IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO. 7190/2017 BETWEEN 1. V. R. KELKAR, GENERAL MANAGER, PHARMA OPERATIONS OF A-1, R/O FLAT NO.208,BLOCK NO.25, BPCL STAFF COLONY,AZIZ BAUGH CHEMBUR,MUMBAI-400 074 (AS STATED IN THE COMPLAINT) S/O RAMACHANDRA BALAKRISHNA KELKER, 59 YEARS,FLAT NO.106,BLOCK-18 BPCL STAFF COLONY, AZIZ BAUGH CHEMBUR, MUMBAI-400 074 2. V. P. PRABHU, SR.MANAGER, PRODUCTION & TECHNICAL SERVICES OF A-1, R/O 101,DURGA APARTMENT, NEAR SACHIN INDL. ESTATE, KOLBED ROAD, THANE (W) 400 601 (AS STATED IN THE COMPLAINT) S/O PANDURANG VAIKUNTH PRABHU 63 YEARS, 303, CENTRE COURT, BEHIND SHARANAM HOTEL, TEEN NATH NAKA, THANE-400 604 3. P N VYAS, MANAGER-QUALITY ASSURANCE,OF A-1, PRADHAN APARTMENT, GOREGAON,MULUND LINK ROAD, MULUND(W)MUMBAI-400 080 (AS STATED IN THE COMPLAINT S/O NARHARISHANKAR J VYAS, 23/601,VIJAY PARK, KASAR VADAVALI, GHOBUNDER ROAD, THANE (WEST) 400 615 ... PETITIONERS (BY SRI. S. G. BHAGAVAN, ADV.) AND THE STATE AT THE INSTANCE OF SRI. D. V. SREEDHARA, DRUGS INSPECTOR, KOLAR DISTRICT,KOLAR ... RESPONDENT (BY SRI. S. RACHAIAH, HCGP) THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.436/2016 IN THE COURT OF CIVIL JUDGE AND J.M.F.C., GUDIBANDE, IN SO FAR AS THEY ARE CONCERNED.
THIS CRL.P COMING ON FOR ADMISSION A/W IA NO.1/2017 THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioners and the learned HCGP for the Respondent-State Perused the records.
2. The petitioner has called in question the order dated 05.11.2016 passed by the Civil Judge & JMFC, Gudibande, in issuing process against the petitioners and other accused persons, particularly the petitioners who are arraigned as Accused Nos.3, 4 & 10 in C.C. Nos.436/2016.
3. Sri. S.G. Bhagavan, learned counsel for the petitioners, points out that the Drug Inspector, Kolar District, has filed a private complaint in C.C. No.82/1997 on the file of the JMFC, Chikballapur on 24.03.1997. The learned Magistrate has received the said complaint and ordered to put up. Thereafter, it appears the learned Magistrate has taken cognizance and issued process against the accused. Subsequently, it appears the said case has been transferred to the Civil Judge and JMFC, Gudibande and numbered as CC No.29.1998.
4. Earlier, the petitioners and other accused persons, who were aggrieved by issuance of summons and taking cognizance of the offences in C.C. No.29/1998, had approached this court for quashing of the said proceedings in Criminal Petition No.2358/1999 connected with Crl.P. Nos.3646/2001 and 4160/2001. This court by a detailed order, has directed the learned Magistrate to comply with Section 202 of Cr.PC. and pass appropriate orders in accordance with law. This court was of the opinion that the complainant has invoked Section 27(a) of the Drugs and Cosmetics Act, which is punishable with a term of punishment not less than five years and which may extend to imprisonment for life, and therefore, such offences are triable by the Court of Sessions, as such Magistrate has to follow the procedure as provided under Section 202(2) Cr.P.C. and also the proviso there under. Even after remission of the said matter with a direction as noted above, it appears the learned Magistrate has not followed any such procedure. In another petition, these petitioners and others have also called in question the order in C.C. No.29/1998, wherein the learned Magistrate has passed an order without looking into the materials on record and also issued summons. This court in Crl.P. No.1175/2007 vide judgment dated 05.01.2009, has directed the learned Magistrate to look into Section 34 of the Drugs and Cosmetics Act before directing issuance of process to the petitioners and others. In spite of such directions of this court in the said two petitions, it appears on 05.11.2016, an order was passed by the learned Magistrate without even adhering to the directions issued by this court. The order dated 05.11.2016 reads as under:
“The Drug Inspector, Kolar, has submitted this complaint against A1 to A24 for the offence punishable u/s. 27(A)(D) of Drugs and Cosmetics Act. Perused the complaint and documents at this stage. Prosecution has produced sufficient materials to proceed against accused for the alleged offences. Hence cognizance of the above case in Criminal Reg. No.3.
Date of Cause of Action: 17.12.2015.”
5. This order of the learned Magistrate does not disclose that, whether the said order is passed after complying Section 202(2) Cr.PC., and the proviso appended to the said provision, nor it disclose that the magistrate has applied his mind to Section 34 of the Drugs and Cosmetics Act, which is analogues to Section 141 of N.I. Act. Which provision says, whenever the complaint is lodged against a Company making all the Directors of the Company as accused persons, in such an eventuality, the court has to examine as to what are the roles of each and every Director or the Managing Director or other persons, who were arraigned as accused persons in the said case. In case, if the court comes to the conclusion that those persons are also involved in commission of the offences and they are responsible for the day-to-day affairs of the Company, then only the court has to pass appropriate orders in accordance with law, for either to take cognizance against them and issue process or to pass appropriate orders under Section 203 of Cr.PC.. These procedures have not been followed by the learned Magistrate in spite of directions as noticed above.
6. In the above circumstances, the order dated 05.11.2016 does not stand to the scrutiny of this court and the same is liable to be quashed.
7. It is made clear that the learned Magistrate has to look into the entire materials on record and he should not blindly pass any order without following the procedure contemplated under the Statute as directed by this court in the above said two petitions. The learned Magistrate has to take note of the fact, particularly that, such an attitude of the judicial Magistrates will not be tolerated any more, if the same is repeated by means of passing a casual orders like the order 05.11.2016 in this case. Therefore, with a word of ‘Caution’ this court is again remitting the matter to the trial Court with a direction to the learned Magistrate to look into the entire materials on record and also the directions issued by this court in the above two petitions and to pass appropriate orders, particularly taking note of the contents of Section 34 of the Drugs and Cosmetics Act, by giving a finding about the role of these petitioners and other Directors of the Company, as to whether they are liable for prosecution. If any derogation of the Direction of this Court, it will be viewed very seriously.
8. With the above observation and direction, I am of the opinion that the matter has to be remitted back after setting aside the order impugned in this petition. Accordingly, I pass the following:
ORDER The petition is allowed. Consequently, the order dated 05.11.2016 passed by the Civil Judge and JMFC, Gudibande, in CC No.436/2016 is hereby set aside. The matter stands remitted to the trial Court to follow the directions issued by this court in the above said two petitions as noted in the body of this order and also as per the directions issued in this particular order, and to pass appropriate orders in accordance with law.
In view of disposal of this case, the application-IA No.1/2017 filed for stay, does not survive for consideration. Accordingly, the said application stands disposed of.
Sd/-
JUDGE KGR*