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2015 DIGILAW 464 (UTT)

B. R. GUPTA v. STATE OF UTTARAKHAND

2015-09-18

SUDHANSHU DHULIA

body2015
JUDGMENT : Hon’ble Sudhanshu Dhulia, J. (Oral) 1. The present applicants before this Court have challenged the order dated 14.01.2015 passed by the learned Chief Judicial Magistrate, Pithoragarh as well as the order dated 26.08.2015 passed by the learned Session Judge, Pithoragarh in Criminal Revision No. 06 of 2015. By means of the present application, the applicants have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. 2. By the order dated 14.01.2015, the learned Chief Judicial Magistrate, Pithoragarh, after taking into consideration the evidence produced by the prosecution under Sections 244 of Cr.P.C. as well as considering the application of the present applicants under Section 245 of Cr.P.C. for discharge, has rejected the application of the applicants (under Section 245 of Cr.P.C.) on the ground that prima facie there are enough materials for the prosecution to prosecute the accused. Thereafter, against the said order the applicants also preferred a revision before the revisional court, which was ultimately dismissed by the learned Sessions Judge, Pithoragarh vide order dated 26.08.2015. Now, the trial is proceeding in accordance with law. 3. The important aspect, which must be taken note at this stage, is that the proceedings in the present case was initiated as far back as on 10.03.2003, when the Drug Inspector, on a routine check took samples of a drug called “Dexamethasone Sodium Phosphate” (which was injectable medicine) having a Batch No. 1220, D/M 06/02 and D/E 05/04 which was manufactured by one M/s Brawn Laboratories Ltd., Faridabad, from the Government Hospital – B.D. Pandey, District Hospital, Pithoragarh and sent for Government Analyst, and ultimately to Kolkata. The drug in question was declared to be not of standard quality and the reason was that “the sample does not conform to IP with respect to volume of injection (Low).” This report, which is in Form No. 13 of Drugs and Cosmetics Rules, 1940 dated 30.07.2003/04.09.2003. Consequently, thereafter a complaint was filed by the Drug Inspector in the court of learned Chief Judicial Magistrate, Pithoragarh on 08.12.2014 for violation of Section 18(a)(i) and 18(a)(vi) of the Drugs and Cosmetics Act, 1940 for selling a drug which is not of a standard quality or misbranded or adulterated or spurious and a drug which is in contravention of provision of Drugs and Cosmetics Act. This makes a criminal offence under Section 27 of the Drugs and Cosmetics Act, under which the complaint was filed. 4. As per the complaint, which is filed as Annexure 3 to the present application, after receipt of drugs and cosmetics report, due notice was sent to the concerned persons, including the manufacturer of the drug. What reply the manufacturer gave to the said notice is nowhere on record, but pointed question being put to the learned counsel for the applicant - Mr. Shiv Nath Kumar. It was stated that prior to the filing of the complaint show cause notice was served on M/s Navchem Pharmaceutical, Meerut, who was the supplier of the said medicine to the District Hospital, Pithoragarh. The reply to the said show cause notice by M/s Navchem Pharmaceutical, Meerut was that they have purchased the drugs from M/s Brawn Laboratories Ltd., Faridabad, Haryana. Thereafter, the Inspector of Drugs Uttarakhand sent the letters to M/s Navchem Pharmaceutical, Meerut as well as M/s Brawn Laboratories Ltd. vide letters dated 15.11.2003 (annexure Nos. 7 and 8 to the application), which shows that the Inspector Drugs informed both these companies that a sample of Dexamethasom Sodium Phosphate Injection I.P. was taken from Medicine Store B.D. Pandey, District Hospital Pithoragarh on 10.03.2003 and the same was declared of not of standard quality by the Government Analyst, Uttaranchal and it was further requested to them to stop further sale of the said drugs. 5. Learned counsel for the applicants Ms. Pushpa Joshi, learned Senior Advocate with Mr. Shiv Nath Kumar has produced a copy of the reply to the said letter, which was sent by M/s Brawn Laboratories Ltd. (present applicant No. 4), which reads as under:- “Ref:- Your show-cause Notice vide letter No. D1/PTH/march-38/2003/18336 dtd. 15.11.2003 Sir, We thankfully acknowledge the receipt of your show-cause notice under reference and in this regard we wish to state that immediately after receipt of show-cause notice we had subjected control sample of Dexamethasone Sodium Phosphate Injection I.P. of the said Batch for testing and average content of the medicament has been observed as per label claim. However, we have requested M/s Navechem Pharmaceuticals, Meerut, M/s Goel Drug Agencies, Lucknow, M/s Raj Pharmaceuticals Lucknow, and M/s Venkatrama Secundrabad vide our letter of Nos. dtd. However, we have requested M/s Navechem Pharmaceuticals, Meerut, M/s Goel Drug Agencies, Lucknow, M/s Raj Pharmaceuticals Lucknow, and M/s Venkatrama Secundrabad vide our letter of Nos. dtd. 01.12.2003 respectively through whom all the supplies where effected, to confirm the stock position at their end also to take back the unconsumed stock of the said batch from the Hospitals/Institutions concerned with immediate effect copy of letters are enclosed herewith for ready reference. Meanwhile, to ascertain the average content, the said batch of Injection Dexamethasone Sodium Phosphate, may kindly be subjected for retesting in a thir Laboratory.” 6. How the matter subsequently, proceeded at such a slow pace before the learned Magistrate is not on record, but the Court is constrained to express its pain at the slow progress in the matter, particularly in view of the fact that there is not much work load before the CJM, Pithoragarh. 7. Nevertheless, be that as it may, after the prosecution evidence, an application was moved by the applicants under Section 245 of Cr.P.C. for discharge, which has been rejected by the court concerned (already referred above). There are various arguments raised by the applicants before the learned Magistrate for their discharge, two of them are important, which needs a mention, they are as under:- (i) that the applicants never gave a sample, which is a mandatory provision under Section 23 of Drugs and Cosmetics Act. (ii) that once the report of the Central Drugs Laboratory has been received by the Drug Inspector and notice of which was given to the manufacturer, the manufacturer had a right to give another report of the same sample before the court concerned or to the Drug Inspector, as the case might be. 8. No document has been shown before this Court, to prove that the present applicants had exercised their right provided under Section 25(3) of the Drugs and Cosmetics Act and had asked for retesting of the sample. The letter dated 03.12.2003 which has been quoted in extension as already been referred above only states that they have already subjected the control sample of Dexamethasone Sodium Phosphate (Injection I.P.) medicine for testing if the testing was done and the report would have been favourable to M/s Brawn Laboratories Ltd. i.e. applicant No. 4, the sample was liable to be presented before the Drug Inspector or before the court concerned. But they have done so. But they have done so. Therefore, this plea has been rightly rejected by the learned Magistrate although on a different ground that the application does not require a second test. In view of this case, the argument for the defence have rightly been rejected by the learned Magistrate. 9. The other objection being that a sample was not given to them. This again is not borne from the records, inasmuch as, under Section 18(A) of the Drugs and Cosmetics Act, the concerned authority at B.D. Pandey, District Hospital, Pithoragarh from where the sample was taken had given the name of the supplier of the manufacturer who situated at Meerut, as it has been told to this Court by Shiv Nath Kumar, learned counsel for the applicants. 10. It has further been explained that the sample was sent to the supplier at Meerut, therefore, as far as compliance of Section 23 of the Drugs and Cosmetics Act, regarding supply of a sample, is concerned, the same has been made. Furthermore, it is too late in the day to agitate for this matter. The matter is pending since 2004. It must come to an end. In this case, the application for pre-charge discharge has been rejected and now the charges have been framed. The matter shall proceed, in accordance with law, upon the evidence of the prosecution as well as other materials available on record. 11. It would be a travesty of the justice and an abuse of the process of court, if this Court to interfere in the matter at this belated stage. All that was required by the trial court was to see whether the evidence of the prosecution was good enough to proceed or not. It does not mean that the evidence itself is sufficient for the conviction, as that would be subject to argument before the court concerned. Needless to say that all the defence, which has been taken by the applicants before this Court, will be available to them at trial. At this stage, no interference is called for in the present matter at this stage. 12. With the aforesaid observation, the application under Section 482 Cr.P.C. is hereby dismissed.