Sikkim High Court
Union Of India vs M/S Mukul Enterprises And Anr on 21 May, 2025
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 21st May, 2025
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl.L.P. No.03 of 2024
Petitioner : Union of India
versus
Respondents : M/s. Mukul Enterprises and Another
Application under Section 378(3) of the
Code of Criminal Procedure, 1973
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Appearance
Ms. Sangita Pradhan, Deputy Solicitor General of India with Ms.
Natasha Pradhan and Ms. Sittal Balmiki, Advocates for the Petitioner.
Mr. Sudesh Joshi, Advocate with Mr. Uma Shankar Sarda and Mr.
Adarsh Gurung, Advocates for the Respondents.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Petitioner has filed the instant application under
Section 378(3) of the Code of Criminal Procedure, 1973, seeking
leave to file Appeal, to assail the Judgment, dated 31-05-2022, of
the Court of the Learned Special Judge (Drugs and Cosmetics Act,
1940), Gangtok, in Sessions Trial (D&C Act, 1940) Case No.01 of
2018 (Union of India vs. M/s. Mukul Enterprises and Another), which
acquitted the Respondent No.2.
2. Learned Deputy Solicitor General of India submits that,
leave may be granted to the Petitioner to file the Appeal as the
Learned Trial Court failed to appreciate the legal position of the
present case, which fell under Chapter IV of the Drugs and
Cosmetics Act, 1940 (for short, "DC Act") wherein Sanction for
prosecution is not mandatory. Learned Deputy Solicitor General
Union of India vs. M/s. Mukul Enterprises and Another
added that the Learned Trial Court also did not consider the
admission of the Accused Respondent No.2 herein, that he had
supplied rolled bandages, with batch no.014 to the Complainant and
overlooked the forensic report that had concluded that, the
bandages, the articles in question in the Complaint, were spurious
and of substandard quality. The Learned Trial Court was of the view
that independent witnesses were required at the time of lifting
samples, which is clearly not the demand of the Statute, apart from
which the Trial Court failed to consider that the Drug Inspector has
powers and duties to conduct regular sampling of at least ten
articles/medicines in a month when he considers the articles to be
suspicious. The Learned Trial Court ignored the evidence furnished
by the Appellant and concluded that the Prosecution had failed to
prove its case and thereby acquitted the Appellant No.2. That, the
interest of justice would be served if the leave to Appeal is granted.
3. Per contra, it was argued by Learned Counsel for the
Respondents that requisite procedure prescribed by the Statute was
not followed by the Prosecution (the Petitioner herein) and the
various provisions, as pointed out by the Learned Trial Court, in the
impugned Judgment, including Section 22(cc) & (cca) and Section
22(2) of the DC Act were not complied with. Granting leave to
Appeal would be to the detriment of the Respondents as no
materials for Prosecution have been furnished by the Petitioners.
4. We have heard the Learned Counsel for the parties in
extenso. We have also perused the impugned Judgment.
5. The Trial Court in the impugned Judgment framed the
following question for determination;
Union of India vs. M/s. Mukul Enterprises and Another
(a) That, M/s. Mukul Enterprises (A1) under the proprietorship
and control of accused Md. Mohdul Islam (A2) had sold
spurious drugs, i.e., rolled bandages above, purportedly
manufactured by a fictitious Company.
6. The Learned Trial Court examined the evidence of six
witnesses examined by the Complainant/Appellant herein, before the
Court and noted that owing to certain procedural irregularities and
non-compliance with the mandatory provisions of the DC Act, the
case is liable to fail. The Court noted that, it was the case of the
Complainant that the rolled bandages had been lifted from the
medical store of the Central Health Store Organisation (CHSO),
Health Department, where admittedly no Stock Register or
Inventory Register or any document showing that the said items was
stored in the said place were produced before the Court. CW5 and
CW2 admitted as much. It was further observed that no independent
witnesses were joined while conducting the search, followed by the
seizure of the alleged spurious rolled bandages. The procedure
prescribed under Section 23 of the DC Act was also not complied
with which required the Inspector to show that one portion of the
samples was sent to the alleged retailer/supplier, i.e., the Accused,
as mandated by Section 23(4)(ii) and (iii) of the DC Act. Further,
one portion of the concerned samples which was required to be
forwarded to the Court was deposited before the Court of the
Learned Chief Judicial Magistrate only at the time of filing of the
Complaint and not immediately after the seizure of the samples as
mandated by Statute. This was admitted by the Complainant
himself with no explanation for the delay. Neither CW-5 nor the
Complainant CW-4 had supplied a copy of the report of the
Government Analyst to the Accused (A2), which seriously violated
the right of the Accused to obtain a re-test of the sample within a
Union of India vs. M/s. Mukul Enterprises and Another
reasonable time. That, Section 25(2) of the DC Act mandates that
a copy of the report of the Government Analyst must be made
available to the Accused. Non-supply of the report has proved fatal
to the Complainant‟s case and prejudiced the Accused. The Learned
Trial Court went on to hold that no evidence indicated the conditions
of storage of the rolled bandages in the CHSO while the Complainant
or CW-5 failed to shed light on this aspect. Besides the above
infirmities, it was noticed that the batch number of the rolled
bandages was originally seen to have been printed as 102 with
manufacturing date 07/2014 and expiry date 06/2017. However,
this has been scored out and the number 014 written alongside in
hand. CW-6 admitted as much. No counter-signature appeared
against such overwriting. The possibility of the overwriting having
been done in order that the batch number matched the one in the
Complaint could not be ruled out. Hence, the acquittal of the
Respondent No.2.
7. Having given due consideration to the submissions
before us and to the findings of the Learned Trial Court, it emanates
without a doubt that there has been procedural lapses on the part of
the Prosecuting Agency. Pausing here, we record that the Petitioner
did not press the point pertaining to „Sanction‟ which was initially
raised during the arguments advanced by Learned Deputy Solicitor
General. That having been said, we are aware that the overarching
principles in the Indian legal system is that procedural rules serve to
facilitate justice rather than obstruct it. The Supreme Court has
held that procedural laws should not dominate substantive rights or
the pursuit of justice (See, HDFC Bank Limited and Others vs. Union of
Union of India vs. M/s. Mukul Enterprises and Another
India and Others ), however it is also settled law that procedural
breach should not prejudice the rights of the parties involved. Only
if there is no breach, the Courts are encouraged to overlook such
technicalities to achieve a just outcome. Law mandates that when a
thing is required to be done in a particular manner, the said process
has to be complied with unerringly and a via method or
circumvention of the procedure vitiates the case at the threshold.
8. On this facet, we may notice that in Babu Verghese and
Others vs. Bar Council of Kerala and Others2 the Supreme Court
observed that;
"31. It is the basic principle of law long settled
that if the manner of doing a particular act is
prescribed under any statute, the act must be done in
that manner or not at all. The origin of this rule is
traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D
426 : 45 LJCh 373] which was followed by Lord Roche
in Nazir Ahmad v. King Emperor [(1936) 63 IA 372 : AIR 1936
PC 253] who stated as under:
"[W]here a power is given to do a certain
thing in a certain way, the thing must be done in
that way or not at all."
32. This rule has since been approved by this
Court in Rao Shiv Bahadur Singh v. State of V.P. [AIR
1954 SC 322 : 1954 SCR 1098] and again in Deep
Chand v. State of Rajasthan [AIR 1961 SC 1527 : (1962) 1 SCR
662] . These cases were considered by a three-Judge
Bench of this Court in State of U.P. v. Singhara
Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57] and the rule laid
down in Nazir Ahmad case [(1936) 63 IA 372 : AIR 1936 PC 253]
was again upheld. This rule has since been applied to
the exercise of jurisdiction by courts and has also been
recognised as a salutary principle of administrative
law."
9. In light of the foregoing discussions, we are of the
considered opinion that lapses have occurred in the statutory
procedure which have been circumvented to the detriment of the
accused. The Petitioner has thereby failed to make out a prima facie
case or raise arguable points to allow leave to file the Appeal.
(2023) 5 SCC 627
(1999) 3 SCC 422
Union of India vs. M/s. Mukul Enterprises and Another
10. Accordingly, we are not inclined to allow the leave to
Appeal and the Petition stands dismissed and disposed of as also the
Appeal.
11. Pending applications, if any, also stand disposed of.
(Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
21-05-2025 21-05-2025
Approved for reporting : Yes
ds
