Court No. - 48
Case :- APPLICATION U/S 482 No. - 7609 of 2019 Applicant :- Rajeev Kharbanda Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Devendra Kumar Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Present application has been filed with the prayer to quash the entire proceeding of complaint case no. 1299 of 2011 under Sections 18/27 Drugs and Cosmetics Act, P.S. Kotwali pending before Chief Judicial Magistrate, Etawah and further to stay the further proceeding of the said case.
Heard learned counsel for the applicant and the learned AGA.
It appears that applicant had earlier approached this Court through application u/s 482 no. 29847 of 2014 and this Court on 5.8.2014 passed the following order:
"This Criminal Misc. Application under Section 482 Cr.P.C. has been filed with the prayer to quash the Criminal Complaint Case No.1299 of 2011 under section 18/27 of the Drugs and Cosmetics Act, 1940, PS. Kotwali, District Etawah and further prayer is to stay the proceeding of aforesaid case.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
Learned counsel for the applicant submitted that neither the drug was found spurious nor adulterated as per prosecution case. Only as per averment it was mis-branded. The complaint is not maintainable against the applicant under section 18/27 Drugs and Cosmetics Act, 1940. However, the applicant is facing trial. Subsequently since he failed to appear before the court concerned, hence warrant has been issued.
Learned AGA opposed aforesaid prayer.
Considered the submissions of counsel for the parties. If contention is correct and there is no reliable material to show that there was altercation by the applicant then it requires to be considered by the court where proceeding is pending. The disputed question of facts will be examined by the court concerned at the appropriate stage on the basis of evidence adduced by the parties, hence at this initial stage no interference is required.
However, if objection/discharge application is filed through counsel on behalf of the applicant within thirty days, it is expected that the court concerned will consider and decide the same expeditiously on merit by a speaking and reasoned order, at appropriate stage, in accordance with law.
Till disposal of the application, no coercive action shall be taken against the applicant.
If objection/discharge application is rejected and the applicant appears before the courts below within thirty days and applies for bail, it is expected that the same will be considered and disposed off expeditiously, in view of the principles laid down by Full Bench of this Court in case of Amarawati and another Vs. State of U.P., reported in 2004(57) ALR-390 and by the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. reported in 2009 (4) SCC 437.
With these observations, the present application under Section 482 Cr.P.C. is hereby finally disposed off."
Learned counsel for the applicant submits that discharge application moved by the applicant is still pending. Court below has no jurisdiction. Proceeding of aforesaid complaint case is nothing but an abuse of process of law.
On the other hand, learned AGA opposing the prayer submitted that since discharge application moved by the applicant is pending before the Court below, present application cannot be entertained. If Court below has no jurisdiction, appropriate order would be passed on the discharge application.
Having regard to the facts and circumstances of the case and having considered the submissions made by the learned counsel for the parties and keeping in view the fact that discharge application moved by the applicant in compliance of the order passed by this Court dated 5.8.2014 is still pending, present application cannot be entertained. The application is liable to be dismissed and the same is accordingly dismissed.
Order Date :- 28.2.2019 safi