Madras High Court
K. Ramlal Jain vs Union Of India on 30 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.22845 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.22845 of 2021
and
Crl.M.P.No. 12477 of 2021
K. Ramlal Jain .... Petitioner
Vs
Union of India,
Rep.by D.Hemalatha,
Drug Inspector,
Central Drugs Standard Control Organization,
South Zone, 2nd Floor, Sastri Bhavan Annexe,
Chennai – 600 006. .... Respondent
Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to call for the records connected with C.C.No.25 of
2019 on the file of the III Additional Sessions Judge, City Civil Court,
Chennai and quash the same.
For Petitioner : Mr.N.R.Elango,
Senior Counsel
for S.Baskaran
For Respondent : Mr.L.Infant Dinesh
Central Government Standing Counsel
ORDER
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This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.25 of 2019 on the file of the III Additional
Sessions Judge, City Civil Court, Chennai.
2. Heard the learned counsel appearing on either side and
perused the materials available on record.
3. The respondent filed a complaint for the offence
punishable under Section 13(1)(a) read with Section 9(B)(e) and Section
10(bb) of Drugs and Cosmetics Act 1940 and Section 467 of IPC. The
crux of the complaint is that the petitioner is a proprietor of M/s.Kawrlal
and Co., and he is engaged in import and sale of drugs. He had licence to
sell the drugs in Form 20B and Form 21B issued by the Tamil Nadu
State Licensing Authority. He was issued with a licence to import
Transexamic Acid IP, manufactured by M/s.Shanghai Xiandai Hasen
(Shangqiu) Pharmaceutical Co. Ltd., No.166, Xinging Road, Industrial
Agglomeration Area, Liangyuan District, Shaugqiy City, Henan Province,
China. Under the Drugs and Cosmetics Act any drug can be imported
only from the registered sources by an importer, possessing a valid
import license for the same, from the Office of the Drugs Controller
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General.
4. Accordingly, the petitioner, under the invoice, imported
6000 Kgs Tranexamic Acid BP 2013 from Chinese Trader M/s.Jiangsu
International Eco & Tech Cooperation Group Ltd., filed the bill dated
22.09.2016. It was referred by the customs authority to the Assistant
Drug Controller, Chennai, for opinion on their compliance with the
requirements of Drugs and Cosmetics Act. After scrutiny of the referred
Bill of Entry produced by the petitioner, the following was found
“(i) mismatch of batch numbers in invoice of the imported consignment
with certificate of analysis of confirmation declaration (ii) certificate of
analysis do not have report number, report date, e-mail ID of the
manufacturer and (3) imported consignment was from the Chinese
Trader”. As the consignment was supplied by a Chinese trader, whether
the drugs was manufactured by M/s.Shanghai Xiandai Hasen (Shangqiu)
Pharmaceutical Co. Ltd, was to be verified through e-mail/fax as per the
CDSCO guidance documents of Zonal & Sub-Zonal and Port Officers.
The Assistant Drugs Controller, Chennai, informed the Drug Controller
General and forwarded a copy of Form 41 issued to Indian Agent
M/s.Eastern Chemicals Pvt. Ltd., Mumbai and manufacturer e-
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mail ID as per data available with import division of DCG (I) office on
24.10.2016 with a direction to verify and confirm the authenticity of
consignment.
5. Receipt of the e-mail of the manufacturer from China
intimated that
(i) The referred batches of Tranexamic Acid were not
manufactured by them and they have stopped supplying of Tranexamic
Acid to Indian Market for several months.
(ii) They did not sell Tranexamic Acid to M/s.Jiangsu
International Eco & Tech Cooperation Group Ltd, China and they were
not issued with any sale Invoice and confirmation declaration.
(iii) Their batch numbering system having only one format
of nine numerical is 123456789 as approved by the DCG(I) as per their
registration documents but not alphabet with numerical YFHG160401
and these referred batches were not manufactured by them.
(iv) The sale Invoice received, in mail, menntioning the
Chinese firm name was different from their company name.
6. Thereafter, the Assistant Drugs Controller (India),
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conducted the physical examination of the imported drug and observed
that the label found on all the 240 drums were not labeled with name and
address of the manufacturer, import license number and name and
address of the importer as required under Rule 96 of Drugs and
Cosmetics Act. The Indian agent M/s.Eastern Chemicals Pvt Ltd.,
Mumbai also confirmed the above fact through their letter dated
12.12.2016 and stated that the manufacturer M/s.Shanghai Xiandai
Hasen (Shangqiu) Pharmaceutical Co. Ltd, China, had already closed
manufacturing of Tranexamic Acid from 28.05.2016 and also have not
shipped any material to the market. Hence, the complaint.
7. The basis of allegations of commission of offences are
only by e-mail communications from the personal e-mail account of the
respondenty/complainant. The learned Senior counsel relied upon the
provision under Section 166-A of Cr.P.C. He further submitted that in
this case, though the offences related to foreign country, no CBI enquiry
was ordered. He relied upon the Judgment of this Court in
Crl.O.P.No.16915 and 16955 of 2014 and this Court held as follows :-
“6. Be that as it may, this Court finds it
unnecessary to consider further the facts of the case and
would confine itself to the question of law. For easy
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understanding, Section 166-A Cr.P.C. is extracted
hereunder :
“166-A. Letter of request to competent authority
for investigation in a country or place outside India –
(1) Notwithstanding anything contained in this
code, if, in the course of an investigation into an offence,
an application is made by the investigating officer or
any officer superior in rank to the investigating officer
that evidence may be available in a country or place
outside India, any Criminal Court may issue letter of
request to a Court or an authority in that country or
place competent to deal with such request to examine
orally any person supposed to be acquainted with the
facts and circumstances of the case and to record his
statement made in the course of such examination and
also to require such person or any other person to
produce any document or thing which may be in his
possession pertaining to the case and to forward all the
evidence so taken or collected or the authenticated
copies thereof or the things so collected to the Court
issuing such letter.
(2) The letter of request shall be transmitted in
such manner as the Central Government may specify in
this behalf.
(3) Every statement recorded or document or
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thing received under Sub-section (1) shall be deemed to
be the evidence collected during the course of
investigation under this Chapter.”
7. While the proper investigating agency has
informed inability to proceed u/s.166-A Cr.P.C., this
Court finds that preference of complaint by respondent
would serve no purpose whatsoever, particularly as
records reveal that communications between
respondent/complainant and answering China company
are merely e-mails which bear no digital signature
thereby making unavailable the presumption as to
electronic records and electronic signatures u/s.85-B of
the Indian Evidence Act and in the list of witnesses
informed by respondent/complainant, person/s, who had
authored e-mails addressed to respondent/complainant,
understandably, have not been cited as witnesses.”
8. The above case is squarely applicable to the case on
hand. On this point alone, this Court is inclined to quash the proceedings.
9. Accordingly, the proceedings in C.C.No.25 of 2019 on
the file of the III Additional Sessions Judge, City Civil Court, Chennai, is
hereby quashed and the Criminal Original Petition is allowed.
Consequently, connected miscellaneous petition is closed.
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30.11.2023
Internet: Yes
Index : Yes/No
Lpp
To
1. The III Additional Sessions Judge,
City Civil Court, Chennai.
2. The Drug Inspector,
Union of India,
Central Drugs Standard Control Organization,
South Zone, 2nd Floor, Sastri Bhavan Annexe,
Chennai – 600 006.
3. The Public Prosecutor,
High Court, Madras.
G.K.ILANTHIRAIYAN, J
Lpp
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and
30.11.2023
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