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.6213 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-180 010 RESIDING AT:
NO.17A/B GANDHINAGAR JAMMU ... PETITIONER (BY SRI: H.N.MANJUNATH PRASAD, ADVOCATE) AND STATE OF KARNATAKA REPRESENTED BY THE ASSISTANT DRUG CONTROLLER, OFFICE OF THE ASSISTANT DRUG CONTROLLER, NO.3569, 1ST FLOOR, 1ST CROSS J.C.R. EXTENSION CHITRADURGA-577 501 ... RESPONDENT (BY SRI: I.S.PRAMOD CHANDRA, SPP-II) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1762/2015 ON THE FILE OF I ADDL. CIVIL JUDGE AND JMFC COURT, CHITRADURGA VIDE ANNEXURE-A THE OFFENCE P/U/S 200 OF CRPC P/W 18(A), 27(D) OF THE DRUGS AND CONSMETICS ACT.
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 entire proceedings in C.C.No.1762/2015 on the file of II Additional Civil Judge and JMFC Court, Chitradurga for the offences punishable under Sections 18(A), 27(d) of the Drugs and Cosmetics Act, 1940.
2. The outline facts of the case are as follows:
The respondent-Assistant Drugs Controller, Chitradurga Circle, filed a complaint against the petitioner herein under Section 200 of Cr.P.C. seeking action for the offences under Section 18(a)(i) punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940 and Rules 1945.
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 accused No.1-firm. The Assistant Drugs Controller, Chitradurga Circle, Chitradurga drew “CEFLOX-40” Inj (Ciprofloxacin Injection) B.No.EL-111004 manufactured by accused No.1-firm for test and analysis along with other 6 samples from the premises of Deputy Director, Animal Husbandry and Veterinary Services, Chitradurga under Form-17 and 17A dated 13.3.2012. The sample was sent to the Government Analyst, Drugs Testing Laboratory, Bengaluru for test and analysis under Form-18 dated 13.3.2012. On 1.10.2012, the then Assistant Drugs Controller, Chitradurga Circle, Chitradurga received test report in Form-13 dated 29.9.2012 in which the Government Analyst, Karnataka declared the sample as “Not of Standard Quality”.
On 1.10.2012, the then Assistant Drugs Controller, Chitradurga issued notice under Section 18-A of Drugs & Cosmetics Act, 1940 along with one original test report of sample to the Deputy Director, Animal Husbandry and Veterinary Services, Chitradurga to disclose the source of acquisition of sample. On 4.12.2012 Smt.Geetha.M.S., Drugs Inspector, Chitradurga Circle received reply from M/s.Good Shepherd & Co., Bengaluru disclosing that the sample was received from accused No.1-firm vide invoice No.420 dated 13.12.2011. On 29.1.2014, Drugs Controller for the State of Karnataka permitted Smt.Geetha.M.S., Drugs Inspector and Sri.Sujith.T.P., Assistant Drugs Controller, Chitradurga Circle, Chitradurga to investigate the matter at the manufacturer level. An investigation report was submitted on 7.6.2014 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 are 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 discloses 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.1762/2015 reveals that the complaint was filed before the Court on 04.8.2015 and the same was put up for orders on 01.9.2015. The order sheet dated 01.9.2015 reads as follows: “Complainant present. Since complainant is Government servant acting in the discharge of his official duty recording of S/Statement is exempted. Issue summons to accused by 09/11/2015”. 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 01.9.2015 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.
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 01.9.2015 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 proceedings in C.C.No.1762/2015 on the file of II Additional Civil Judge and JMFC, Chitradurga 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