IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.4487 OF 2013 BETWEEN:
1. M/s. MMG Health Care, Trilokpur Road, Sirmour, Himachala Pradesh, Represented by its Partner, Rajeev Goel.
2. Subhash Miglani, S/o. Late Rama Saran Dass, R/o Trilokpur Road, Kalamba, Tehnahan, District Sirmour, Himachala Pradesh, Partner and responsible person for day to day conduct of the Business of the manufacturing Firm M/s MMG Health Care, Trilokpur Road, Sirmour, Himachala Pradesh.
3. Sri. Sanjay Kumar, S/o. Banasari Dass, R/o Trilokpur Road, Kalamba, Tehnahan, District Sirmour, Himachala Pradesh, Partner and responsible person for day to day conduct of the Business of the manufacturing Firm M/s. MMG Health Care, Trilokpur Road, Sirmour, Himachala Pradesh.
4. Sri. Rajeev Goel, S/o. Banasari Dass, R/o. Trilokpur Road, Kalamba, Tehnahan, District Sirmour, Himachala Pradesh, Partner and responsible person for day to day conduct of the Business of the manufacturing Firm M/s. MMG Health Care, Trilokpur Road, Sirmour, Himachala Pradesh. …Petitioners (By Sri. G. Desu Reddy, Advocate) AND:
State at the instance of Drugs Inspector, Chikkaballapura Circle, Chikkaballapura. ...Respondent (By Sri. I.S. Pramod Chandra, SPP-II) This Criminal Petition is filed under Section 482 of Cr.P.C praying to quash the entire proceedings pending on the file of the Prl. Civil Judge & JMFC, Chikkaballapura, in C.C.No.296/2012.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R The petitioners have invoked jurisdiction under Section 482 of Cr.P.C. to quash the proceedings in C.C.No.296/2012 pending on the file of the Prl. Civil Judge & JMFC, Chickballapur.
2. The facts leading to prosecution of the petitioners are as follows:
The Drugs Inspector, Chickballapur Circle, filed a complaint under Section 200 of Cr.P.C. alleging that during the course of inspection by the then Assistant Drugs Controller, Chickballapur, samples of Powertax- 250, Cefotaxine for Injection IP B.No.GM-134, D/M:09/2008, D/E:08/2010, Mfd. by M/s. MMG Health Care, Trilokpur Road, Sirmour Himachal Pradesh- petitioner No.1 were collected. One sealed portion of the sample was sent to the Government Analyst, Drugs Testing Laboratory, Karnataka. On 16.07.2009, the Assistant Drugs Controller received test report to the effect that ‘subject drugs were not of standard quality’. Hence, he issued notices to the Pharmacist of M/s. CSI Hospital Pharma, under Sections 18A and 18B of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘Act’, for short) and Rules there under. Ultimately, complaint came to be lodged against the petitioners for offering for sale the aforesaid drugs which were not of standard quality.
3. Learned counsel for the petitioners has raised threefold contentions. Firstly, he contends that the test report relied on by the complainant indicates that complete analysis of the sample could not be carried out due to insufficient quantity of the sample, which means that the sample sent to the laboratory was not subjected to complete analysis and therefore, on the basis of the said inconclusive report, prosecution should not have been launched against the petitioners. Secondly, in para 24 of the complaint it is stated that accused No.5 namely Sri.Sunil Kumar Ray, nominee of accused No.1-firm was responsible for the day to day affairs of the accused No.1-firm and hence prosecution of the petitioners is not tenable by virtue of Section 34 of the Act. Thirdly, the prosecution initiated against the petitioners is barred by limitation. As per the averments made in the complaint the samples were drawn on 02.07.2009 and the test report dated 15.07.2009 was received by the respondent on 16.07.2009, whereas the complaint is filed on 14.08.2012. The offences alleged against the petitioners are punishable with maximum imprisonment upto two years. Therefore, by virtue of Section 468(2) of Cr.P.C., the complaint ought to have been filed within three years from the date of the receipt of the test report.
4. In support of his arguments, the learned counsel has placed reliance on the following authorities:
(i) M/s. Wallace Pharmaceuticals Pvt. Ltd. & two others V/s State in Criminal Petition No.1649/2010 dated 04.08.2010.
(ii) M/s. Zee Laboratories & another V/s Union of India in Criminal Petition No.8431/2015 dated 21.08.2018 5. Refuting the aforesaid contentions, the learned SPP-II has argued in support of the impugned action and contends that the prosecution against the petitioners are within time. The petitioners were in- charge of the accused No.1-firm and were responsible for the day to day affairs of the accused No.1-firm and therefore, prosecution of the petitioners is in accordance with Section 34 of the Act. In so far as the contentions urged by the petitioners touching limitation is concerned, the learned SPP-II has placed reliance on the decision of the Hon’ble Supreme Court in State of Rajasthan V/s Sanjay Kumar and others reported in (1998) 5 SCC 82 and would submit that the complaint has been filed within the limitation and therefore, there are no grounds to quash the proceedings.
6. Considered the submissions and perused the records.
7. Regarding the first contention raised by the learned counsel for the petitioners that the note made by the Government Analyst in the test report dated 15.07.2009 is concerned, no doubt in the said note it is stated that ‘complete analysis of the sample could not be carried out due to insufficient quantity of the sample’, but, that does not mean that the result of the analysis is inconclusive as contended by the learned counsel. Reading of the said report manifests that a clear and definite opinion is rendered by the analyst to the effect that the sample examined by him was not of standard quality, with respect to the ASSAY. Therefore, the argument of the learned counsel for the petitioners that the test report is inconclusive for want of complete analysis, cannot be accepted. If for any reason, the report submitted by the analyst is defective, the same can be challenged only during trial. As the test report prima facie indicates that the sample drawn from the M/s. CSI Hospital Pharma was of substandard quality, the contention raised by the petitioner in this regard is liable to be rejected.
8. In so far as second contention is concerned, Section 34 of the Act deals with the procedure for prosecution of Companies. The section reads as under:
“34. Offences by companies.— (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.—For the purposes of this section— (a) “company” means a body corporate, and includes a firm or other association of individuals; and (b) “director” in relation to a firm means a partner in the firm.”
9. In paragraphs 20 – 24 of the complaint respondent has specifically averred that accused Nos.2, 3 and 4 being the partners of accused No.1-firm were responsible for day to day affairs of the firm and were responsible for manufacturing of drug for sale and selling not of substandard quality drug Powertax-250 Cefotaxine for Injection IP B.No.GM-134, D/M: 09/2008, D/E: 08/2010. In view of this specific averment, I hold that prosecution of the petitioners is in accordance with Section 34 of the Act. Therefore, this contention is also rejected.
10. Coming to the third contention, it is an undisputed fact that the test report was received by respondent on 16.07.2009 and the complaint was filed on 14.08.2012. The offences alleged against the petitioners are punishable with maximum imprisonment upto two years. In the decision relied upon by the learned SPP-II, in paragraph 8 it has been held that, it is only when the report of the Government Analyst was received the offence is committed. In view of this ratio, the date of the commission of the offence is the date of receipt of the test report. Nonetheless, the averments made in the complaint indicate that on receipt of the complaint, respondent issued notice to the pharmacist of M/s. CSI Hospital Pharma and a requisition was made seeking sanction as required under Section 33M of the Act. Section 470 of Cr.P.C provides for exclusion of time taken for completing with the requirements of sanction as required under Section 470(3) of Cr.P.C., which reads as under:
“470(3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.”
11. Undisputedly, sanction was granted only on 06.07.2012. The time taken by the respondent to take sanction from the competent authority to lodge complaint is required to be excluded, for the purpose of limitation. As a result, the contention urged in this regard is also liable to be rejected.
Consequently, petition is dismissed.
Sd/- JUDGE SV