IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5589 OF 2016 BETWEEN:
SRI JASBIR SINGH ANAND S/O SRI JAGAT SINGH ANAND, AGED ABOUT 69 YEARS PROPRIETOR OF M/S ETHICARE LABORATORIES NO.15, INDUSTRIAL ESTATE, DIGIANA JAMMU - 180010 RESIDING AT :
NO 17A/B GANDHINAGAR JAMMU ... PETITIONER (BY SRI: H.N. MANJUNATH PRASAD, ADVOCATE) AND STATE OF KARNATAKA REPRESENTED BY THE DRUG INSPECTOR, MANDYA CIRCLE, MANDYA - 571401 ... 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 ORDER DATED 30.04.2015 IN C.C.NO.540/2015 PASSED BY THE ADDL.
C.J. (JR. DN.) AND J.M.F.C., MANDYA IN TAKING COGNIZANCE OF THE OFFENCE AND QUASH ALL FURTHER PROCEEDINGS THERETO.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 28.01.2019 AND COMING ON FOR PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J., MADE THE FOLLOWING:-
O R D E R Petitioner has sought to quash the order dated 30.4.2015 in C.C.No.540/2015, whereby the learned Magistrate has issued summons to the petitioner.
2. The outline facts of the case are as follows:
The respondent-Drug Inspector, Mandya Circle, filed a complaint against the petitioner herein under Section 200 of Cr.P.C. seeking action for the offence under Section 18(a)(i) punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940.
In the complaint it is alleged that the petitioner is the Proprietor of manufacturing unit run under the name and style of M/s.Ethicare Laboratories, No.15, Industrial Estate, Digiana, Jammu, engaged in manufacture and sale of drugs. The petitioner is responsible for day to day conduct of the business of the said firm. The Deputy Director, Animal Husbandry and Veterinary Services, Mandya gave a complaint addressed to the Drugs Inspector stating that after administration of drug Ciprofloxacin Injection 30 ml, Batch No.: EL-110109 & EL-110110, manufactured by M/s.Ethicare Laboratories, they observed paralysis/paraplegia in animals. On 14.2.2012, Smt.Chandrakala Shilpa, the then Drugs Inspector, Mandya Circle, Mandya drew two legal samples of CEFLOX-40 (“Ciprofloxacin Injection”) of different B.No.: EL-110109 & EL-110110, both manufactured by M/s.Ethicare Laboratories for test or analysis under Form No.17 & 17-A dated 14.2.2012 from the premises of Deputy Director, Animal Husbandry & Veterinary Services, Mandya. One sample portion of each batch was sent to the Chief Scientific Officer, Drugs Testing Laboratory, Bengaluru for test or analysis under Form-18 dated 14.2.2012. On 2.4.2012, office received test report in Form-13 dated 30.3.2012 along with the covering letter from the Government Analyst, Karnataka, in which Ceflox-40 (Ciprofloxacin Injection) B.No.: EL-110109, manufactured by M/s.Ethicare Laboratories has been declared as “not of Standard Quality” with respect to “Description & Particulate Contamination”.
On 3.4.2012, petitioner was served with a notice under Section 18-A of Drugs & Cosmetics Act, 1940 along with one original test report. After investigation, on 27.4.2012, an investigation report was submitted to the Drugs Controller. On 14.6.2013, a reply notice was issued by the petitioner wherein they confirmed the manufacture and supply of subject drugs vide invoice dated 18.3.2011. On 29.1.2014, Drugs Controller for the State of Karnataka, directed to hand over Form-13 and a sealed sample portion to Assistant Drugs Controller/Drugs Inspector of Chitradurga Circle to investigate the matter at the manufacturer level. An investigation report was submitted on 6.11.2014 and permission for prosecution against the petitioner for violation of Section 18(a)(i) of Drugs Cosmetics Act, 1940 was obtained and accordingly, a complaint was lodged against the petitioner alleging commission of the alleged offence.
3. Heard learned counsel for the petitioner and learned SPP-II appearing for the respondent.
4. Learned counsel for the petitioner would contend that the proceedings initiated against the petitioner is contrary to Section 18 of the Drugs and Cosmetics Act, 1940. In order to attract Section 18 of the Act, it is imperative that the particular drug has been prohibited from manufacture and sale under a Government Notification. In the absence of the same, Section 18 cannot be invoked. It is further contended that in response to the letter addressed by the Drugs Controller, State of Karnataka, the Drugs Controller, State of Jammu and Kashmir has already withdrawn the permission accorded to the petitioner to manufacture the subject drug vide letter dated 7.2.2013 and administrative action has been initiated against the petitioner, hence launching of criminal prosecution is not warranted in the facts and circumstances of the case. The subject drug falls under category C, Clause 9 of the Drugs & Cosmetics (Amendment) Act, 2008, which clearly indicates that the infraction alleged is only a minor defect and therefore, criminal prosecution of the petitioner for the alleged infraction is uncalled for. Further, he argued that out of 27 batches of the products supplied, only 3 batches have been complained for particulate matter, that too after one year of its supply and therefore, contamination if any, detected could be attributable to improper storage and not to the manufacturer. The Drugs Controller while drawing the sample has not followed the guidelines issued by the department. Without taking into consideration any of these aspects, the learned Magistrate has taken cognizance of the alleged offence without application of mind. Thus, petitioner has sought to quash the proceedings initiated against him.
5. Learned SPP-II appearing for the respondent argued in support of the impugned action contending that the Analyst report prima facie confirms that the subject drugs were not of standard quality. The petitioner does not dispute the manufacture and supply of the said drugs. The material produced before the Court prima facie disclose the commission of offence and thus, seeks to dismiss the petition.
6. I have given my anxious thought to the submissions made by the learned counsels appearing for the respective parties and have carefully scrutinized the material on record.
7. Even though the petitioner has urged large number of contentions on merits, on going through the records of the proceedings, it is noticed that the learned Magistrate has issued summons to the petitioner without even taking cognizance of the alleged offence. The order sheet in C.C.No.540/2015 reveals that the complaint was filed before the Court on 18.3.2015 and the same was put up for orders on 30.4.2015. The order sheet dated 30.4.2015 reads as follows: “Issue summons to accused returnable by 28/5”. There is nothing in the entire order sheet to indicate that the learned Magistrate has taken cognizance of the offence alleged in the complaint before issuing summons. That apart, the order dated 30.4.2015 does not disclose the offence in respect of which summons have been issued to the petitioner. Under the said circumstance, solely on this ground, the summons issued to the petitioner is liable to be set aside.
8. It is trite that when a complaint is made to the magistrate under Section 200 of Cr.P.C. magistrate is empowered to proceed in the matter only after taking cognizance of the offence and that too after examining upon oath the complainant and the witnesses present if any. No doubt, in the instant case, the complaint having been submitted by a public servant acting or purporting to act in the discharge of official duty, the magistrate was not required to examine the complainant before issuing summons. Nonetheless, the learned Magistrate could not have assumed jurisdiction to proceed against the accused without taking cognizance of the offence alleged in the complaint. This jurisdictional error goes to the root of the matter vitiating the proceedings initiated against the petitioner. Magistrate having issued summons to the petitioner without taking cognizance of the alleged offence, therefore, cannot be sustained.
9. Another defect which stares on the face of the record is that the petitioner is shown to be a resident of Jammu. In the cause title, the address of petitioner and the manufacturing unit run by him is stated to be located in Jammu. Under the said circumstance, without conducting an enquiry as contemplated under Section 202 of Cr.P.C., the learned Magistrate could not have issued summons to the petitioner.
10. Section 202(1) of Cr.P.C. provides that where the accused is residing at a place beyond the area in which the Magistrate to whom a complaint is made in writing, the Magistrate is duty bound to hold an enquiry as contemplated under Section 202(2) of Cr.P.C. It is now well settled in catena of decisions rendered by the Apex Court as well as the decisions of the various High Courts that the enquiry contemplated under Section 202(1) of Cr.P.C. is mandatory. There is no indication in the order dated 30.4.2015 that an enquiry as contemplated under Section 202 of Cr.P.C. has been held. Since the learned Magistrate has failed to comply with the mandatory requirements under Section 202 of Cr.P.C, inevitably, the impugned order is liable to be quashed. As a result, without entering into any further discussions on the merits of the contentions urged in the petition, the impugned order dated 30.4.2015 in C.C.No.540/2015 issuing summons to the petitioner is hereby quashed.
11. Accordingly, petition is allowed. The matter is remitted to the learned Magistrate to proceed with the matter from the stage of receiving the complaint, in the light of the observations made in this order.
bkp Sd/- JUDGE