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2017 DIGILAW 1412 (JHR)

Vijay Kumar Agrawal v. State of Jharkhand

2017-08-09

RONGON MUKHOPADHYAY

body2017
ORDER : Rongon Mukhopadhyay, J. 1. Heard Mr. Sumeet Gadodia, learned counsel for the petitioner and Mr. Sanjay Kumar Pandey, No. 2, learned A.P.P. for the State. In this application, the petitioner has prayed for quashing of the entire criminal proceedings in connection with Complaint Case No. C3-114/2014, including the order, dated 14.03.2014 passed by the learned A.C.J.M., Ranchi, whereby and whereunder cognizance has been taken for the offences punishable u/Ss. 27(d) and 28-A of the Drugs & Cosmetics Act, 1940. 2. The prosecution story based on the report filed by the Drug Inspector, Ranchi-1 is that on 29.08.2009 the sample of Absorbent Cotton Wool, IP Batch No. 6, Manufacturing Date June, 2009, Expiry Date May, 2012 was taken from the shop of M/s. Agrasen Pharma, S.N. Road, Ranchi in presence of its partner. The manufacturer of the Absorbent Cotton was shown as M/s. Cotex Surgical Corporation, Dumra Road, Sitamarhi. The sample was collected for its testing and analysis with Form 17. It is alleged that the Government Analyst, Central Drug Laboratory, Kolkata vide its Test Report in Form 13 dated 05.03.2010 declared the sample to be sub-standard as it did not conform to IP 2007 with respect to the test for source active substance absorbency sinking time, water soluble substance and sulfated ash. It is further alleged that vide Office Letter No. 176 dated 13.03.2010, a copy of the Analysis Report was made available to M/s. Agrasen Pharma, S.N. Road, Ranchi with a direction to stop the sale. The purchase Invoice was demanded and the sold pieces were directed to be withdrawn from the market. It is also alleged that by the same letter information about the Test Report was furnished to the manufacturer, M/s. Cotex Surgical Corporation and they were requested to come and collect a copy of the Report. It is also alleged that M/s. Agrasen Pharma vide its letter received in the Office on 01.04.2010 intimated to the complainant that the copy of the Purchase bill was misplaced. Further allegation has been levelled that incompliance of the provisions contained in Section 23(4)(iii) one part of the sample was sent along with the analysis Report to the manufacturing company and its explanation was sought for. Since, the accused No. 1 could not produce the purchase bill the same was in violation of the provisions of Section 18(b) punishable u/S. 28(1)(a) of the Drugs & Cosmetics Act, 1940. Since, the accused No. 1 could not produce the purchase bill the same was in violation of the provisions of Section 18(b) punishable u/S. 28(1)(a) of the Drugs & Cosmetics Act, 1940. It has been alleged that the manufacturing company has manufactured sub-standard drugs which is punishable u/S. 27(d) of the Drugs & Cosmetics Act, 1940. After the complaint was filed cognizance was taken by the learned A.C.J.M., Ranchi on 14.03.2014 u/Ss. 27(d) & 28-A of the Drugs and Cosmetics Act, 1940. 3. Learned counsel for the petitioner has submitted that the complaint itself was hopelessly time barred since the sample was taken on 29.08.2009 and after more than 4 years the complaint case was instituted leading to taking of cognizance on 14.03.2014. It has further been submitted that in terms of Section 468 of the Code of Criminal Procedure the filing of the complaint was way beyond the prescribed period of limitation and in such circumstances the complaint itself being time barred should have been dismissed by the learned Additional Chief Judicial Magistrate, Ranchi. Learned counsel for the petitioner further submits that no application had been filed for condonation of delay in filing the complaint and the learned A.C.J.M., Ranchi without considering the said fact took cognizance on 14.03.2014 which shows total non-application of mind on the part of the learned A.C.J.M., Ranchi. It has thus been submitted that the entire criminal proceedings as against the petitioner deserves to be quashed solely on the ground of delay in instituting the complaint case. 4. Mr. Sanjay Kumar Pandey, No. 2, learned A.P.P. for the State on the other hand has submitted that since the learned A.C.J.M., Ranchi was satisfied that an offence is made out under the provisions of the Drug and Cosmetics Act cognizance was taken. It has been submitted that the petitioner cannot take advantage with respect to the delay in institution of the case as the complaint petition was accompanied by a forwarding letter addressed to the learned A.C.J.M., Ranchi praying for condonation of delay. It has been submitted that the sample of Absorbent Cotton was tested before the expiry period and since the same was found to be sub-standard as such the complaint was instituted leading to taking of cognizance. It has been submitted that the sample of Absorbent Cotton was tested before the expiry period and since the same was found to be sub-standard as such the complaint was instituted leading to taking of cognizance. Learned A.P.P. for the State further submits that the petitioner cannot take a plea that the sample was tested after a considerable long period of time and that it had lost its qualitative value resulting in the same being found sub-standard in view of the fact that immediately after the sample was taken on 29.08.2009 the report was submitted on 05.03.2010. 5. After hearing the learned counsel for the parties and going through the records it is an admitted fact that the sample of Absorbent Cotton Wool was taken from M/s. Agrasen Pharma on 29.08.2009 and the sample report is dated 05.03.2010. The complaint was instituted by the opposite party No. 2 on 14.03.2014 and cognizance was taken on the same day itself. Thus it appears that more than 4 years have elapsed from the date the sample was taken till the date when the complaint case was instituted. In the complaint petition the opposite party No. 2 has merely stated about the factual aspects and has not given any reason with respect to delay in instituting the complaint case. The delay has been sought to be explained by a letter addressed to the learned Additional Chief Judicial Magistrate, Ranchi and not by way of any petition in which attempts have been made to explain the delay which however is totally unsatisfactory. Even if the letter dated 14.03.2014 is taken into consideration the same does not reasonably explain the delay in instituting the complaint. The learned A.C.J.M., Ranchi while taking cognizance on 14.03.2014 did not at all take into consideration the delay in institution of the complaint. Since, the complainant has also failed to explain the delay and since the maximum period of punishment u/S. 27(d) is two years and maximum punishment prescribed u/S. 28-A is one year and since the period of limitation as prescribed in Section 468 of the Code of Criminal Procedure is three years, in such circumstances, therefore, the criminal proceedings as against 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 more than 4 years from the date the Act was complained of. In the case of Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian and others, reported in (2014) 2 SCC 62 : ( AIR 2014 SC 448 ) 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." 6. Therefore considering the totality of the discussions made above it can be concluded that the complaint was made 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 offences alleged by the complainant. Accordingly, there being merit in this application same is allowed and the entire criminal proceedings in connection with Complaint Case No. C3-114/2014, including the order dated 14.03.2014 passed by the learned A.C.J.M., Ranchi, by which cognizance has been taken for the offences punishable u/Ss. 27(d) and 28A of the Drugs & Cosmetics Act, 1940 is, hereby, quashed.