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2012 DIGILAW 236 (KER)

Grover v. State of Kerala

2012-02-24

THOMAS P.JOSEPH

body2012
ORDER : Annexure-O, complaint dated October 04, 2002 submitted the second respondent, the Regional Drugs Inspector, Ernakulam before learned Judicial First Class Magistrate, Ernakulam for offences punishable under Section 18(a) of the Drugs (Price Control) Order, 1995 (for short, 'the DPC" Order) r/w Section 7 of the Essential Commodities Act (for short, "the Act") and the proceedings taken thereon are sought to be quashed, by accused Nos.1 to 5 and 8 to 10 invoking jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (for short, "the Code"), they having failed in their attempt to get a discharge under Sec.245(2) of the Code. 2. The case against petitioners and others is that they, without good and sufficient reasons withheld supply of medicine as per orders dated 22.03.2000, 29.05.2000, 08.06.2000 and 14.06.2000 placed by the third respondent, their stockist. M/s.Infar India Limited is the manufacturer of the medicine in question and M/s.Martin and Harris Ltd, its distributor. The third respondent is their stockist. Vide orders referred above, third respondent requested M/s.Martin and Harriss Ltd to supply medicine mentioned therein and signed blank cheques were enclosed along with the respective orders for the price of medicine ordered and required to be supplied. Medicine was not supplied as per orders placed regarding which third respondent preferred a complaint to the Drugs Inspector which ultimately resulted in Annexure-O, complaint before learned Judicial First Class Magistrate, Ernakulam. Learned Magistrate took the case on file as C.C. No.2494 of 2002. 3. Petitioners contend that no offence is made out on the allegations made in the complaint and that it is without satisfying whether petitioners had good and sufficient reasons to withhold supply of medicine that the second respondent filed the complaint. Petitioners were not even asked to explain whether they had good and sufficient reasons to withhold supply. It is contended that even as admitted by the third respondent and intimated to the second respondent, petitioners had supplied the medicine as per orders in question before second respondent preferred the complaint and based on that, third respondent had, with intimation to the second respondent withdrawn its complaint. In that circumstance there was no justification for the second respondent to prefer complaint against petitioners. In that circumstance there was no justification for the second respondent to prefer complaint against petitioners. It is contended that proceeding against petitioners is nothing but a travesty of justice and hence this Court may invoke its power under Sec.482 of the Code to quash the proceeding. Learned counsel, Shri T.L Tikku appearing for the petitioners has placed reliance on the decision of this Court in W.P(C) No.33994 of 2010 and the decision of the Supreme Court in V.P. Shrivastava v. Indian Explosives Ltd. & Others (2(2010) 159 Comp. Cases 529). It is contended by the learned counsel that authorities under the DPC Order are not concerned with the contractual rights and obligations of the parties. It is pointed out that as per order passed by this Court on 07.06.2011 the second respondent conducted a fact finding enquiry and concluded that petitioners had good and sufficient reasons to withhold supply of medicine as per the orders in question. In such a situation continuance of proceeding before the criminal court is nothing but an abuse of the process of court, waste of money, energy and time and in that circumstance this Court is justified in interfering under Sec.482 of the Code. 4. Learned Additional Director General of Prosecution Shri Tom Jose Padinjarekkara (for short, "the ADGP") has contended that facts and circumstances brought out does not require this Court to conduct a rowing enquiry and that too, on disputed facts based on disputed documents at this stage under Sec.482 of the Code to come to a conclusion whether there is evidence against petitioners. According to the learned ADGP, that is a matter which the trial court has to look into and that, petitioners had good and sufficient reasons to withhold supply of medicine (if it be so) is a defence that may be available to the petitioners before the trial court. It is also contended that this Court is not required to act upon documents produced by the petitioners/accused for the first time in this Court and it is for the trial court to peruse those documents and come to the conclusion whether petitioners had good and sufficient reasons to withhold supply of medicine. Learned ADGP contended that subsequent supply of medicine to the third respondent would not absolve petitioners of their liability under Sec.18(a) & (b) of the DPC Order. Learned ADGP contended that subsequent supply of medicine to the third respondent would not absolve petitioners of their liability under Sec.18(a) & (b) of the DPC Order. Reference is also made to Sec.10(c) of the Act to contend that this Court must start with the initial presumption that there was the requisite state of mind for petitioners to withhold supply of medicines. Learned ADGP placed reliance on the decisions in Radha Krishna v. State of Bihar (1979 Crl. L.J. 756), State of Bihar v. Kurad Ali Khan and Others (1988 KHC 1071), Rupan Deol Bajaj v. K.P.S. Gill (1995 KHC 396), Syed Hamid Bafaky v. Moideen (1996 Crl. L.J. 1013), Satish Kumar Modi v. State of U.P. (1996 Crl. L.J. 4260), L. Raja Krishna Reddy v. Satwik Drugs Ltd., Hyderabad (1999 Crl. L.J. 4865), S.K. Pharmaceuticals Ltd. & Another v. Ved Prakash Gupta ( 2002 (4) Crimes 212 ) and Srinivasa Hatcheries v. Agricultural Market Committee (2003 KHC 2092). 5. So far as the power of this Court under Sec.482 of Code and the scope of its exercise are concerned, there could be no dispute. It is settled by the various authoritative pronouncements that this Court while exercising power under Sec.482 of the Code is not required to go into disputed questions of fact which is a matter for the trial court to decide after a full-fledged trial. It is also stated that generally this Court is not required to take into account the defence an accused may have and the documents he may produce in defence of his case. But it is not as if the High Court while exercising power under Sec.482 of the Code is totally precluded from looking into a document produced by the accused and deciding whether there is any scope for a conviction in the case and whether the complaint is meritless. The only thing is that such power has to be exercised in exceptional circumstances. This has been held by the Supreme court in Mahesh Chaudharay v. State of Rajasthan ( (2009) 4 SCC 439 - paragraph 12) where it is held that except in very exceptional circumstances, the Court would not look into any document relied upon by the accused in support of his defence meaning thereby that in exceptional circumstances it could be done. In Harshendra Kumar D. v. Rebatilata Koley & Others ( (2011) 3 SCC 351 ) the Supreme Court after consideration of the relevant decisions on the point discussed the power of High Court under Sec.482 of the Code and held: "In our judgment, the above observations cannot be read to mean that in criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations". The Supreme Court hastened to add. "However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by the accused, the accusations -against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage". (emphasis supplied) The above view is relied and followed in Mrs. Anitha Malhotra v. Apparel Export Promotion Council & Another ( 2011 (8) Supreme 1 ). There it is held: ".....if on the face of the document which is beyond suspicion or doubt placed by the accused and if it is considered the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code". Governed by the above principles I shall look into the controversy. 6. In Annexure-O, complaint dated October 04, 2002 the only allegation second respondent has made against petitioners is that they, without good and sufficient reasons withheld supply of medicine to the third respondent. Annexures T, R2(b), V and W are the orders dated 22.03.2000, 29.05.2000, 08.06,200 and 14.06.2000, respectively placed by the third respondent with M/s.Martin and Harris Ltd, the distributor of the medicine. It is not disputed that M/s.Martin and Harris Ltd had received the said supply orders on time and those orders were accompanied by signed blank cheques towards the price. Annexure-C, is the letter dated 11.02.2000 issued by M/s.Martin and Harris Ltd to the third respondent whereby the latter was appointed as stockist for one year from 01.01.2000. Thus it is not disputed, and shown by Annexure-C, that during the time Annexures T, R2(b), V and W orders were placed by the third respondent, it was the stockist for M/s.Martin and Harris Ltd. 7. But there appears to have been some dispute initially between M/s.Martin and Harris Ltd and the third respondent as to the products concerning which the latter was appointed as stockist during the relevant time. Annexures A and B letters dated 22.12.1997 and 16.01.1999 issued by M/s.Martin and Harris Ltd to the third respondent appointing the latter as stockist referred to pro fertility products while in Annexure-C, reference is to Infar/Intercare products. There is no reference to pro fertility range of drugs in Annexure-C. There was correspondence between M/s.Martin and Harris Ltd and the third respondent regarding that matter. Ultimately, M/s.Martin and Harris Ltd clarified to the third respondent that they are stockist for the pro fertility products as well though there happened to be a typographical error in Annexure-C, letter in that reference in Annexure-C, letter was to Infar/Intercare products. By Annexure-F, letter dated 03.06.2000, M/s.Martin and Harris Ltd informed the All Kerala Chemist and Druggist Association (for short, "the Association") (with whom by then the third respondent had taken up the matter of non-supply of medicines) that they are willing to supply pro fertility range of medicines to the third respondent. Annexure-G, is letter dated 08.11.2000 from the Association informing M/s.Martin and Harris Ltd that they will inform their decision (regarding the dispute on failure to supply medicine). Annexure-G, is letter dated 08.11.2000 from the Association informing M/s.Martin and Harris Ltd that they will inform their decision (regarding the dispute on failure to supply medicine). Annexure-H is letter dated 08.11.2000 from the second respondent to M/s.Martin and Harris Ltd stating that the latter has withheld supply of medicine without good and sufficient reasons and calling upon M/s.Martin and Harris Ltd details of persons responsible for the conduct of business (to initiate prosecution proceeding). By Annexure-I, letter dated 25.11.2000, M/s.Martin and Harris Ltd gave details of persons responsible for conduct of its business to the second respondent. It is relevant to note that along with Annexure-F, letter, M/s.Martin and Harris Ltd has also enclosed photocopies of agreements (with the third respondent) and the second respondent was informed that due to a typographical error (which occurred in Annexure-C, letter), pro fertility products were not mentioned in Annexure-C, letter appointing the third respondent as its stockist for the period of one year from 2000 onwards. Annexure-J, is copy of letter dated 22.12.2000 from the Association informing the third respondent that the latter had not placed proper orders with M/s.Martin and Harris Ltd as agreed on 17.12.2000. That was followed by Annexure-K, letter dated 30.01.2001 sent by the third respondent to the second respondent stating that the third respondent has no further complaint against M/s.Martin and Harris Ltd as the latter has agreed to restore supply and hence the complaint preferred to the second respondent is withdrawn (it is revealed from the records that third respondent had not sent the letter referred to in Annexure-K to the second respondent claiming that as promised, M/s.Martin and Harris Ltd had not resumed supply (See Annexure-N, letter dated 02.04.2001). Annexure-L is the letter dated 30.01.2001 from M/s.Martin and Harris sent to the second respondent requesting to drop prosecution against them for the reason that they received supply orders from the third respondent. Annexure-M is the letter dated 20.02.2001 from M/s.Martin and Harris Ltd to the third respondent referring to the letter dated 19.02.2001 from M/s.Infar India Ltd to the third respondent asking them to place orders for the entire range of infar products in wholesale pack. It is also stated therein that third respondent has placed orders only for a few products and that too, for less than one box and wholesale pack. It is also stated therein that third respondent has placed orders only for a few products and that too, for less than one box and wholesale pack. It is also stated in that letter that M/s.Martin and Harris Ltd had requested third respondent to revert the entire range of infar products for prompt execution of the orders. Cheques were also returned to the third respondent requesting to send fresh cheques with fresh orders for the entire range of infar products. Annexure-N is the letter from the third respondent to the second respondent. 8. As it is seen from the above correspondences between the parties including second and third respondents, it appears to me that initially there was some dispute as to whether third respondent was appointed as stockist for pro fertility medicine during the relevant time (See Annexure-C, letter). This of course was clarified by M/s.Martin and Harris Ltd stating that the third respondent is the stockist for pro fertility range of products as well and it is by a typographical mistake that in Annexure-C, letter it happened to be mentioned as in respect of infar/intercare products. 9. Now the question is whether prosecution should be snapped at the threshold on the grounds pleaded by the petitioners? I referred to various decisions to say that in exceptional circumstances it is within the power of this Court to look into the documents produced by the accused which are beyond suspicion or doubt to see whether prosecution is sustainable. Not doubt, this Court is not required to conduct a rowing enquiry on the disputed facts based on the disputed documents. 10. The correspondences between M/s.Martin and Harris Ltd and the third respondent can be treated as documents which are beyond suspicion or doubt It is relevant to note that in Annexure-H, letter addressed to M/s.Martin and Harris Ltd the second respondent has not asked for any explanation from petitioners whether they had good and sufficient reasons to withhold supply of medicine as per orders placed by the third respondent. Instead, second respondent was asking petitioners to supply details of persons responsible for the conduct of business, certainly to initiate prosecution. Instead, second respondent was asking petitioners to supply details of persons responsible for the conduct of business, certainly to initiate prosecution. I am inclined to think having regard to the provisions of Sec.18 of the DPC Order and the punishment provided for its violation that second respondent should have initiated prosecution against petitioners only on arriving an objective satisfaction that it was without good and sufficient reasons that petitioners withheld supply of medicine to the third respondent. None of the records show that second respondent had arrived at that objective satisfaction before deciding to prosecute petitioners. 11. Initiation of prosecution cannot be taken in a" light hearted manner and particularly when it comes from an authority constituted by the Government. It was obligatory on the part of second respondent to have formed an objective satisfaction whether petitioners had good and sufficient reasons to withhold supply and only after attaining the satisfaction that petitioners had no good and sufficient reasons that the second respondent should have decided to prosecute them. I am inclined to think that second respondent could not have taken a stand that unmindful of the question whether petitioners had good and sufficient reasons and without even looking into that matter, second respondent could have initiated a prosecution leaving it to the petitioners to defend the prosecution on the ground that they had good and sufficient reasons. 12. This Court had, by order dated 07.06.2011 taking note of the factual situation and after hearing learned counsel for petitioners and the learned Public Prosecutor who then appeared for respondents 1 and 2 passed order directing the second respondent to look into the matter and decide whether there was good and sufficient reasons for petitioners to withhold supply of medicines. The second respondent conducted an enquiry and submitted his report dated 01.09.2011 which the learned Senior Government Pleader has in fairness produced in this Court. In that report, second respondent states that after examining all the documents submitted before him and the documents placed before the trial court it was found that: "(i) There occurred a refusal for supply of drugs to a licensed dealer. (ii) The claim that the third respondent failed to place orders for wholesale packs may be considered as a good and sufficient reason but the petitioners did not bring this mater to the notice of the third respondent in time (it should be 'second respondent'). (ii) The claim that the third respondent failed to place orders for wholesale packs may be considered as a good and sufficient reason but the petitioners did not bring this mater to the notice of the third respondent in time (it should be 'second respondent'). (iii) The claim that the third respondent is entitled to get pro fertility range of drugs manufactured or sold by petitioner No.8 (Infar India Ltd.) is not sustainable as per the Drugs (Prices Control) Order, 1995. (iv) The petitioners had resumed the supply of drugs to the third respondent before filing the complaint in the trial court. This matter was also clarified by the third respondent. (v) The then complainant in C.C. No.2494 of 2002 at the trial court failed to verify the status of the allegation raised by the third respondent after resuming the supply of drugs to them by the petitioners before filing the complaint in the trial court". 13. In short, second respondent after conducting the fact finding enquiry has come to the satisfaction that petitioners had good and sufficient reasons for not supplying medicine as per Annexures-T, R2(b), V and W orders referred to above. Had the second respondent conducted that enquiry before initiating prosecution, he would have been satisfied that petitioners had good and sufficient reasons to withhold supply of medicine though temporarily and would have decided not to proceed as against petitioners. 14. Learned Additional DGP is right in his submission that this Court is not bound by the report referred above and that it is within the power of this Court either to accept or reject the report or even direct the trial court to consider acceptability of the report. In deciding that, I must refer to the relevant orders placed by the third respondent which I have already referred above. At page 41 of the Additional Paper Book submitted by petitioners they have extracted the orders placed by the third respondent as per Annexures-T, R2(b), V and W and on a comparison of the chart given at page 41 with those Annexures, I find that orders given in those Annexures are reproduced in the chart at page 41. It is seen that though not in the entirety, all of the orders were not for the wholesale pack. It is seen that though not in the entirety, all of the orders were not for the wholesale pack. No doubt, orders which did not comply with the wholesale pack are very less in number, may be one each in some of the orders. But I am to consider whether there is good and sufficient reasons for the petitioners to withhold supply of medicine. 15. In that regard reference can be made to Annexure-C, letter appointing the third respondent as stockist for one year from 01.01.2000 (which remained current during the time the orders were placed). Annexure-C, letter states that the third respondent is appointed as stockist on the terms and conditions referred to therein and clause 3 therein read as under: "All the orders shall only be for wholesale packs". 16. As above stated from Annexures-T, R2(b), V and W as clarified at page 41 of the Additional Paper Book submitted by the petitioners, at least a few of the orders placed by the third respondent were not of the wholesale pack. If that be so, it was possible for petitioners invoking clause (3) of conditions imposed on third respondent by Annexure-C, letter to withhold supply of medicine. In this connection it is relevant to refer to the decision rendered by the learned Single Judge in W.P(C) No.33949 of 2010. There, the scope of Sec.18 of the DPC Order was considered and it is held in paragraph 10(4) that, "the Drugs Controller shall not interfere with the contractual obligations of the manufacturer and stockist or in any manner deal with the request of any dealer for being the stockist of any manufacturer". 17. Going by condition No.3 in Annexure-C, third respondent was obliged to place orders for the wholesale -packs and from the relevant Annexures and clarificatory statement given by petitioners in page 41 of the Additional Paper Book, it is seen that at least with respect to certain items the third respondent had not complied with the said condition. It is certainly taking into account the above circumstances that the Association by Annexure-I. letter dated 22.12.2000 addressed to the third respondent advised the latter to place proper orders with M/s.Martin and Harris Ltd (referring to the order dated 18.12.2000). 18. It is certainly taking into account the above circumstances that the Association by Annexure-I. letter dated 22.12.2000 addressed to the third respondent advised the latter to place proper orders with M/s.Martin and Harris Ltd (referring to the order dated 18.12.2000). 18. Having regard to the above circumstances I am inclined to think that second respondent has after a fact finding enquiry and going through the relevant documents come to the conclusion that M/s.Martin and Harris Ltd had good and sufficient reasons for not complying with the orders immediately on its receipt. 19. I must also notice that though later but certainly before launching prosecution, M/s.Martin and Harris Ltd had supplied medicine ordered by the third respondent to the satisfaction of the latter and that matter was confirmed by the third respondent also with due intimation to the second respondent who was requested to withdraw its complaint." One finds a copy of that letter dated 02.04.2001 at Page 65 of the Additional Paper Book and addressed to the second respondent where the third respondent has stated as under: "Subsequently M/s.Martin and Harris Ltd has effected supply of Infar India Ltd on 27.03.2001 vide their Invoice No.16687 dated 26.03.2001 to us. They have not issued us any letter stating that they will continue to supply the products". 20. So far as the latter part of the above statement is concerned it has no bearing on the question whether the present complaint should stand or not. But so far the former portion extracted is concerned I must note that that by itself may not absolve petitioners of their liability under Sec.18(c) of the DPC Order. That also is a matter which this Court is entitled to look into while considering the request of petitioners under Sec.482 of the Code. 21. I stated from the report submitted by the second respondent that there was good and sufficient reasons for M/s.Martin and Harris Ltd to withhold, though temporarily supply of medicine. Along with that, there is the stand of third respondent that it has no complaint as medicine has already been supplied even prior to the initiation of complaint. 21. I stated from the report submitted by the second respondent that there was good and sufficient reasons for M/s.Martin and Harris Ltd to withhold, though temporarily supply of medicine. Along with that, there is the stand of third respondent that it has no complaint as medicine has already been supplied even prior to the initiation of complaint. In this connection I take note of the statement made by the second respondent in his report that the then complainant (Drugs Inspector who launched the prosecution) has not gone into the question whether petitioners had good and sufficient reasons for withholding the supply which I stated was the foremost thing the second respondent was required to decide before launching the prosecution. In other words the very substratum of the prosecution is shattered by the statement of the second respondent not only that petitioners had good and sufficient reasons to withhold supply of medicine but also that it was without reference to that question that second respondent has decided to launch prosecution. In my view, the above is sufficient to scuttle the prosecution initiated by the second respondent. In such circumstances directing the petitioners to suffer the ordeal of a long drawn trial, appeal or revision arising therefrom and ultimately to get an acquittal in my view would amount to travesty of justice. This is a certainly a circumstance which this Court has to take into account while considering the request of petitioner. Having these aspects in mind, the interest of justice requires this Court to interfere in the mater. Continuance of the prosecution in my view is an abuse of the process of court. 22. In the view I have taken, there is no reason why the benefit of this order should not go to the other accused if any in C.C. No.2494 of 2002 who have not challenged the prosecution. Hence it is directed that proceeding against those accused who have not challenged the complaint in C.C. No.2494 of 2002 will also stand quashed. In the result, Criminal Miscellaneous Case is allowed. Annexure-O, complaint filed by the second respondent in the court of learned Judicial First Class Magistrate-II, Ernakulam and all the proceedings initiated against petitioners and all other accused if any in C.C. No.2494 of 2002 will stand quashed. Criminal Miscellaneous Application No.5191 of 2006 will stand closed.