Judgment :- Reckitt and Benckiser (India) Limited, manufacturer among others of disinfectant "Lizol" (Pineol Shakti Disinfectant) Phenolic type cleaner, is before this Court for a writ of Mandamus declaring the proceedings in calendar case No.449 of 2004 on the file of Court of the XI Metropolitan Magistrate, City Civil Courts, Hyderabad, as illegal, unwarranted and unjustified. In effect, the writ petition is for quashing criminal complaint in exercise of this Court's power under Article 226 of Constitution of India. The following is the admitted factual background. Petitioner, an incorporated company, has its registered office at Okhla Industrial Area, Phase-III, New Delhi. Its business is to manufacture and sale of pharmaceutical and other products including disinfectant cleaner 'lizol'. Petitioner obtained licence under Drugs and Cosmetics Act, 1940 (the Act, for brevity) and its operations are regulated inter alia by provisions of the Act as well as Drugs and Cosmetics Rules, 1945 (the Rules, for brevity). On 02.12.1999, Drug Inspector, Hyderabad, appointed under Section 21 of the Act inspected petitioner's premises at Secunderabad and collected five samples of 'lizol' bottles of 500 ml each with distinct batch number and other details, for the purpose of test analysis. He sealed the bottles of 'lizol' and sent one such sample to Government Analyst, Drug Control Administration, Hyderabad. After receiving certificate of test/analysis in Form-13 on 04.05.2000 from the Government Analyst to the effect that the sampled drug is not of standard quality for the reason that the same does not conform the assay for R.W.C. as the label claim. A letter, dated 05.05.2000 was addressed to petitioner. In response thereto, the Regional Manager of petitioner, by letter, dated 13.06.2000 contested the report of Government Analyst. On 16.08.2000, Drug Inspector deposited one sealed sampled portion of the drug in the Court of XI Metropolitan Magistrate for causing analysis at Central Drugs Laboratory (CDL), Kolkata. The same was sent by the Court to CDL on 26.08.2000. While awaiting analytical report from the CDL, the complainant addressed a letter on 31.05.2001 to petitioner with the analytical report and a sealed sample portion of the drug requesting to furnish information and attested documents under Section 18B of the Act. The documents were allegedly not furnished to the complainant and therefore, a complaint was filed in the criminal Court on 05.05.2002. The documents were allegedly not furnished to the complainant and therefore, a complaint was filed in the criminal Court on 05.05.2002. According to petitioner, criminal Court took allegedly cognizance of the offence on 23.08.2004 under Section 18(a)(i) read with Section 27(d) of the Act and issued process to petitioner. Learned counsel for petitioner raised two contentions. 'Lizol' disinfectant is a drug, which falls under Schedule 'K' of the Rules and therefore under Rule 123 of the Rules, 'lizol' is exempted from the provisions of Chapter IV of the Act and the Rules. Secondly, in view of Section 27(d) of the Act read with Section 468 of Code of Criminal Procedure, 1973 (Cr.P.C), the criminal case is barred by limitation. Per contra, learned Assistant Government Pleader submits that the exemption under Rule 123 read with Schedule 'K' of the Rules is only for the sale of drug 'lizol' and not for the manufacturing and therefore, Section 27(d) of the Act is attracted As per Section 27(d) of the Act, a person manufacturing for sale of distribution inter alia any drug in contravention of the provisions of Chapter IV shall be punishable with imprisonment for a term which shall not be less than one year but may extend to two years and with fine.. Nextly, he contends that as punishment under Section 27(d) of the Act is two years, the period of limitation under Section 468(2)(c) of Cr.P.C. would be three years and hence, complaint was filed within time and cognizance was also taken within time. The first question that arises for consideration is whether 'lizol' (phenolic type disinfectant) is an exempted drug under Rule 123 read with relevant entry in Schedule K to the Rules. Second question is whether filing of complaint/taking up cognizance by criminal Court is barred by limitation? These two questions must be considered - in usual course; by criminal Court which took cognizance of the case. These two questions are very relevant in any criminal trial with such background as summed up supra. The writ petition is one for quashing the calendar case pending before learned XI Metropolitan Magistrate. Therefore, it necessarily throws up question regarding the scope of writ petition to quash an FIR or a criminal case pending trial. These two questions are very relevant in any criminal trial with such background as summed up supra. The writ petition is one for quashing the calendar case pending before learned XI Metropolitan Magistrate. Therefore, it necessarily throws up question regarding the scope of writ petition to quash an FIR or a criminal case pending trial. The principles in this area are well settled, but a reiteration of extent of judicial review and power to quash an FIR/criminal case is necessary with emphasis on quashing of an pre-trial criminal case. It is the duty of the executive to investigate a crime through police to bring the offenders to book. It is a sovereign power. The Court ordinarily cannot interdict with such power nor approach the case with inquisitorial or investigative attitude. Nonetheless, in exercise of powers under Section 482 of Cr.P.C., High Court can quash an FIR only when the police investigation of a cognizable offence amounts to abuse of process of law or it leads to miscarriage of justice. In this area, the principles are well settled and tests have been laid down by apex Court and other Courts. If a look at the allegations in the FIR prima facie points to commission of an offence, the matter should await criminal trial. The Court cannot shift material or appreciate evidence at the stage of investigation while exercising powers under Section 482 of Cr.P.C. That substantive and procedural criminal law provides safeguards against arbitrary arrest, searches, seizure and criminal trials must guide the Court while enquiring a quash petition. Lastly, ordinarily having regard to the effective remedy under Section 482 of Cr.P.C., the extra remedy under Article 226 of Constitution of India cannot be resorted to quash an FIR or a criminal trial. The binding precedents in Emperor v Khwaja Nazir Ahmed AIR 1945 PC 18, R.P. Kapoor v State of Punjab AIR 1960 SC 866 , State of Haryana v Bhajan Lal AIR 1982 SC 604 and State of West Bengal v Swapan Kumar Guha AIR 1982 SC 949 contain the law. When can criminal proceedings be quashed? Principles which are applicable to FIR quash cases are equally applicable to cases of quash of criminal proceedings under Section 482 of Cr.P.C. That power under Article 226 of Constitution of India ordinarily cannot be exercised to quash criminal proceedings is well settled. When can criminal proceedings be quashed? Principles which are applicable to FIR quash cases are equally applicable to cases of quash of criminal proceedings under Section 482 of Cr.P.C. That power under Article 226 of Constitution of India ordinarily cannot be exercised to quash criminal proceedings is well settled. In State of Tamil Nadu v Thirukkural Perumal (1995) 2 SCC 449 , Supreme Court held that though the High Court has extraordinary or inherent power to reach out injustice, power of quashing FIR and criminal proceedings should be exercised sparingly by the Court. It is apt to quote the following. ..............The power of quashing an FIR and criminal proceeding should be exercised sparingly by the courts. Indeed, the High court has the extraordinary or inherent power to reach out injustice and quash the first information report and criminal proceedings, keeping in view the guidelines laid down by this court in various judgments (reference in this connection may be made with advantage to State of Haryana v Bhajan Lal (supra) but the same has to be done with circumspection. The normal process of the criminal trial cannot be cut short in a rather casual manner. The court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under Section 482 Criminal Procedure Code seeking the quashing of the FIR and the criminal proceedings. The learned Single Judge apparently fell into an error in evaluating the genuineness and reliability of the allegations made in the FIR on the basis of the evidence collected during the investigation. The order of the learned Single Judge cannot, therefore, be sustained. This appeal succeeds and is allowed. The impugned order of the High court is hereby set aside. In State of Himachal Pradesh v Pirthi Chand (1996) 2 SCC 37 = 1996 SCC (Crl.) 210, the Supreme Court considered the extent and scope of power of High Court under Article 226 of the Constitution as well as Section 482 Cr.P.C. to quash the FIR/charge sheet/complaint. The impugned order of the High court is hereby set aside. In State of Himachal Pradesh v Pirthi Chand (1996) 2 SCC 37 = 1996 SCC (Crl.) 210, the Supreme Court considered the extent and scope of power of High Court under Article 226 of the Constitution as well as Section 482 Cr.P.C. to quash the FIR/charge sheet/complaint. While holding that at the stage of investigation it is not the function of the Court to weigh the merits of the prosecution case and that if the record prima facie supports the commission of an offence, the power to quash FIR cannot be exercised. It was observed: It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR / charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation move to the machinery and to investigate into cognizable offence. After the Investigation is conducted and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence- the Court may embark upon the consideration there of and exercise the power. But only in exceptional cases, i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence- the Court may embark upon the consideration there of and exercise the power. (emphasis supplied) Yet again, in paragraph 13, it was laid down as under. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482, the prima facie consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court. When investigating officer spends considerable time to collect the evidence and places the charge-sheet before the court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power........... (emphasis supplied) In Mahavir Prashad Gupta v State of National Capital Territory of Delhi (2000) 8 SCC 115 , the Supreme Court held that when there are sufficient provisions in Cr.P.C., there is no necessity to invoke jurisdiction under Article 226 of the Constitution. The relevant observations are as under. To be remembered that in the Criminal Procedure Code there are sufficient provisions which enable a party to move the High Court if there is abuse of the process of law. The Petitioners could have utilised those provisions. Also anticipatory bail had been refused to the Petitioners. The Order refusing grant of anticipatory bail was accepted by the Petitioners as they filed no Appeal or Revision. There was thus no justification for invoking Article 226 of the Constitution of India.................. The law on the subject is very clear. In the case of State of Bihar v. Murad Ali Khan {(1988) 4 SCC 655 : 1989 SCC (Cri) 27} it has been held that jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised sparingly and with circumspection. The law on the subject is very clear. In the case of State of Bihar v. Murad Ali Khan {(1988) 4 SCC 655 : 1989 SCC (Cri) 27} it has been held that jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised sparingly and with circumspection. It has been held that at an initial stage a court should not embark upon an inquiry as to whether the allegations in the complaint are likely to be established by evidence or not. Again in the case of State of Haryana v. Bhajan Lal {(1992) Supp (1) SCC 335 : 1992 SCC (Cri) 426} this Court has held that the power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that the court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. (emphasis supplied) In Zandu Pharmaceutical Works Ltd., v Mohd.Sharaful Haque 2004 AIR SCW 6185 = (2005) 1 SCC 122 , on which reliance is placed by petitioner, the case arose out of proceedings instituted by the appellant therein under Section 482 of Cr.P.C. Patna High Court rejected quash proceedings. Allowing the appeal, Supreme Court observed thus: All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action, which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. In Pepsi Foods Limited v Special Judicial Magistrate (1998) 5 SCC 749 , which is also relied on in support of the petitioner, the accused instituted a writ petition under Articles 226 and 227 of Constitution of India to quash a complaint under Section 7 read with Section 16 of Prevention of Food Adulteration Act, 1954 (PFA Act, for brevity), a writ of Prohibition to prevent Special Judicial Magistrate to proceed with the case and a writ of Certiorari to quash criminal case and a writ of Mandamus to the Presiding Officer not to proceed with the case and other reliefs were sought. The writ petition was dismissed by High Court. A plea was raised before apex Court as to whether the High Court would be justified in refusing to grant relief to the accused in the facts and circumstances of the case under Articles 226 and 227 of Constitution of India. After making a reference to decisions in Waryam Singh v Amarnath AIR 1954 SC 215 and Nagendra Nath Bora v Commissioner of Hills Division AIR 1958 SC 398 , Supreme Court laid down as under. After making a reference to decisions in Waryam Singh v Amarnath AIR 1954 SC 215 and Nagendra Nath Bora v Commissioner of Hills Division AIR 1958 SC 398 , Supreme Court laid down as under. In State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335, this Court examined the extraordinary power under Art. 226 of the Constitution and also the inherent powers under S. 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Art. 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Arts. 226 and 227 of the Constitution and under S. 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Art. 227 or S. 482 of the Code it may not always be necessary to invoke the provisions of Art. 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Arts. 226 and 227 may be referred to. When the exercise of powers could be under Art. 227 or S. 482 of the Code it may not always be necessary to invoke the provisions of Art. 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Arts. 226 and 227 may be referred to. In Pepsi Foods Limited (supra), Supreme Court also observed that, "nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case ... Court finds that the appellants could not invoke jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227 or Section 482 of Code". Therefore, this decision is not an authority for proposition that writ petition would lie for quashing a criminal case which is pending trial. It is a case where a complaint was sought to be quashed and in facts and circumstances of said case, Supreme Court made the observations as extracted hereinabove. In view of the case law as above, it may be taken as well settled that having regard to the safeguards provided in Cr.P.C. including the power vested in the High Court to quash an FIR or criminal proceedings, ordinarily a writ petition under Article 226 of Constitution of India would not lie. In appropriate cases, however, there cannot be sustainable objection for the High Court treating a petition under Article 226 of Constitution of India as one under Article 227 and/or under Section 482 of Cr.P.C. Even while doing so, the law requires the Court not to interfere with investigation at the stage of FIR, or criminal proceedings during the trial especially when prima facie triable criminal case is made out. It is also axiomatic that while exercising power under Section 482 Cr.P.C. or Article 227, the High Court does not act as an appellate authority or inquisitorial/ investigatory authority. High Court cannot even give directions to the Police to initiate criminal action and/or investigate the case in particular manner (see Divine Retreat Centre v State of Kerala (2008) 3 SCC 542 ). As noticed first submission is about the effect of Rule 123 read with Schedule 'K'. High Court cannot even give directions to the Police to initiate criminal action and/or investigate the case in particular manner (see Divine Retreat Centre v State of Kerala (2008) 3 SCC 542 ). As noticed first submission is about the effect of Rule 123 read with Schedule 'K'. Before dealing with this aspect, it is necessary to notice the scheme of the Act in brief especially the provisions in Chapter IV of the Act, which contains an inclusive definition of 'drug'. Not only the medicines consumed by human beings or animals internally and all medicines used externally as well as substances used in the diagnostic tests or as preventive measures are included in the definition of 'drug'. There is no dispute that phenolic disinfectant proportions are within the definition of drug under Section 3(b) of the Act. Therefore (keeping Rule 123 of Schedule 'K' aside for a while), the petitioner, which manufactures Lizol phenolic proportion has to comply with in usual course, the provisions of Chapter IV. This Chapter containing Sections 16 to 33-A of the Act, deals with manufacture, sale and distribution of drugs and cosmetics. Sections 18 and 27 are substantive provisions whereas other provisions are in the nature of adjutant procedural prescriptions. As per Section 18, manufacturing, selling and stocking of any drug is prohibited unless a person obtains licence issued for specific purpose under Chapter IV. The drugs and cosmetics manufactured have to conform to quality and standards as prescribed under Section 16 to 17(c). Section 27 prescribes penalties for manufacture and sale of drugs in contravention of provisions of Chapter IV. Clause (d) thereof lays down that any person who manufactures for sale or distribution a drug (other than drug referred in clauses (a) to (c)) shall in contravention of the provisions of Chapter IV shall be punishable with imprisonment for a term which shall not be less than one year, which may extend to two years and fine. Be it noted, Drug Inspector filed a complaint against petitioner under Section 27(d) alleging that they contravened Section 18(a) (i) of the Act. Thus, the charge against petitioner is that they manufacture 'lizol' disinfectant which is not of standard quality. Be it also noted that complaint was filed after receiving the report of Government Analyst, Drug Control Administration in Form-13 bearing No.594/DCL/2000 stating that 'lizol' sample picked up from petitioner's premises was not of standard quality. Thus, the charge against petitioner is that they manufacture 'lizol' disinfectant which is not of standard quality. Be it also noted that complaint was filed after receiving the report of Government Analyst, Drug Control Administration in Form-13 bearing No.594/DCL/2000 stating that 'lizol' sample picked up from petitioner's premises was not of standard quality. Thus filing of complaint cannot be faulted. The criminal trial, therefore, must be allowed to go on. If it is allowed to go on, does it amount to abuse of process of Court or does it result in miscarriage of justice? Part XI of Rules contains only one rule which is Rule 123 of the Rules. As per this Rule, "the drugs specified in Schedule 'K' shall be exempted from the provisions of Chapter IV of the Act and the Rules made thereunder to the extent and subject to conditions specified in that Schedule". Schedule 'K' enumerates more than 34 clauses of drugs. To the extent relevant, for purpose of this case, involving disinfectant, relevant portion of table reads as under. SCHEDULE K (See Rule 123) Class of Drugs Extent and Conditions of Exemption 1 to 11 - omitted 12. Substances intended to be used for destruction of vermin or insects which cause disease in human beings or animals, viz. Insecticides and Disinfectants The provisions of Chapter IV of the Act and Rules thereunder, which require them to be covered by a sale licence subject to the condition that provision of condition (17) of Rule 65 of the Drugs and Cosmetics Rules, 1945 are complied with by the person stocking or selling such substances. 13 to 34 - omitted Disinfectant as a drug does not require sale licence subject to complying with condition (17) of Rule 65 of the Rules Condition (17) of Rule 65 prohibits sale or stocking of drug after the date of expiration of potency recorded on its container, label or wrapper, or in violation of any statement or direction recorded on such container, label or wrapper. As noticed supra, Section 18 of the Act requires a mandatory licence for carrying out various activities in relation to drugs. For the purpose of manufacture, distribution and storing, sale licence is required. As noticed supra, Section 18 of the Act requires a mandatory licence for carrying out various activities in relation to drugs. For the purpose of manufacture, distribution and storing, sale licence is required. When Rule 123 of the Rules exempts specified Schedule 'K' drugs from provisions of Chapter IV subject to condition specified in Schedule, it would not be possible to accept the plea of petitioner that the manufacture of disinfectant 'Lizol' is also exempted under Rule 123. A perusal of various other entries in Schedule 'K' would show that some of these drugs are exempted from obtaining sale licence and some of them are exempted from obtaining sale and distribution licence as well as manufacturing licence. Entry 12 which deals with insecticides and disinfectants is clear that these drugs are exempted only to the extent of obtaining a sale licence not for manufacturing. Therefore, submission of learned counsel for petitioner cannot be countenanced. In an unreported Judgment in B.Vijay Kumar v Drugs Inspector (Criminal Petition No.3400 of 2005), on which reliance is placed, it is not a case of manufacturer of disinfectant called up for contravention of the provisions of Act and the Rules. It is a case under Section 482 of Cr.P.C. when Drug Inspector surprised the premises of accused Nos.1 and 2 therein and asked for drug licence. On failure to do so, the stock was seized and a complaint was filed under Section 18(c) read with Section 27(b)(ii) of the Act and for contravention of Rule 2(ii) of condition in Form-20B read with Section 18(a)(iv) of the Act, punishable under Section 27(d) of the Act. This Court having regard to entry/item No.12 of Schedule 'K' quashed the proceedings in C.C.No.473 of 2003 observing as under. The certificate issued by the Drugs Licensing Authority, Daman, it is clear that Savlon Antiseptic Liquid is permitted to manufacture for sale to M/s.Vita Soaps & Specialities, 143, Panchal Udyog Nagar, Bhimpore, Nani Daman-396210 under manufacturing license No.DD/233 in Form 25 valid upto 31/12/2006 and marketed by Johnson & Johnson Limited, Mumbai-400036. It is further clear from the certificate that the produce is an antiseptic (disinfectant) as the contents of this formulation have definition of Drugs vide Notification No.X.11013/2/72, dated 09.07.1975. It is further clear from the certificate that the produce is an antiseptic (disinfectant) as the contents of this formulation have definition of Drugs vide Notification No.X.11013/2/72, dated 09.07.1975. Therefore, sufficient information has been laid before the Drug Inspector even prior to launching of prosecution to show that the product will not come within the meaning of 'drug' and fall within the exemption under item No.12 of Schedule K of the Act. Therefore, it is the duty of the Drug Inspector to specifically state whether this particular drug falls within the ambit of exemption under item No.12 of Schedule K of the Act or not. On that aspect, the complaint is silent. The allegations in the complaint and the documents filed along with the complainant, would prima facie go to show that the product 'savlon' is disinfectant liquid and falls within the exemption under item No.12 of Schedule K of the Act which do not require any licence for stocking and selling before the date of expiry. When once the accused, prima facie, even before filing of the complaint, pointed out that the drug in question falls under the exemption under item No.12 of Schedule K of the Act and no licence is required except complying with the condition No.17 of Rule 65f of the Rules which has been complied with by the petitioners, continuation of the proceedings against the petitioners is nothing but abuse of process of Court. The above decision cannot be applied where the accused is manufacturer of disinfectant. Whether complaint is barred by Limitation as per Section 468 of Cr.P.C? It is always a mixed question of fact. The complaint was filed under Section 18(a)(i) of the Act manufacturing and selling of substandard quality drug under Section 27(d) of the Act. The punishment provided under this provision is imprisonment for a term which shall not be less than one year which may extent to two years and with fine. Therefore, under Section 468 of Cr.P.C., the period of limitation shall be three years. The respondent admittedly filed complaint in respect of samples for which he received report on 04.05.2000. Prima facie this is within limitation, but the case cannot be given quietus with this. Section 468 of Cr.P.C. prescribes that, "no Court shall take cognizance of offence after expiry of period of limitation". The respondent admittedly filed complaint in respect of samples for which he received report on 04.05.2000. Prima facie this is within limitation, but the case cannot be given quietus with this. Section 468 of Cr.P.C. prescribes that, "no Court shall take cognizance of offence after expiry of period of limitation". Learned counsel for petitioner has placed before this Court the certified Xerox copy of the complaint filed by respondent. On the first page of the same, learned Metropolitan Magistrate made the endorsement to the effect that, "taken on file against A1 and A2 u/s 18(a)(i) r/w Section 27(d) of Drugs and Cosmetics Act ... Issue ss to accused". After this, there are illogical words 'call on 23.08.2004'. It is not clear whether the learned Magistrate was directing the authorities to issue summons and call on 23.08.2004 or it was the date on which the learned Magistrate endorsed. In all probability, it would not have been the date on which learned Magistrate endorsed because initials of the Magistrate are found after the date. Generally, the signature or initials are followed by the date below the initials or signature but not before the signature. This only means in all probability the cognizance was taken much earlier. In any view, this Court hastens to add that it is not possible to decide whether the cognizance was taken on that day or the case was directed to be called on that day. This issue has to be gone into by the Magistrate himself. As per Section 2(d) of Cr.P.C., 'complaint' means an allegation made to Magistrate with a view to his taking action under Cr.P.C. that some person whether known or unknown has committed an offence. When a complaint is made, the Magistrate may take cognizance of the offence under Section 191 Cr.P.C. After taking cognizance, the Magistrate has to follow the procedure contemplated in Chapter XV. Magistrate has three options. These are (i) to examine complainant for taking cognizance; (ii) return complaint to proper Court if Magistrate is not competent to take cognizance; and (iii) dismiss complaint after considering the statements recorded. Before taking cognizance after examining complaint and issuing the process, Magistrate may postpone issue of process against accused for the purpose of enquiry or investigation. These are (i) to examine complainant for taking cognizance; (ii) return complaint to proper Court if Magistrate is not competent to take cognizance; and (iii) dismiss complaint after considering the statements recorded. Before taking cognizance after examining complaint and issuing the process, Magistrate may postpone issue of process against accused for the purpose of enquiry or investigation. In case learned Magistrate recorded a statement of a complainant or when the Magistrate having regard to proviso to Section 200 of Cr.P.C. takes cognizance without recording the statement (where complaint is presented by a public servant), then complaint is said to have been taken cognizance. Be it noted, Section 468 of Cr.P.C. bars taking cognizance of an offence after expiry of period of limitation. In case Magistrate takes cognizance but postpones issue of process for the purpose of enquiry or investigation, including awaiting Analyst/scientific report, what would be the effect on the same? In Chief Enforcement Officer v Videocon International Limited (2008) 2 SCC 492 , Supreme Court decided whether issuance of process in criminal case is one and the same thing, or can be equated with taking cognizance by criminal Court. In the said case, appellant filed a complaint before the Court of Chief Metropolitan Magistrate, Esplanade (CMM) under Sections 18(2) and 18(3) read with Section 68(1) punishable under Section 56(1)(ii) of Foreign Exchange Regulation Act, 1973 (FERA). CMM took cognizance and issued summons to accused on 03.02.2003 requiring the respondent to appear before the Court and answer the charge under FERA. Criminal Petition was filed in High Court of Judicature at Bombay under Section 482 Cr.P.C. and Article 227 of Constitution of India for quashing the complaint. The High Court quashed it holding that since the process was issued in February, 2003, the proceedings were time barred. A submission was made that taking cognizance of an offence cannot be equated with issuance of process. The apex Court after referring to provisions in Chapter XIV consisting of Sections 190 to 199, Chapter XV consisting of Sections 200 to 203, and Chapter XVI as well as earlier decisions of Supreme Court, laid down as under. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. "Taking Cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. Applying the above principles, Supreme Court held that cognizance of offence was taken by CMM on 24.05.2002 itself when the complaint was filed pursuant to which the process was issued on 03.02.2003. Supreme Court, therefore, held that issue of process on 03.02.2003 was consequent to taking of cognizance by CMM on 24.05.2002 and therefore, taking cognizance cannot be equated with issuance of process because cognizance taking is condition precedent for issue of process and both need not be simultaneous. Coming to facts of the case on hand, according to respondent the complaint was filed in the Court on 15.05.2002 and the same was numbered as calendar case No.449 of 2000. The Drugs Inspector deposited one sealed portion in the Court on 16.08.2000 vide PI No.164 of 2004. The Court sent the sample to CDL, Calcutta, who statedly received sample on 05.09.2000 and submitted a report, dated 25.09.2000. All this would indicate that learned Magistrate took cognizance immediately after the case was filed before him and if summons was issued for appearance on 23.08.2004, the same does not attract Section 468(1) of Cr.P.C. This Court, however, hastens to add that question of limitation is again a matter, which subject to relevant evidence, Criminal Court has to decide. All this would indicate that learned Magistrate took cognizance immediately after the case was filed before him and if summons was issued for appearance on 23.08.2004, the same does not attract Section 468(1) of Cr.P.C. This Court, however, hastens to add that question of limitation is again a matter, which subject to relevant evidence, Criminal Court has to decide. Proceeding under Article 226 of Constitution of India is not suited for appreciation of evidence. The Metropolitan Magistrate Court has to go into all these aspects and also consider the report of CDL. Further more, if the report of CDL is in favour of petitioner, it is always open to them to move an application for discharge, in which event, the same shall be considered in accordance with law. In the result, for the above reasons, the writ petition fails and is accordingly dismissed without any order as to costs.