Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1465 (HP)

Ankur Gulati v. State of H. P.

2016-07-22

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India seeks quashing of the prosecution launched against the petitioners under Section 32(2) of the Drugs and Cosmetics Act, 1940 and Rules 1945 under Section 18 (a) (i) read with Section 17 & 18 (c) punishable under Section 27 (d) and 27(b) (ii) of the Drugs and Cosmetics Act, 1940 (for short ‘Act’). 2. Brief facts of the case are that the prosecution has been launched against the petitioners on the basis of the complaint filed by respondent No.1, on the allegation that he inspected the premises of the firm M/s Elnova Pharma on 03.01.2012 and during the inspection found eight boxes containing 3307 tubes of drug ‘Freeze Gel’ B. No. 275’, manufactured for respondent No.2, M/s Elnova Pharma. It was found that no manufacturer address was mentioned on the said drug and the licence No. S-MNB/09/61 and S-MB/09/62 was printed on the said drug, but the same did not relate to respondent No.2. That apart, after checking the licence of respondent No.2 it was noticed that the firm had not been granted permission to manufacture the said category of drug and when the proforma respondent No.3, who was present at the spot was asked to disclose about the licence, even the accused-respondent No.3 had failed to produce the copy thereof. 3. The quashing of the complaint has been sought on the following three grounds: “(A) As to whether the drug namely ‘Freeze Gel’ B. No. 275, Mft. Date-07/2011, Exp. Date-06/2013, quality the criteria to come in the purview of not of Standard Quality, Misbranded Drugs, Adulterated Drug, Spurious Drug as defined U/S 16, 17, 17-A and 17-B respectively of the Drugs and Cosmetics Act. (B) As to whether the prosecution has been able to make out a prima-facie case against the Accused No.1 to 4, in accordance with the provisions contained in Sec. 34(1) of Drugs and Cosmetic Act and whether the complainant has not conducted investigation properly to established that the Accused No. 2 and 3 as person in-charge of and were responsible persons to the company for the conduct of the business of the Company. (C) As to whether the Accused No. 1 to 4 are not being the manufacture or the agent for the distribution of the drug in question of the manufacturer, as thus are entitled for the benefits of Section 19 (3) of Drugs and Cosmetics Act, 1940.” 4. The allegations in so far as grounds (A) and (C) are concerned, undoubtedly, the question raised therein is essentially a matter of trial and, therefore, the complaint cannot be quashed on those grounds. 5. As regards, the ground No. (B), it is the specific case of the petitioners that the drug in question was purchased by them from proforma respondent No.7, whereas the proforma respondent No.7 has clearly stated that it had a valid drug and approval licence for the manufacture of the ‘Freeze Gel’ in question and had supplied the same to respondent No.2 in terms of the order placed to this effect vide purchase order dated 2.7.2011. After noticing the printing error, the respondent No.2 and its partners were requested to re-call the stock of ‘Freeze Gel’ drug in question and the said letter was duly acknowledged by the petitioners. The respondent No.2 in its letter dated 4.8.2011 had stated “we acknowledge the receipt of the same and as per your guidelines we are recalling whatever the stocks sold in the market and will return the stocks for replacement on full receipt of the stocks”. However, the respondent No.2 i.e. M/s Elnova Pharma never returned back the goods and after one year when the Drug Inspector inquired about the product ‘Freeze Gel’ of batch No.275, manufactured by respondents No. 4, 5, and 7, which was replied by these respondents vide letter dated 24.7.2012 clearly specifying that they had already made a request to Elnova Pharma for recalling of the product ‘Freeze Gel’, but till date they had not sent back any stock of ‘Freeze Gel’ for collective action. However, it was clearly mentioned that “due to the printing mistake the carton and tube has been printed without manufacturer’s name but drug manufacturing licence number is clearly mentioned on both tube and carton. This mistake is done unknowingly”. The respondent No.2 i.e. M/s Elnova Pharma never returned the recall ‘Freeze Gel’ and kept the entire supply with them for the reasons best known to them. 6. This mistake is done unknowingly”. The respondent No.2 i.e. M/s Elnova Pharma never returned the recall ‘Freeze Gel’ and kept the entire supply with them for the reasons best known to them. 6. In such scenario, the question arises as to whether the respondent No.2 of which the petitioners are the Directors could have retained the drug i.e. ‘Freeze Gel’. Once the specific case of the petitioners is that they have not manufactured the drug in question, then the further question as to whether they are the person in-charge or were responsible persons to the Company for conducting the business of the Company, is hardly of any consequence. Being the Directors of the Company, they were obviously responsible for the conduct of its business. 7. The learned counsel for the petitioners would then argue that in view of the affidavits of petitioners No. 1 and 2, they cannot be prosecuted in the instant case. Much reliance is placed upon the contents contained in paras 3 to 5 of the affidavits given by petitioner No.1 which reads as under: “3. That the said firm is technically managed by the qualified employees who are responsible for the day to day conduct and control of the business activities and I am not responsible for the routine working and other government concerning activities of the department. 4. That Sh. Rohit Kumar son of Sh. Ram Ootar aged 27 years permanent resident of Janderpur, P.O. Gairowala (Shiv) Teh-Bijnour, Distt. Bijnour (U.P.) is full time appointed competent person of the above said firm responsible for manufacturing of drugs for the sale and/or distribution who possesses qualification as prescribed under Rule 71 (1) (a) or 71 (1) (b) and 76(1) (a) or 76(1) (b) of the Drugs and Cosmetics Rules 1945 and he is not engaged anywhere else in any kind of service or business to the best of my knowledge. 5. That Sh. A.K. Saxena son of Sh. O.P. Saxena, aged 47 years permanent resident of Kaushal Puri, P.O. R.K. Nagar, Teh-Kanpur, Distt. 5. That Sh. A.K. Saxena son of Sh. O.P. Saxena, aged 47 years permanent resident of Kaushal Puri, P.O. R.K. Nagar, Teh-Kanpur, Distt. Kanpur (U.P.) is full time appointed competent person of the above said firm responsible for testing of all substances to be used for or incorporated in the drugs for sale and/or distribution who possesses qualification as prescribed under Rule 71(4-A) and/or 76(4-A) of the Drugs and Cosmetics Rules, 1945 and he is not engaged anywhere else in any kind of service or business to the best of my knowledge”. The aforesaid portion is extracted from the affidavit filed by petitioner No.1 and verbatim similar contents appear in the affidavit of petitioner No.2. 8. On the strength of these affidavits, the petitioners would claim that if at all anybody was the person in-charge and responsible to the Company for conducting of its business, it was either Sh. Rohit Kumar or Sh. A.K. Saxena of both of them, but in no manner could the petitioners be prosecuted as they were neither the person in-charge nor were responsible persons to the Company for the conduct of the business of the Company. 9. Strength is further sought to be drawn from the affidavits alleged to have been executed by Rajiv Tiwari and Arun Kumar Saxena, which have been placed on record as Annexures P-2/C and P-2/D, respectively, more particularly, the following contents of para-2 of Rajiv Tiwari which reads as under: “2. That I shall also be working as over all In charge-cum-sole person responsible for day to day conduct and control of business activities and the partner of the firm will not be responsible for day to day activity and control of the business and all Govt. concerning activities of the department.” And para-3 of the affidavit of Arun Kumar Saxena, which reads as under: “3. That I am the competent person responsible for testing of the drugs for sale and/or distribution of the above said firm and possesses qualification as prescribed under 71 (1) (a) or 71(1) (b) and 76(1) (a) or 76(1)(b)/Rule 71 (4-A) and/or 76(4-A) of the Drugs and Cosmetics Rules, 1945 i.e. B. Pharmacy/M.Sc. Chemistry/B.Sc./Other. The said qualification is done from D.A.V. College Kanpur (name of College) under Kanpur (name of University) in the year 1991”. 10. Chemistry/B.Sc./Other. The said qualification is done from D.A.V. College Kanpur (name of College) under Kanpur (name of University) in the year 1991”. 10. In addition thereto, strength is also sought to be drawn from the affidavit executed by one Diwakar Shukla wherein in para-3, it has been mentioned as under: 3. That I am the competent person responsible for testing of the drugs for sale and/or distribution of the above said firm and possesses qualification as prescribed under 71 (1) (a) or 71(1) (b) and 76(1) (a) or 76(1)(b)/Rule 71 (4-A) and/or 76(4-A) of the Drugs and Cosmetics Rules, 1945 i.e. B. Pharmacy/M.Sc. Chemistry/B.Sc./Other. The said qualification is done from R.G.C. Bhopal (name of College) Under Barkatullah (name of University) in the year 2004”. 11. Learned counsel for the petitioners would vehemently argue that under Section 34 of the Act, it is only the person in-charge and who were responsible persons to the Company for conducting of its business that can be prosecuted and at the relevant time it was either Rohit Kumar and Arun Kumar Saxena and Diwakar Shukla, who were responsible for the conduct of business and, therefore, all of them ought to have been prosecuted and under no circumstance, could the prosecution have been launched against the petitioners. 12. I have considered the submissions of the petitioners and find that there can be no quarrel with the proposition that it is only the person, who at the time of complaint were the person in-charge and were the responsible persons to the Company for conducting of the business of the Company, who alone can be prosecuted and this was so held by this Court vide detailed judgment rendered in the case of Ashok Kumar Tyagi vs. State of H.P. and others, I.L.R. 2015 (II) H.P. page 937 and SLP (Criminal) No.85 of 2015 filed by the State of H.P. against this decision also stands dismissed by the Hon’ble Supreme Court on 24.9.2015. 13. But the moot question is as to whether any benefit can be derived by the petitioners on the basis of the affidavits or judgment rendered by this Court. To say the least, the conduct of the petitioners is not at all fair. 13. But the moot question is as to whether any benefit can be derived by the petitioners on the basis of the affidavits or judgment rendered by this Court. To say the least, the conduct of the petitioners is not at all fair. It would be noticed that the premises of the petitioners were admittedly raided on 3.1.2012, while not only the affidavits of the petitioners but even those of Rajiv Tiwari, Arun Kumar Saxena and Diwakar Shukla have been executed much later on 14.4.2013. 14. That apart, the affidavits have been executed on stamp papers which have been purchased nearly two years back on 11.5.2011.Thus, the conduct of the petitioners in executing their affidavits and obtaining affidavits of three other persons namely Rajiv Tiwari, Arun Kumar Saxena and Diwakar Shukla is not definitely above board, because admittedly none of the aforesaid three persons are accused in this case and are probably sought to be made scape-goats in this case. 15. As a last ditch effort, learned counsel for the petitioners would argue that the petitioners were not at all aware of the drug lying in the godown and therefore, on this ground alone, no prosecution could have been launched against them. 16. Even this submission is equally without any substance and against the provisions as contained in Section 19(1) of the Act which reads as under: “19. Pleas. – (1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug [or cosmetic] in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale.” 17. The cumulative effect of the observation and discussion made hereinabove is that there is no merit in this petition and the same is accordingly dismissed along with pending applications if any. Interim order granted on 7.8.2015 is vacated.