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2010 DIGILAW 494 (UTT)

B. R. GUPTA v. STATE OF UTTARANCHAL

2010-07-21

DHARAM VEER

body2010
JUDGMENT Hon. Dharam Veer, J. These two petitions have arisen out of a common summoning order and the dispute to be decided in both of them is also same, hence both the petitions are being decided by this common judgment and order. 2. Both these criminal applications, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed for quashing the summoning order dated 08.12.2004 and to quash the entire proceedings of Criminal Complaint Case No. 94 of 2006 (1223/2004), State through Inspector of Drugs, Uttaranchal Vs. Naval Arora & others, pending in the court of Special J.M./J.M. First Class, Pithoragarh. 3. Heard learned counsel for the parties and perused the material on record. 4. In brief, the facts of the case are that the petitioners B.R. Gupta, A.K. Gupta and P.K. Sinha are the Chairman, Managing Director and General Manager respectively of the Company, namely, M/s Brawn Laboratories Ltd., Faridabad, Haryana. A complaint was filed by the respondent on 8.12.2004 before the court below stating therein that on 10.3.2003, he along with Arvind Kumar Gupta, Inspector Drugs, Nainital jointly inspected the Medicine Store of B.D. Pandey Distt. Hospital, Pithoragarh in presence of R.N. Prajapati, Officer I/c Pharmacy of the Store and collected Sample of Dexamethasone Sodium Phosphate Injection Batch No. 1220, D/M 06/02 and D/E 05/04 purported to be manufactured by the petitioners’ Company and sent the same for test and analysis to Government Analyst Uttaranchal at CDL Kolkata as per the provisions of the Drugs & Cosmetics Act, 1940 [hereinafter to be referred as the Act]. Thereafter, the Government Analyst, CDL Kolkata vide report dated 4.9.2003 declared the sample of Dexamethasone Sodium Phsophate Injection described above, not of standard quality. After the report of above test, CMS, BD Pandey Distt. Hospital, Pithoragarh was requested vide letter dated 26.9.2003 to disclose the name and address of the person by whom the drug was supplied and to submit the records pertaining to the supply of the said drug. After that CMS BD Pandey Hospital, Pithoragarh vide letter dated 6.10.2003 informed that the above noted drug was supplied by M/s Navchem Pharmaceuticals Ltd. Thereafter, on the basis of the information and documents provided by the CMS Pithoragarh, a show cause notice was served upon the said Company to provide an opportunity to explain its conduct in the subject matter. After that CMS BD Pandey Hospital, Pithoragarh vide letter dated 6.10.2003 informed that the above noted drug was supplied by M/s Navchem Pharmaceuticals Ltd. Thereafter, on the basis of the information and documents provided by the CMS Pithoragarh, a show cause notice was served upon the said Company to provide an opportunity to explain its conduct in the subject matter. Thereafter, M/s Navchem Pharmaceuticals Ltd. Submitted its reply on 12.11.2003 informing that the subject drug was purchased by them from M/s Brawn Laboratories Ltd., Faridabad. Thereafter, on the basis of the above noted information a show cause notice along with a sealed sample portion of subject drug and copy of test report signed by Govt. Analyst was served upon M/s Brawn Laboratories Ltd., as required U/s 23(4) and 25(2) of the Act vide letter dated 15.11.2003, to explain its conduct in the case. The said Company M/s Brawn Labs. Ltd. Vide letter dated 3.12.2003 submitted their reply copy. Thereafter the report of the matter including all facts and findings of the case was submitted to the Drug Licensing & Controling Authority, Uttaranchal who after due consideration, directed the respondent to launch prosecution against the accused. Further, that M/s Brawn Laboratories has sold the drug printed with inscription “ESI supply not for sale” on its label which is also misbranded u/s 17(c) (having contents less than claim) to be read with Section 18(a)(i) and 18(a)I(vi). The company has also violated the provisions of the Drug Price Control Order, 1995, which as per para 15 requires every manufacturer to write the price of medicine on its every sellable smallest container. The above violation has prompted M/s Navchem Pharmaceuticals to charge Rs. 3.62 per vial from the Govt., while the purchase per vial by the supplier (wholesaler) of drug have received the same from manufacturing company @ Rs. (2.52 + 16% excise + 4% CST) = 2.95. On the basis of this complaint filed by the Inspector of Drugs, Uttaranchal on behalf of the Government, learned Special J.M./J.M. First Class, Pithoragrah vide order dated 8.12.2004, took cognizance against the petitioners and summoned them under Sections 18(a)(i), 18(a)(vi) and 27 of the Act. Feeling aggrieved, the petitioners have filed these petitions. 5. Learned counsel appearing for the petitioners argued that no offence is made out against them and the petitioners have been wrongly summoned by the court below. Feeling aggrieved, the petitioners have filed these petitions. 5. Learned counsel appearing for the petitioners argued that no offence is made out against them and the petitioners have been wrongly summoned by the court below. I do not find any force in this argument for the reason that on a perusal of the complaint lodged by the respondent, who is an Inspector of Drugs, Uttaranchal as well as on perusing the report of Government Analyst dated 04.09.2003, in which it is stated that the sample of Dexamethasone Sodium Phosphate, which was manufactured by the Petitioners’ Company, was not of the standard quality and the fact that the said Company has sold the Drug printed with inscription “ESI Supply not for sale” on its label which is also misbranded, the offences punishable under Sections 18(a)(i).18(a)(vi)/27 of the Act are prima facie made out against the petitioners on the basis of the above-said discussion and the trial court has rightly proceeded to summon the petitioners to face trial. 6. Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused persons and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint against the petitioners are taken at their face value and accepted in their entirety at this stage, I am of the view that the petitioners have rightly been summoned by the trial court to face trial. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court. 7. For the reasons recorded above, there is no force in these applications. The applications C482 are devoid of merits and are hereby dismissed. Interim order dated 15.5.2006 & 14.6.2006 are vacated.