676 of 2020
local jurisdiction such letters or messages
have been sent or received; and under the
local jurisdiction of the Court in which the
property has been delivered by the person
deceived or has been received by the accused
person.
11.10. When a person commits an offence, during
journey or against a person who is travelling,
or the thing in respect of which, the offence
has been committed is in due course of its
journey or voyage, the offence has to be
inquired into or tried by a Court through or
into whose local jurisdiction that person or
thing has passed, during the journey, in terms
of Section 183 of Cr. P.C.
11.11. The State Government may in terms of
Section 185 of the Cr. P.C direct that any
cases or class of cases which have been
Crl.P. No.4676 of 2020
committed for trial in any district, may be
tried in a sessions court.
11.12. In the event of Cognisance of a particular
offence has been taken by two or more courts
and confusion arises as to which of the Courts
shall inquire into or try that offence, in such a
case, in terms of Section 186 of the Cr. P.C
only the High Court has the authority to
resolve the confusion.
11.13. A Magistrate can issue Summons or warrant
for offences which have been committed
beyond his local jurisdiction and has authority
to order such a person to be produced before
him and then send him to the Magistrate of
competent jurisdiction, in terms of Section
187 of the Cr. P.C.
Crl.P. No.4676 of 2020
11.14. The present case is one of an unauthorised
sale or sale of a prohibited item. The present
case is not one of Cyber Crime.
11.15. In the present case is not that there was a
sale of a product physically, meaning that the
product was not handed over immediately on
sale. If that were so, jurisdictional matters
would be very simple in that the Court where
the physical transaction happened would have
Jurisdiction.
11.16. In the present case as in all e-commerce
transactions, the sale took place on the
internet, in that once the product was put up
for sale on the marketplace, anyone could
have bought the same from any place so long
as the product could be delivered at the place
where the buyer was located. A buyer could
also place an order from one place and get the
Crl.P. No.4676 of 2020
product delivered at another. It is for this
reason that the concept of Jurisdiction of
courts in e-commerce transactions gets
complicated.
11.17. In so far as civil matters are concerned the
courts have over a period of time developed
several tests to determine as to which court
could have jurisdiction, the tests as regards a
criminal matter would be different. Essentially
when a criminal prosecution is initiated
against a person or entity, such person or
entity cannot be made to face such a
prosecution at any place within the country or
outside. The Court having jurisdiction should
be determined in such a manner that neither
the complainant nor an accused is put to
unnecessary harassment.
Crl.P. No.4676 of 2020
11.18. In a prosecution for criminal offences, white
collared or otherwise the accused is required
to be present physically on each date of
hearing, so long as such appearance is not
exempted. As such the court would have to
protect the accused from possible forum
shopping and or from complaints being filed in
multiple jurisdictions, which could cause
undue harassment to such an e-commerce
entity.
11.19. Therefore I answer point no. (v) by
holding that only a Court in which the
accused has a presence, like registered
office, branch office, corporate office or
the like could exercise Jurisdiction as
regards an offence relating to an e-
commerce transaction.
Crl.P. No.4676 of 2020
11.20. This of course would not apply to a Cyber
Crime, which comes under global
jurisdiction according to the IT Act, 2000.
This means that any cyber-crime
complaint can be registered with any of
the cyber cells in India, irrespective of
where the crime was originally
committed.
12. Point No. (vi): Whether an intermediary as
defined under Section 2(w) of the Information
Technology Act would be liable for any action
or inaction on party of a vendor/seller making
use of the facilities provided by the
intermediary in terms of a website or a market
place?
12.1. It is stated that Snapdeal has established a a
Marketplace on the World Wide Web, more
popularly known as the internet, enabling a
Seller to upload, sell or even 'offer for sale'
any product on Snapdeal. For this purpose,
a seller h as to create an account with
Crl.P. No.4676 of 2020
Snapdeal and contractually agree to
Snapdeal's Terms of Use, Snapdeal's
Terms of Offer for Sale, Snapdeal's
Policies, Seller Agreement: which contains
the basic terms and conditions of selling
products over Snapdeal which every Seller
has to agree with.
12.2. Snapdeal's business as per its 'Terms of
Offer for Sale', is "a platform that
facilitates the online sale and purchases of
branded merchandise and services
("Services") offered by Snapdeal's various
affiliate/ registered merchants/ vendors/
service providers ("Vendor/s").
12.3. Snapdeal being an intermediary can not be
disputed, it comes with the meaning and
definition of Intermediary under Section
2(1)(w) of the Information Technology Act,
Crl.P. No.4676 of 2020
2000, as amended by the Information
Technology (Amendment) Act, 2008.
Snapdeal would be entitled to the
exemption from liability in terms of Section
79 Information Technology Act, 2000 if the
requirements thereof are met.
12.4. Snapdeal is not the Seller, it is the Vendors
registered with Snapdeal who are the
Sellers of products and services on its
platform, it is the Vendors who are solely
responsible to the purchaser/customer.
12.5. For its part Snapdeal has entered into seller
agreements with various sellers, the seller
agreements are accompanied by a Schedule
of banned products, which categorically
includes "21. Prescription Medicines and
Drugs".
Crl.P. No.4676 of 2020
12.6. The Seller Agreement, details out the terms
and conditions relevant to the transaction,
which are extracted hereinabove.
12.7. Snapdeal has also published a document titled
'Prohibited Seller Activities and consequences
Policy Document', where one of the Prohibited
seller activities is clearly specified to be the
sale of the drug subject matter of the present
criminal proceedings.
12.8. It cannot be expected that the provider or
enabler of the online marketplace is aware
of all the products sold on its Website. It
is only required that such provider or
enabler put in place a robust system to
inform all sellers on its platform of their
responsibilities and obligations under
applicable laws in order to discharge its
role and obligation as an intermediary. If
Crl.P. No.4676 of 2020
the same is violated by the Seller of
goods or service such seller can be
proceeded with but not the intermediary.
12.9. The manner in which the above documents
have been executed, contents thereof as
also the obligation of the parties stated
therein establishes the due diligence
exercised by Snapdeal to be in
accordance with and compliance of Section
79(2)(c) of the Information Technology Act,
2000, read in conjunction with the
Information Technology (Intermediaries
Guidelines) Rules, 2011, in ensuring that
Vendors/Sellers who register on its Website
conduct themselves in accordance with and
in compliance with the applicable laws.
12.10. The Consumer Protection (E-Commerce)
Rules, 2020, makes a distinction between
Crl.P. No.4676 of 2020
marketplace e-commerce websites and
inventory e-commerce websites. As such
Snapdeal would come within the meaning of
a marketplace e-commerce website, thereby
affording the above exemption to Snapdeal
so long as the requirements under section
79 are followed by Snapdeal.
12.11. In the present case as detailed above
Snapdeal has complied with the requirements
of sub-sections (2) and (3) of Section 79, as
well as the Information Technology
(Intermediaries Guidelines) Rules, 2011.
12.12. In my considered opinion Snapdeal has
exercised 'due diligence' under Section
79(2)(c) of the Information Technology Act,
2000, read in conjunction with the
Information Technology (Intermediaries
Guidelines) Rules, 2011.
Crl.P. No.4676 of 2020
12.13. When Snapdeal/Accused to. 2 Company is
exempted from any liability under Section
79 of the Information Technology Act,
2000, no violation can ever be attributed or
made out against the directors or officers
of the intermediary, as the same would be
only vicarious, and such proceedings as
initiated against them would be unjust
and bad in law.
12.14. The only liability of an intermediary under
Section 79(3)(b) of the IT Act is to take
down third-party content upon receipt of
either a court order or a notice by an
appropriate government authority and not
otherwise, which as per the Complaint filed
indicates has been complied with by
Snapdeal, by removing the information
regarding the sale of the offending item.
Crl.P. No.4676 of 2020
12.15. I answer Point No. (vi) by holding that an
intermediary as defined under Section
2(w) of the Information Technology Act
or its directors/officers would not be
liable for any action or inaction on part of
a vendor/seller making use of the
facilities provided by the intermediary in
terms of a website or a market place.
13. POINT NO. (vii): Whether Snapdeal/accused
No.2 would be responsible and/or liable for
sale of any item not complying with the
requirements under the Drugs and Cosmetics
Act, 1949 on its platform accused No.2 being
an intermediary?
13.1. Section 18(1)(c) of the Drugs and
Cosmetics Act, 1949 applies to a
manufacturer of a drug or cosmetic, coming
within the perview and ambit of the Act.
Such manufacture is also required to be for
Crl.P. No.4676 of 2020
sale or for distribution of any drug or
cosmetic.
13.2. The only allegation in the present matter is
as regards Snapdeal having made available
its platform for sale by Accused No.1 of a
drug. There are no allegation that Snapdeal
has either manufactured for sale or
distributed or sold, or stocked or exhibited
or offered for sale, any drug or cosmetic.
13.3. Though the platform is owned and operated
by Snapdeal it is Accused No. 1, who has
exhibited and offered its products for sale
on the Snapdeal's platform. Snapdeal being
an intermediary is exempt from criminal
prosecution as aforestated.
13.4.In this background neither Snapdeal nor its
Directors can be or made liable for alleged
Crl.P. No.4676 of 2020
offences punishable under Section 27(b)(ii)
of the Drug and Cosmetics Act.
13.5. Hence I answer Point No. (vii) by holding
that Snapdeal/accused No.2 would not be
responsible and/or liable for sale of any
item not complying with the
requirements under the Drugs and
Cosmetics Act, 1949 on its platform by
accused No.1 since the essential
ingredients of Section 18 (1)(c) of the
Act not having been fulfilled neither
Snapdeal nor its Directors can be
prosecuted for the offence under
Section 27(b)(ii) of the Act.
14. Point No. (viii): Effect of delay in filing a
Criminal Complaint?
14.1. The object and essence of prompt lodging of
FIR had been explained by the Hon'ble Apex
Crl.P. No.4676 of 2020
Court in State of Andhra Pradesh vs M.
Madhusudhan Rao (2008) 15 SCC 582,
observed as under:
14.1.1. That delay in lodging the FIR, more often
than not, results in embellishment and
exaggeration, which is a creature of an
afterthought.
14.1.2. That a delayed report not only gets
bereft of the advantage of spontaneity,
the danger of the introduction of
coloured version, exaggerated account of
the incident or a concocted story as a
result of deliberations and consultations,
also creeps in, casting a serious doubt
on its veracity.
14.1.3. Therefore, it is essential that the delay in
lodging the report should be
Crl.P. No.4676 of 2020
satisfactorily explained. Resultantly,
when the substratum of the evidence
given by the complainant is found to be
unreliable, the prosecution case has to
be rejected in its entirety.
14.2. It is in that background that there is required
to be a Prompt and early reporting of the
incident by the informant with all its vivid
details gives an assurance regarding its true
version. In case, there is some delay in filing
the FIR, the complainant must give an
explanation for the same.
14.3. In Sahib Singh v. State of Haryana (AIR
1997 SC 3247) and Gorge Pentaiah v.
State of A.P. & Ors. (2008) 12 SCC 531 it
has been held that delay in lodging the FIR
does not make the complainant's case
improbable when such delay is properly
explained. However, deliberate delay in
Crl.P. No.4676 of 2020
lodging the Complaint may prove to be fatal.
In such cases the Court has to carefully
examine the facts before it, for the reason,
that the complainant party may initiate
criminal proceedings just to harass the other
side with mala fide intentions or with ulterior
motive of wreaking vengeance. The
proceedings before a court ought not to be
permitted to degenerate into a weapon of
harassment and persecution. In cases, where
an FIR is lodged clearly with a view to spite
the other party because of a private and
personal grudge and to enmesh the other
party in long and arduous criminal
proceedings, the Court may take a view that it
amounts to an abuse of the process of law.
14.4. In the present case the Complaint was filed
with an inordinate delay of nearly six years,
Crl.P. No.4676 of 2020
though the transaction is stated to have
occurred in the year 2014.
14.5. In the Complaint filed there is no
explanation or justification w h i c h has
been given for the unreasonable delay
caused by the Respondent, more so when
the Respondent/Complainant is a
government official.
14.6. Such a delay would result in arriving at a
rebuttable presumption that there was no
offence committed.
14.7. Even if there may be no embellishments,
criminal proceedings cannot be initiated
after a period of 6 years, irrespective of the
applicability of limitation period in terms of
Section 468 of the Cr. P.C or not. The only
excuse for the delay provided is that the
complainant being a government employee
Crl.P. No.4676 of 2020
the process of obtaining permission to file
the complaint took some time. In my
considered opinion a period of 6 years
cannot be said to be some time. It is
required for the state to act with alacrity,
the fact that there was a delay of 6 years in
filing would itself indicate and/or establish
that even the authorities might have
probably considered that there is no offence
as such made out.
14.8. In the present case, I'am of the
considered opinion that there being no
acceptable explanation for the highly
belated lodging of the Complaint, the
delay is fatal to these proceedings.
15. What Order:
16. The answers to the above points formulated are
summarised as under:
Crl.P. No.4676 of 2020
16.1. The order of Cognisance dated 8.6.2020
is not in compliance with the requirement
of Section 191(1)(a) of the Cr.P.C and
further does not indicate the procedure
under Section 204 of Cr.P.C having been
followed. At the time of taking
Cognisance and issuance of process, the
Court taking Cognisance is required to
pass a sufficiently detailed order to
support the conclusion to take
cognisance and issue process, in terms of
the discussion above. The judicious
application of mind to the law and facts
of the matter, should be apparent on the
ex-facie reading of the order of
Cognisance.
16.2. When the accused is having an office,
branch office, corporate office, sales
office or the like within the Jurisdiction of
Crl.P. No.4676 of 2020
the Magistrate where the offence has
been committed and or continues to be
committed, there would be no
requirement for any enquiry under
Section 202 of Cr.P.C. It would, however,
be required for the Magistrate to in the
order of issuance of summons/process
record as to why the enquiry under
Section 202 of Cr.P.C is not being held.
16.3. In the event of accused being an
individual, if the said accused has a
temporary residence within the
Jurisdiction of the Magistrate, again
merely because he does not have a
permanent residence, there is no enquiry
which is required to be conducted under
Section 202 of Cr.P.C. It would, however,
be required for the Magistrate to in the
order of issuance of summons/process
Crl.P. No.4676 of 2020
record as to why the enquiry under
Section 202 of Cr.P.C is not being held.
16.4. When the accused has no presence within
the Jurisdiction of the Magistrate where
the offence has been committed, then it
would be mandatory for an enquiry under
Section 202 of the Cr.P.C to be held.
16.5. In the event of accused being aggrieved
by the issuance of Summons, the said
accused immediately on receipt of the
Summons and/or on appearance before
the Magistrate is required to make out his
grievance before the Magistrate Court
and/or by petition under Section 482
Cr.P.C. If there is any delay, in such
challenge and/or if challenge has not
made within reasonable time, the
accused would not be entitled to raise the
Crl.P. No.4676 of 2020
grievance that the procedure under
Section 202 of Cr.P.C. has not been
followed on account of delay and latches.
16.6. Only a Court in which the accused has a
presence, like registered office, branch
office, corporate office or the like could
exercise Jurisdiction as regards an
offence relating to an e-commerce
transaction.
16.7. This of course would not apply to a Cyber
Crime, which comes under global
jurisdiction according to the IT Act, 2000.
This means that any cyber-crime
complaint can be registered with any of
the cyber cells in India, irrespective of
where the crime was originally
committed.
Crl.P. No.4676 of 2020
16.8. An intermediary as defined under Section
2(w) of the Information Technology Act
or its directors/officers would not be
liable for any action or inaction on part of
a vendor/seller making use of the
facilities provided by the intermediary in
terms of a website or a market place.
16.9. An intermediary would not be responsible
and/or liable for sale of any item not
complying with the requirements under
the Drugs and Cosmetics Act, 1949 on its
platform since the essential ingredients
of Section 18 (1)(c) of the Act not
having been fulfilled. Neither Snapdeal
nor its Directors can be prosecuted for
the offence under Section 27(b)(ii) of
the Act.
16.10. There being no acceptable explanation
for the highly belated lodging of the
Crl.P. No.4676 of 2020
Complaint, the delay is fatal to these
proceedings.
17. In the result, both the petitions are allowed.
The proceedings in C.C.No.156/2020 pending
before the Court of the Principal Senior Civil
Judge and CJM, Mysuru are quashed.
Sd/-
JUDGE
ln
