Rakesh Kumar vs State
2022 Latest Caselaw 7276 Kant

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 19TH DAY OF MAY, 2022     R
                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION No.9046   OF 2016
                   CONNECTED WITH
           CRIMINAL PETITION No.2923   OF 2016
           CRIMINAL PETITION No.9047   OF 2016
           CRIMINAL PETITION No.9048   OF 2016

IN CRIMINAL PETITION No.9046 OF 2016

BETWEEN

1.   RAKESH KUMAR
     AGED ABOUT 41 YEARS
     S/O SRI H PARASMAL
     PROPRIETOR OF M/S INTRA LIFE
     WARD NO 48, NO 65,
     1ST FLOOR
     CHENNAMMA MEMORIAL SCHOOL COMPOUND
     BENGALURU - 560027

2.   M/S INTRA LABS
     NO 43/44, P S LANE,
     B R D BUILDING
     CHICKPET CROSS,
     BENGALURU - 560053
     REPRESENTED BY ITS PARTNER

3.   RAKESH KUMAR
     AGED ABOUT 41 YEARS
     S/O SRI H PARASMAL
     R/AT NO 5, FLAT NO 1,
     ANDREE ROAD,
     GOVINDAVILLA APARTMENT
     SHANTHINAGARA
     BENGALURU - 560027
                            2


4.   M/S INTRA LABS INDIA PVT LTD
     NO 45/22
     BHARATHERSHWARA COLONY
     2ND STREET, KODAMBAKKAM
     CHENNAI - 600024
     REPRESENTED BY ITS
     MANAGING DIRECTOR

5.   SRI H PARASAMAL
     AGED ABOUT 68 YEARS
     S/O SRI HAZARIMAL
     R/AT NO 92/40
     ETA GARDENS
     F804, MAGADI ROAD
     BENGALURU - 560023

6.   M/S SURIEN PHARMACEUTICALS P LTD
     NO 108,
     CHEKKADI STREET KOVUR,
     CHENNAI - 602101
     REPRESENTED BY ITS
     MANAGING DIRECTOR

7.   SRI R KRISHNAMOORTHY
     AGED ABOUT 47 YEARS
     S/O SRI RAMASWAMY UDAYAR
     R/AT OLD NO 2/1, NEW NO3,
     BAJANIKOVIL 3RD STREET
     CHOOLAIMEDU
     CHENNAI - 600094

8.   SRI R TAMARAI KANNAN
     AGED ABOUT 32 YEARS
     S/O SRI M SANTHAPPAN
     PROPRIETOR
     OF M/S SURIEN PHARMACEUTICALS
     R/AT NO 6/36C
     MARATHAVIYAN KOILTHOTTAM
     KANAVAIPATTY,
     KAMARAJANAGARA POST
     KARKOODALPATTY - 636202
                                3


      RASIPURAM TALUK,
      NAMAKKAL DISTRICT
      TAMIL NADU
                                         ... PETITIONERS
(BY SRI DESU REDDY G, ADVOCATE)

AND

STATE OF KARNATAKA
AT THE INSTANCE OF
DRUGS INSPECTOR
MANDYA CIRCLE
MANDYA - 571 402.
                                        ... RESPONDENT
(BY SRI VINAYAKA V.S., HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS
PENDING ON THE FILE OF THE LEARNED PRL. CIVIL JUDGE AND
JMFC, MANDYA IN C.C.NO.202/2016.

IN CRIMINAL PETITION No.2923 OF 2016

BETWEEN

1.    RAKESH KUMAR
      AGED ABOUT 41 YEARS
      S/O SRI H PARASMAL
      PROPRIETOR OF M/S INTRA LIFE
      WARD NO 48, NO 65,
      1ST FLOOR
      CHENNAMMA MEMORIAL SCHOOL COMPOUND
      BENGALURU - 560027

2.    M/S INTRA LABS
      NO 43/44
      P S LANE,
      B R D BUILDING
      CHICKPET CROSS,
      BENGALURU - 560053
      REPRESENTED BY ITS PARTNER
                             4


3.   RAKESH KUMAR
     AGED ABOUT 41 YEARS
     S/O SRI H PARASMAL
     R/AT NO 5, FLAT NO 1,
     ANDREE ROAD, GOVINDAVILLA APARTMENT
     SHANTHINAGARA
     BENGALURU - 560027

4.   M/S INTRA LABS INDIA PVT LTD
     NO 45/22
     BHARATHERSHWARA COLONY
     2ND STREET, KODAMBAKKAM
     CHENNAI - 600024
     REPRESENTED BY ITS
     MANAGING DIRECTOR

5.   SRI H PARASAMAL
     AGED ABOUT 68 YEARS
     S/O SRI HAZARIMAL
     R/AT NO 92/40
     ETA GARDENS
     F804, MAGADI ROAD
     BENGALURU - 560023

6.   M/S SURIEN PHARMACEUTICALS (P) LTD.,
     NO 108, CHEKKADI STREET KOVUR,
     CHENNAI - 602 101
     REPRESENTED BY ITS
     MANAGING DIRECTOR

7.   SRI R KRISHNAMOORTHY
     AGED ABOUT 47 YEARS
     S/O SRI RAMASWAMY UDAYAR
     R/AT OLD NO 2/1, NEW NO3,
     BAJANIKOVIL 3RD STREET
     CHOOLAIMEDU
     CHENNAI - 600094

8.   SRI R TAMARAI KANNAN
     AGED ABOUT 32 YEARS
     S/O SRI M SANTHAPPAN
                                5


      PROPRIETOR OF M/S SURIEN PHARMACEUTICALS
      R/AT NO 6/36C
      MARATHAVIYAN KOILTHOTTAM
      KANAVAIPATTY,
      KAMARAJANAGARA POST
      KARKOODALPATTY - 636202
      RASIPURAM TALUK
      NAMAKKAL DISTRICT
      TAMIL NADU
                                       ... PETITIONERS
(BY SRI DESU REDDY G, ADVOCATE)

AND

STATE OF KARNATAKA
AT THE INSTANCE OF
DRUGS INSPECTOR
MANDYA CIRCLE
MANDYA - 571 402.
                                           ... RESPONDENT
(BY SRI VINAYAKA V.S., HCGP)
      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS
PENDING ON THE FILE OF THE LEARNED PRL. CIVIL JUDGE AND
JMFC, MANDYA IN C.C.NO.1821/2015.
IN CRIMINAL PETITION No.9047 OF 2016
BETWEEN

1.    SRI TAMARAI KANNAN
      AGED ABOUT 32 YEARS
      S/O SRI M SANTHAPPAN
      PROPRIETOR
      OF M/S SURIEN PHARMACEUTICALS
      R/AT NO 6/36C MARATHAVIYAN
      KOILTHOTTAM
      KANAVAIPATTY
      KAMRAJANAGARA POST
      KARKOODALPATTY - 636202 RASIPURAM
      TALUK NAMAKKAL DISTRICT TAMIL NADU
                              6


2.   M/S SURIEN PHARMACEUTICALS P LTD
     NO 108, CHEKKADI STREET
     KOVUR
     CHENNAI - 602101
     REPRESENTED BY ITS MANAGING DIRECTOR

3.   SRI R KRISHNAMOORTHY
     AGED ABOUT 47 YEARS
     S/O SRI RAMASWAMY UDAYAR
     R/AT OLD NO 2/1
     NEW NO 3, BAJANIKOVIL 3RD STREET
     CHOOLAIMEDU
     CHENNAI - 600094

4.   M/S INTRA LABS INDIA PVT LTD
     NO 45/22
     BHARATHERSHWARA COLONY
     2ND STREET
     KODAMBAKKAM
     CHENNAI - 600024
     REPRESENTED BY ITS
     MANAGING DIRECTOR

5.   SRI H PARASAMAL
     AGED ABOUT 68 YEARS
     S/O SRI HAZARIMAL R/AT NO 92/40
     ETA GARDENS, F804
     MAGADI ROAD,
     BENGALURU - 560023

6.   M/S INTRA LABS
     NO 43/44, P S LANE
     B R D BUILDING
     CHICKPET CROSS BENGALURU - 560053
     REPRESENTED BY ITS PARTNER

7.   RAKESH KUMAR
     AGED ABOUT 41 YEARS
     S/O SRI H PARASMAL
     R/AT NO 5, FLAT NO 1,
     ANDREE ROAD,
                                7


      GOVINDAVILLA APARTMENT
      SHANTHINAGARA
      BENGALURU - 560027

8.    RAKESH KUMAR
      AGED ABOUT 41 YEARS
      S/O SRI H PARASMAL PROPRIETOR
      OF M/S INTRA LIFE,
      WARD NO 48,
      NO 65,
      1ST FLOOR,
      CHENNAMMA MEMORIAL SCHOOL
      COMPOUND,
      BENGALURU - 560027
                                         ... PETITIONERS
(BY SRI DESU REDDY G, ADVOCATE)

AND

STATE AT THE INSTANCE OF ASSISTANT OF DRUGS
CONTROLLER - 1,
OFFICE OF THE DEPUTY DRUGS
CONTROLLER REGIONAL OFFICE,
TUMKUR - 572101.                        ... RESPONDENT

(BY SRI VINAYAKA V.S., HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS
PENDING ON THE FILE OF THE LEARNED PRL. CIVIL JUDGE AND
JMFC, MADHUGIRI IN C.C.NO.1459/2015.

IN CRIMINAL PETITION No.9048 OF 2016
BETWEEN

1.    SRI TAMARAI KANNAN
      AGED ABOUT 32 YEARS
      S/O SRI M SANTHAPPAN
      PROPRIETOR
      OF M/S SURIEN PHARMACEUTICALS
      R/AT NO 6/36C MARATHAVIYAN
                            8



     KOILTHOTTAM, KANAVAIPATTY
     KAMRAJANAGARA POST
     KARKOODALPATTY - 636202
     RASIPURAM TALUK
     NAMAKKAL DISTRICT
     TAMIL NADU

2.   M/S SURIEN PHARMACEUTICALS (P) LTD
     NO 108, CHEKKADI STREET
     KOVUR
     CHENNAI - 602101
     REPRESENTED BY ITS MANAGING DIRECTOR

3.   SRI R KRISHNAMOORTHY
     AGED ABOUT 47 YEARS
     S/OS RI RAMASWAMY UDAYAR
     R/AT OLD NO 2/1
     NEW NO 3, BAJANIKOVIL, 3RD STREET
     CHOOLAIMEDU
     CHENNAI - 600 094

4.   M/S INTRA LABS INDIA PVT LTD
     NO 45/22
     BHARATHERSHWARA COLONY
     2ND STREET
     KODAMBAKKAM
     CHENNAI - 600024
     REPRESENTED BY ITS
     MANAGING DIRECTOR

5.   SRI H PARASAMAL
     AGED ABOUT 68 YEARS
     S/O SRI HAZARIMAL
     R/AT NO 92/40
     ETA GARDENS, F804
     MAGADI ROAD,
     BENGALURU - 560023

6.   M/S INTRA LABS
     NO 43/44, P S LANE
     B R D BUILDING, CHICKPET CROSS
                                9


      BENGALURU - 560053
      REPRESENTED BY ITS PARTNER

7.    RAKESH KUMAR
      AGED ABOUT 41 YEARS
      S/O SRI H PARASMAL
      R/AT NO 5, FLAT NO 1,
      ANDREE ROAD,
      GOVINDAVILLA APARTMENT
      SHANTHINAGARA
      BENGALURU - 560027

8.   RAKESH KUMAR
     AGED ABOUT 41 YEARS
     S/O SRI H PARASMAL
     PROPRIETOR OF M/S INTRA LIFE,
     WARD NO 48, NO 65,
     1ST FLOOR,
     CHENNAMMA MEMORIAL SCHOOL COMPOUND,
     BENGALURU - 560027
                                     ... PETITIONERS
(BY SRI DESU REDDY G, ADVOCATE)

AND

STATE AT THE INSTANCE OF ASSISTANT
DRUGS CONTROLLER - 1,
OFFICE OF THE DEPUTY DRUGS
CONTROLLER REGIONAL OFFICE,
TUMKUR - 572101.                        ... RESPONDENT

(BY SRI VINAYAKA V.S., HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS
PENDING ON THE FILE OF THE LEARNED PRL. CIVIL JUDGE AND
JMFC, TIPTUR IN C.C.NO.1197/2015.

     THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.04.2022 THIS DAY THROUGH
VIDEO CONFERENCING, THE COURT PRONOUNCED THE
FOLLOWING:
                               10




                              ORDER

Crl.P.No.9046/2016 is filed by petitioners-accused

Nos.2 to 9 under Section 482 of Cr.P.C for quashing the

criminal proceedings in C.C.No.202/2016 pending on the

file of the Principal Civil Judge and JMFC, Mandya for the

offence punishable under Sections 26-A punishable under

Section 28-B of the Drugs and Cosmetics Act, 1940

(hereinafter referred to as 'D.C. Act').

2. Crl.P.No.2923/2016 is filed by the petitioners-

accused Nos.4 to 11 under Section 482 of Cr.P.C. for

quashing the criminal proceedings in C.C.No.1821/2015

pending on the file of Principal Civil Judge and JMFC,

Mandya for the above said offences.

3. Crl.P.No.9047/2016 is filed by the petitioners-

accused Nos.1 to 8 under Section 482 of Cr.P.C. for

quashing the criminal proceedings in C.C.No.1459/2015

pending on the file of the Additional Civil Judge and JMFC,

Madhugiri, Tumkur for the above said offences.

4. Crl.P.No.9048/2016 is filed by the petitioners-

accused Nos.1 to 8 under Section 482 of Cr.P.C. for

quashing the criminal proceedings in C.C.No.1197/2015

pending on the file of Principal Civil Judge and JMFC,

Tiptur, Tumkur District for the similar offences.

5. Heard the arguments of Sri Desu Reddy.G,

learned counsel for the petitioners and learned High Court

Government Pleader for the respondent-State in all the

cases.

6. The case of the prosecution in

Crl.P.No.9046/2016 is that the respondent-complainant

who is the Drugs Inspector appointed under Section 21 of

the D.C. Act who has been posted as Assistant Drugs

Controller-2, Tumkur Circle has filed a complaint under

Section 200 of Cr.P.C. read with Section 26-A of the D.C.

Act alleging that the petitioners are said to be the

Manufacturers as well as Distributors of the drugs. That

on 25.11.2010, the then Assistant Drugs Controller,

Mandya Circle, Mandya have investigated the matter at

M/s. Green Pharma, Shop No.3, 1st Floor, Vinobha Nagar,

Subashnagar, Mandya and found the stock Quantity of

25x100ml of prohibited drug VENTASOL-AX Expectorant

100ml manufactured by accused No.9-M/s.Surien

Pharmaceuticals at Puducherry and accused No.1 is said to

be the Proprietor-cum-Competent person of M/s.Green

Pharma, Mandya to dispose the stocks and further

prohibited periodically for a period of every 20 days, till the

date of seizure. Subsequently, during the investigation,

CW.2 received a letter from accused No.1 who is a

Proprietor-cum-Competent person of M/s.Green Pharma,

Mandya along with the sales distribution details of

prohibited drug. In the said letter, accused No.1 has

informed that they had purchased the said prohibited drug

from accused No.2-M/s.Intra Life at Bengaluru. On

30.11.2010, they had also received a letter from accused

No.1-Jayaramu, the Proprietor-cum-Competent person of

M/s.Green Pharma, Mandya. In the said letter, accused

No.1 has informed about the non-availability of the said

prohibited drug to whom they are supplied. Subsequently,

on 09.02.2011, CW.2 drawn a legal sample of VENTASOL-

AX and sent to chemical lab and they found that the said

fixed dose combination being prohibited for Manufacture,

Sale and Distribution under the Notification No.GSR 578

(E), dated 23.07.1983 which was further substituted vide

G.S.R 290(E) dated 16.04.2008. Accordingly, the

complaint came to be lodged on 29.04.2015 and the trial

Court by condoning the delay under Section 473 of Cr.P.C.

read with Section 5 of the Limitation Act, took cognizance

against the accused persons and issued summons which is

under challenge.

7. In Crl.P.No.2923/2016 a similar complaint

came to be filed by the Drugs and Cosmetics Department

on 18.03.2015 before the Principal Civil Judge and JMFC,

Mandya against eight accused persons for having found

selling the prohibited drugs as per the Notification stated

above by the Central Government and after drawing

samples which was subjected to chemical analysis had filed

a complaint, the trial Court took cognizance of the offences

and issued summons by allowing the application and

condoned the delay under Section 473 of the Cr.P.C. which

is under challenge.

8. Crl.P.No.9047/2016 is also filed by the similar

complainant by Drugs and Cosmetics Department before

the Additional Civil Judge and JMFC, Madhugiri, Tumkur

District in PCR No.38/15 under Section 200 of Cr.P.C. read

with Section 28-B of the D.C. Act where the trial Court

after dispense with recording of sworn statement, took

cognizance and issued the summons to the petitioner

which is under challenge.

9. In Crl.P.No.9048/2016, a similar complaint

filed by the Drugs and Cosmetics Department before the

Principal Civil Judge and JMFC, Tiptur, Tumkur District in

PCR, the same is numbered as C.C.No.1197/2015 for

similar allegation against accused Nos.1 to 11 alleging that

the petitioners are said to be manufacturers as well as

distributors of the prohibited drugs which was as per the

Notification of the Central Government and after receipt of

the complaint, the trial Court by condoning the delay under

Section 473 of Cr.P.C. took cognizance and issued

summons to accused Nos.1 to 11 and hence, the

petitioners are before this Court.

10. Learned counsel appearing for the petitioners

in all four petitions has strenuously contended that the

alleged offences in all four cases are said to have been

committed in the year 2008, but the complaint came to be

filed after three years belatedly and the trial Court though

allowed the delay application under Section 473 of Cr.P.C.,

but no notice has been issued to the petitioners before

condoning the delay. Therefore, the order of the

Magistrate for condoning the delay under Section 473 of

Cr.P.C. is not sustainable and filing the complaint after

three years for the offence punishable up to three years

and as per Section 468 of Cr.P.C., three years is limitation

and beyond three years, no Court can take cognizance for

the offence punishable under any offence which is

punishable from one year to three years. Therefore, taking

cognizance is barred by the limitation and therefore, on

that ground, learned counsel for the petitioners seeking for

quashing the criminal proceedings in all four cases.

11. Learned counsel for the petitioners also

submits that even though the learned Magistrate in three

cases have passed an order by condoning the delay, but,

in one case i.e. Crl.P.No.9047/2016, there is no order for

condoning the delay and also no order has been passed for

taking cognizance and blindly issued the summons,

therefore, the Crl.P.No.9047/2016 is also not sustainable

for taking cognizance and it is liable to be quashed.

12. Learned counsel for the petitioners also

seriously contended that as per Section 19(3) of the D.C.

Act, except the manufacturer, the distributors and sellers

are not liable for any prosecution for any contravention

under Section 80 of the D.C. Act. Except the manufacturer,

the Tamarai Kannan who is the proprietor of M/s. Surien

Pharmaceuticals, Puducherry and others are distributors

are not at all liable for any prosecution as the

manufacturer has not informed them regarding banning of

the VENTASOL-AX Expectorant Drugs by the Central

Government and they have purchased and sold the same

to the public. Therefore, there is no criminality to attract

against any of the distributor and sellers of the said drugs.

The learned counsel also contended that even otherwise,

Tamarai Kannan who is the proprietor of M/s. Surien

Pharmaceuticals who has obtained the license from the

Pondicherry Government vide due license and

manufacturing the drugs and even if before banning the

drugs, there is no notice issued to the petitioner-

manufacturer by the Inspector for stopping the

manufacture and all these drugs were manufactured

before banning the Notification issued by the Government

and further contended that the Delhi High Court has

quashed all the Notifications of the Central Government

issued between 1983 till 2012 and thereby, filing complaint

under the same Notification for banning drugs does not

arise. When the manufacturer having valid license who

manufactured the drugs which is of a standard quality as

per the very report of the FSL filed by the Government

Analyst Report, such being the case, it cannot be said that

it is spurious drugs in order to ban or seize and to say that

there is contravention of Section 18 or Section 26 of the

D.C. Act. Therefore, on that ground, the learned counsel

for the petitioners seeking for quashing the criminal

proceedings as abuse of process of law. In support of his

contention, the learned counsel has relied upon the

following judgments of the Hon'ble Supreme Court as well

as various judgments of other High Courts:

1) M/s. Sanjeevini Medical & General Stores & another vs. State of Karnataka reported in 2011 (2) Drugs Cases (DC) 18. (Karnataka High Court)

2) State of Maharashtra vs. Devahari Devasingh Pawar & others reported in 2008 Drugs Cases (DC) 158.

3) Pfizer Limited & anr. vs. Union of India & anr. reported in 2016(2) Drugs Cases (DC) 240. (Delhi High Court)

4) P.K. Choudhury vs. Commander, 48 BRTF (GREF) in Crl.A.No.480/2008 (arising out of SLP(Crl.) No.5911 of 2006).

5) Mohinder Kaur vs. State of Punjab in Crl. Appeal No.490 of 2008 (Arising out of SLP (Crl.) No.8213 of 2007).

6) Jethmal Himmatmal Jain and others vs. The State of Maharashtra in Crl.A.No.1399/1980 dated 12.03.1981 (Bombay High Court)

7) M/s. Earnest Co. Indore and another vs. The State of Madhya Pradesh in Criminal Revision No.63/1990, dated 27.07.1990 of Madhya Pradesh High Court, Indore Bench. (Madhya Pradesh High Court)

8) Sanofi India Limited and anr. vs. Union of India & anr. reported in 2021(2) Drugs Cases (DC) 50. (Delhi High Court)

9) State of M.P., through Drug Inspector, Ratlam vs. Jyotibai Bhagwandas Modi and others in Criminal Revision No.104/1988 dated 06.09.1990 of Madhya Pradesh High Court-Indore Bench.

10) Radhey Sham vs. State of Punjab reported in 2015(1) Drugs Cases (DC) 306 of Punjab and Haryana High Court.

11) Baljit Singh vs. State of Punjab in CRM No.M- 26116 of 2013 (O&M) dated 30.08.2013 of Punjab and Haryana High Court.

12) Madan Lal vs. The State of Punjab and others in Crl.Revision No.755/1979 dated 22.09.1981 of Punjab and Haryana High Court.

13) State vs. Romesh Chander in Criminal Appeal No.73-D of 1961 dated 27.03.1962 of Punjab High Court.

14) Ashok Kumar Tyagi vs. State of H.P. and others reported in 2015(1) Drugs Cases (DC) 185 of Himachal Pradesh High Court.

13. Per contra, the learned High Court Government

Pleader seriously objected the petition and contended that

as regards to the delay, the complaint came to be filed

under Section 200 of Cr.P.C. and along with the complaint,

they have filed an application under Section 473 of Cr.P.C.

for condoning the delay and also for extension of the time

for taking cognizance as per Section 468 of Cr.P.C. The

learned Magistrate in all three cases has passed a

considerable order and accepted the reason assigned by

the complainant and condoned the delay under Section

473 of Cr.P.C., took cognizance under Section 473

application is filed, there is no necessity for the Magistrate

to issue notice to the accused before passing order for

condoning the delay and therefore, it is contended that on

the ground of delay, the proceeding cannot be quashed.

Though the learned High Court Government Pleader also

submits that in one case, though learned Magistrate has

not passed any elaborate order, but he has taken

cognizance of course without condoning the delay. But

once the Magistrate taken cognizance by application of

mind, at this stage, it cannot be considered that there is

delay in filing the complaint. It is also contended by

learned High Court Government Pleader that the delay was

caused which is satisfactorily explained by the complainant

where all the documents were seized by the CBI in the

investigation and they have provided the documents only

after two to three years. Therefore, after receiving the

documents, the complaint came to be filed. Therefore,

absolutely, there is no delay in lodging the complaint even

otherwise the delay was satisfactorily explained by the

State, therefore, prayed for dismissing the petition.

14. Learned High Court Government Pleader

further contended that as per Section 19(3) of D.C. Act, it

is stated that including the manufacturer, the dealer are all

liable to prosecute, if there is any contravention under

Section 18 of the D.C. Act and as per Section 32 of the

Act, in the company who are responsible for the company

including the Director, Pharmacist or any other person who

are responsible for manufacturing of the drugs are all liable

for prosecution. Such being the case, the petitioner cannot

take shelter under Section 19(3) of the D.C. Act.

Therefore, prayed for dismissing the petition. Learned High

Court Government Pleader also submits that the Central

Government once issued the notice, if any license issued

by the State Government which supersedes the Central

Government Notification and thereby, the prohibition of

the manufacture of the drugs is impermissible. Therefore,

if any drugs manufactured subsequent to the banning of

the drugs is an offence under the D.C. Act. Therefore, the

accused persons are manufacturers and distributors of the

VENTASOL-AX Expectorant, therefore, they are liable for

prosecution. If at all, they have no knowledge regarding

cognizance, they can take a plea under Section 19(1) of

the D.C. Act. Therefore, the petitioners are required to

face the trial before the Magistrate and they should

establish the case, that they have no knowledge in respect

of the drugs sold by them which was banned by the

Central Government. Hence, prayed for dismissing all the

petitions.

15. Learned High Court Government Pleader has

also relied upon the judgment of the Hon'ble Supreme

Court in the case of Vincent Panikurlangara vs. Union

of India and Others reported in (1987) 2 SCC 165.

16. Learned counsel for the petitioner also

contended that even the license is not yet renewed and

that will not come to the aid. The license already

surrendered by the petitioner and later cancelled on

28.02.2012 before filing the complaint.

17. Having heard the arguments of learned counsel

for the parties and on perusal of the records, the

prosecution came to be launched against the petitioners

under the D.C. Act for having found selling the drugs which

were banned by the Central Government by its Notification

i.e., VENTASOL-AX. Admittedly, accused No.9-M/s.Surien

Pharmaceuticals who is the manufacturer at Pondicherry,

they have obtained the license by his proprietor one

Tamarai Kannan and accused No.2-M/s.Intra Life at

Bengaluru are the distributor of the said drugs

manufactured by accused No.1. Learned counsel for the

petitioner has mainly challenged in respect of taking

cognizance by the learned Magistrate against the petitioner

on the ground No.1 that there was delay in lodging the

complaint. The complaint itself is barred by limitation. The

offence punishable against the petitioner is upto three

years. Therefore, Section 28B of the D.C. Act is punishable

with three years. Therefore, cognizance must have been

taken within three years from the date of offence. Though

the trial Court has condoned the delay as per Section 473

of Cr.P.C., but no notice was issued to the petitioner

before condoning the delay.

18. Learned counsel for the petitioners has relied

upon the judgment of the Hon'ble Supreme Court in this

regard in the case of P.K. Choudhury stated supra, in the

similar situation, the Hon'ble Supreme Court has held that

before condoning the delay, the accused is entitled to get

an opportunity of being heard before the delay could be

condoned. The same view was taken by the Bombay High

Court in the case of Jethmal Himmatmal Jain stated

supra, where it has been held that the Magistrate was

required to be satisfied it was also necessary for the

Magistrate to be satisfied after giving an opportunity for

the accused of being heard. The same view was taken by

the Madhya Pradesh High Court in the case of Earnest

Company Indore and others stated supra that before

condoning the delay under Section 473 of Cr.P.C., the

accused shall be heard on the application. The Delhi High

Court also in a recent judgment in the case of Sanofi

India Limited stated supra has taken a similar view.

19. On considering the facts and circumstances of

the case, admittedly the learned Magistrate has condoned

the delay in three cases i.e., in C.C.Nos.202/2016,

1821/2015 and 1459/2015, but in Crl.P.No.9047/2016

challenged in respect of C.C.No.1459/2015, the learned

Magistrate has not condoned the delay in filing the

complaint and also not taken any cognizance, but has

simply issued the summons to the accused persons.

Absolutely, the order sheet of the trial Court in all four

cases clearly reveals that the learned Magistrate before

condoning the delay under Section 473 of Cr.P.C., and no

notice was issued to the accused/petitioners while

condoning the delay. In another case i.e.,

C.C.No.1459/2015, even the delay was not condoned and

even the cognizance was also not taken and simply issued

notice. Therefore, in my view, taking cognizance against

the petitioners in all four cases by the learned Magistrate is

liable to be set aside and the matter is required to be

remanded back for giving an opportunity for the

petitioners-accused for filing or raising their objection on

the delay application and thereafter, the Magistrate shall

have to pass an order by application of mind satisfying the

delay caused to the complainant in filing the complaint.

Though the learned High Court Government Pleader

argued that all the documents were seized by the CBI and

vested with the CBI and they have given the documents

only after three years, therefore, there was delay in filing

the complaint. Whatever may be the reason, that has to be

considered by the Magistrate only after giving an

opportunity to the accused persons while condoning the

delay, otherwise for taking cognizance, there is a bar

under Section 468 of Cr.P.C. Therefore, the contention of

learned High Court Government Pleader is not sustainable.

Accordingly, the taking cognizance by the Magistrate in all

the four cases is liable to be set aside.

20. The another contention raised by the learned

counsel for the petitioners is that except the manufacturer,

the dealers and others are not liable for prosecution as per

Section 19(3) of the D.C. Act. For the sake of convenience,

the provisions of Section 19(3) is read as hereunder:

"19(3): A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves--

(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;

(b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and

(c) that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquired it."

21. On bare reading of the provision, it says that a

person, not being manufacturer of a drug or cosmetic or

his agent for the distribution there of, shall not be liable for

contravention of Section 18 of the D.C.Act, if he proves,

the provision reveals that except the manufacturer and

distributors, others required to prove the criteria of Section

19(3)(a)(b)(c) stated above which is applicable to the

retailer or the pharmacists, but the manufacturer and

distributor cannot take shelter under Section 19(3) of the

D.C. Act. As per Section 19, the manufacturer can take

the plea in respect of the test analysis. Therefore, the

petitioners are the manufacturers and distributors of the

VENTASOL-AX drugs. If at all, any defence available to

them as per Section 19(3)(a)(b)(c), it has to be reverse

burden on the accused to prove that they have purchased

from duly manufacturer or distributor or the ignorance of

the banned drugs or any contravention of the provisions of

that Section and the drugs which was in possession was

properly stored and remain in the same that as when he

acquired it. Therefore, this ground is available to the

accused persons only during the trial and they can take

defence during the trial. Therefore, that ground is not

available to the petitioners under Section 482 of Cr.P.C.

Therefore, on that ground, the criminal proceedings cannot

be quashed.

22. As regards to the other contention taken by

learned counsel that as per the drug analysis report, the

drug is of standard quality, therefore, three months notice

is required to be issued to the petitioners-manufacturers

under Section 16(2) of the D.C. Act. On bare reading of

the provisions, of course, the Government has issued

Notification after consideration with the Board regarding

amendment of the 2nd schedule for the purpose of the

Chapter 4, then only a notice is required to be issued. But

here in this case, the Central Government has issued

notice by banning the VENTASOL-AX drugs manufactured

by the petitioner-company. Such being the case, the

contention of the petitioner cannot be available at this

stage and they can take as a defence during the trial.

Therefore, that contention also not available to the

petitioner.

23. The another contention raised by the learned

counsel for the petitioners is that the Delhi High Court has

quashed all the Notifications issued by the Central

Government in the case of Pfizer Limited & anr. stated

supra where 344 Notifications were quashed by Delhi High

Court, those Notifications were issued by the Government

by exercising the power under Section 26A of the D.C. Act.

In the said case, where the manufacturers have challenged

the issuance of notices and subsequently, they have also

filed an applications before the Committee and the said

Committee have not considered their applications. But

here in this case, it is not clear as to whether the notice

issued by the Central Government by banning the

manufacture of VENTASOL-AX drugs by accused No.1 has

been quashed by the Delhi High Court and the petitioner

is also not a party to the said case challenged the said

Notifications issued against this petitioner. On the other

hand, the Hon'ble Supreme Court has held in the case of

Vincent Panikurlangara stated supra where the Writ

Petition were filed for withdrawal of 7,000 fixed dose

combinations and withdrawal of license of manufacturers

engaged in manufacture of about 30 drugs which have

been licensed by the Drugs Control Authorities which were

challenged and the Hon'ble Supreme Court has held that

the Government has power to issue such notices in the

interest of public at large and have taking health care of

the public.

24. Though the learned counsel for the petitioner

also contended that the petitioner-accused No.1 was

licensed drug manufacturer and license was renewed by

the Pondicherry Government, but the Pondicherry

Government was issued license for manufacture of drugs,

but the Central Government is empowered under the D.C.

Act for issuing any Notifications and Section 16(a) and 26A

of D.C. Act. Therefore, once the Central Government

issued Notification by acting under Section 26A of the Act

banning the drugs manufactured by the petitioner-accused

No.1-company, he cannot take any shelter for quashing

the criminal proceedings and he can take as a ground

before the Magistrate. Therefore, the ground urged by

learned counsel is not sustainable under the law.

25. In view of my reasons in respect of point No.1-

on the ground of delay, all the four petitions are liable to

be allowed-in-part. Accordingly, all four criminal petitions

are allowed-in-part.

Taking cognizance by the Magistrate in all four cases

and issuing notice to the accused persons as well as

condoning delay in filing the complaint under Section 473

of Cr.P.C. in three cases are hereby set aside and the

matter is remanded back to the Magistrate for giving an

opportunity to the petitioners being heard under Section

473 of Cr.P.C. application and pass an appropriate order

for condoning the delay in all four cases, if it is

satisfactorily explained by the complainant and thereafter,

the trial court can proceed in accordance with law.

Sd/-

JUDGE

GBB