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2017 DIGILAW 1411 (JHR)

Galpha Laboratories Limited v. State of Jharkhand

2017-08-09

RONGON MUKHOPADHYAY

body2017
JUDGMENT : 1. Heard Mr. Anil Kumar, learned senior counsel for the petitioner and Mr. Vijay Kumar Gupta, learned A.P.P. for the State. 2. In this application, the petitioner has prayed for quashing of the entire criminal proceedings in connection with C-III Case No. 122/2014, including the order dated 23.04.2014 passed by the learned A.C.J.M., Ranchi, whereby and whereunder cognizance has been taken for the offence punishable u/s 27(d) of the Drugs & Cosmetics Act, 1940. 3. The allegation made in the complaint petition instituted by the Drug Inspector is to the effect that the Drug Inspector had taken a sample for the medicine Decicort Tab. Manufactured by the petitioner’s company for test analysis on 12.02.2006 from M/s Prabhat Pharmacy, Patarhatu, Silli, Ranchi which was sent to the Government Analyst CDL, Kolkata for its analysis in Form-18. It is alleged that the Government Analyst in the report dated 21.05.2007 declared the medicine to be sub-standard as it did not conform to the claim with respect to Dexamethasone Sodium Phosphate content. It is alleged that the medicine was supplied by M/s Sanjay Drug Agency to M/s Prabhat Pharmacy, Patrahatu. Further allegation has been levelled that the medicine was supplied to M/s Sanjay Drugs, Ranchi by A.K. Pharmaceuticals Agency, Sri Ram Complex, S.N. Road, Ranchi vide bill dated 09.11.2005 and the petitioner’s company had supplied the medicine to M/s A.K. Pharmaceuticals Agency. It is alleged that since the petitioner’s company was the manufacturer of the said drug in terms of Section 18(A) one part of the sample was made available to the petitioner’s company and explanation was demanded but since nothing was made available the complaint case was instituted. Upon instituting the complaint case cognizance was taken by the learned A.C.J.M., Ranchi om 23.04.2014 u/s 27(d) of the Drugs and Cosmetics Act, 1940. 4. It has been submitted by the learned senior counsel for the petitioner that the allegation has been levelled of violation of Section 18(b) of the Act but the same relates to maintenance of records and furnishing of information and as would be apparent from the complaint petition there is no allegation that the petitioner’s company was not maintaining the records, registers and other documents. It has been submitted that so far as Section 22(1) of the Act is concerned the same also is not applicable in the facts and circumstances of the case. It has been submitted that so far as Section 22(1) of the Act is concerned the same also is not applicable in the facts and circumstances of the case. Learned senior counsel for the petitioner further submits that a reply was submitted by the petitioner’s company on 07.06.2010 to reanalyze the report since the batch under reference was analyzed at the end of the company and it was found to be conforming to the standard. Learned senior counsel further submits that because of different methods of analysis the discrepancy was found and as because the report of the Government Analyst was not served upon the petitioner therefore no objection could be raised by the petitioner. Learned senior counsel for petitioner submits that maximum punishment which can be imposed u/s 27(d) of the Drugs and Cosmetics Act is of 2 years imprisonment and in view of the provisions of Section 468 Cr.P.C. the complaint petition itself was hopelessly time barred. It has been submitted that the learned A.C.J.M., Ranchi instead of taking cognizance should have straightaway dismissed the complaint petition on the ground of delay. Learned senior counsel for the petitioner further submits that the reason for delay is unsatisfactory as would be apparent from the forwarding letter addressed by the Drug Inspector to the learned Additional Chief Judicial Magistrate, Ranchi. 5. Learned A.P.P. for the State on the other hand has opposed the prayer made by the petitioner and has submitted that complaint petition clearly reveals the fact that the Drug which was manufactured by the petitioner’s company was not in conformation with the standards required and therefore criminal prosecution was lodged against the petitioner. It has been submitted that the test report was made available to the petitioner and an explanation was also sought for but since no explanation was submitted by the petitioner’s company the complaint case was instituted. It has been submitted that sanction was given by the competent authority and thereafter the complaint case was instituted and considering the gravity of the offence cognizance had rightly been taken by the learned court below u/s 27(d) of the Drugs and Cosmetics Act which does not require any interference by this Court. 6. It is an admitted fact as per the complaint petition itself that the sample of medicine manufactured by the petitioner’s company was collected on 12.02.2006. 6. It is an admitted fact as per the complaint petition itself that the sample of medicine manufactured by the petitioner’s company was collected on 12.02.2006. The report of the Government Analyst was dated 21.05.2007 which declared the medicine to be sub-standard. The complaint case was instituted on 22.04.2014 and on 23.04.2014 cognizance was taken by the learned A.C.J.M., Ranchi u/s 27(d) of the Drugs and Cosmetics Act. It would thus appear that more than 8 years have passed from the date of collection of the sample till the date of taking of cognizance or for that matter till the date of filing of the complaint. A feeble attempt has been made by the prosecution with respect to the delay in instituting the complaint case but such explanation seems to be totally unreasonable and unsatisfactory. The maximum punishment which can be imposed u/s 27(d) of the Act is of two years and the period of limitation as prescribed in Section 468 of the Cr.P.C. is three years and the complaint case having been instituted beyond the period of three years the prosecution of the petitioner cannot be allowed to continue. The period of limitation is to be computed from the date the alleged occurrence is said to have taken place till the date the complaint is instituted and even in the said circumstances the institution of the case was almost more than 8 years from the date the Act was complained of. In the case of Sarah Mathew versus Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian And Others reported in (2014) 2 SCC 62 it was held as follows:- “51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC.” 7. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC.” 7. Therefore considering the totality of the circumstances enumerated above it can be concluded that the complaint was preferred way beyond the period of limitation prescribed and in such circumstances therefore the learned Additional Chief Judicial Magistrate, Ranchi was precluded from taking cognizance for the act complained of. 8. Accordingly, there being merit in this application the same is allowed and the entire criminal proceedings in connection with C-III Case No. 122/2014, including the order dated 23.04.2014 passed by the learned A.C.J.M., Ranchi, whereby and whereunder cognizance has been taken for the offence punishable u/s 27(d) of the Drugs & Cosmetics Act, 1940 is, hereby, quashed and set aside.