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2018 DIGILAW 724 (JK)

Munish Gupta v. Faridia Pharmaceuticals

2018-09-26

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. The instant criminal revision has been filed by the petitioner for quashing of order dated 27.12.2013 passed by the learned Additional Sessions Judge, Doda by virtue of which the complaint preferred by the petitioner u/s 18(a)(i) read with Section 27(c) of the Drugs and Cosmetics Act 1940, was transferred to the Chief Judicial Magistrate Doda, which is violation as per SRO 171 of 2011 as well as the mandate of Section 18(a)(i) read with Section 27(c) of the Drugs and Cosmetic Act, 1940. 2. In this petition notice is yet to be issued. 3. Brief facts of the case are that on 15.06.2011, a sample of drug “Handloom Cloth Rolled Bandage” Batch no. 24, having manufacturing date August 2010 and expiry date 2014 manufactured by Sundaram Surgicals, Sankarapandian Puram, Chattrapatti, was lifted from the premises of respondent No. 1 for test and analysis from Government Analysis, CFDL, Jammu; after lifting sample portion of the said drug, it was forwarded to the office of Government Analyst in Form18 under Rule 57 of the Drugs and Cosmetics Rules, 1945 for testing and analysis under the provisions of Section 23 of the Drugs and Cosmetics Act 1940. It is further stated that on 26.09.2011, Government Analyst, CFDL, Jammu forwarded the certificate of test under Form 13 and declared the sample of the drug to be not of standard quality as defined in the Act with reason that the same fails in the tests, thread per dm, length/width. During investigation, petitioner issued a letter dated 12.10.2011 to respondent No. 1 and informed him that the drug lifted from his premises is sub-standard and further, directed him to furnish details of the firm from whom such product had been purchased and also requested him to furnish details of the stock of the product. The respondent No. 1 in his reply stated that the drug in question has been supplied and distributed to him by Neeru Pharmaceuticals, Vinayak Bazar, Jammu (respondent No. 2) and also submitted the invoices/bills for the same. The petitioner, thereafter communicated with other persons (i.e. Raj Pharmaceuticals Peer Mitha Bazar Jammu, Galaxy Surgicals, Delhi and Manufacturing Company) who also arrayed as accused in the complaint and during investigation respondent Nos.2 and 3 submitted details of the person along with invoices/bills from whom the drug was purchased. The petitioner, thereafter communicated with other persons (i.e. Raj Pharmaceuticals Peer Mitha Bazar Jammu, Galaxy Surgicals, Delhi and Manufacturing Company) who also arrayed as accused in the complaint and during investigation respondent Nos.2 and 3 submitted details of the person along with invoices/bills from whom the drug was purchased. It is further stated that notices were even issued to respondent No. 4 and it was informed of the report of Government Analyst but no reply was received and after completion of investigation and receipt of prosecution permission from the office of Controller Drugs and Food Control Organization J&K, petitioner filed a complaint before the Court of law against the respondents under the provisions of Drugs and Cosmetics Act, 1940. 4. The learned Additional Sessions Judge, Doda after going through the record, passed an order dated 27.12.2013 and transferred the complaint to CJM, Doda. 5. The petitioner being aggrieved by order dated 27.12.2013 passed by the Court of learned Additional Sessions Judge, Doda, has challenged the same inter-alia on the following grounds: (i) That the impugned order dated 27.12.2013 passed by the Court of learned Additional Sessions Judge, Doda is against the law and facts and circumstances of the case and hence, deserves to be set aside. (ii) That the order dated 27.12.2013 requires to be set aside on the ground that the court of learned Additional Sessions Judge, Doda while passing the order impugned, the court wrongly assumed that it lacks jurisdiction to try the case and the court of Chief Judicial Magistrate is competent to try the matter. Further it is submitted that the allegations in the title of the complaint against the respondents were under section 18(a)(1) read with section 27 (c) of the Drugs and Cosmetics Act, 1940. Section 27 (c) of the Act provides that any drug deemed to be spurious under Section 17-B, but of being a Drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not less than seven years but which may extend to imprisonment of life and with fine which shall not be three lakh rupees or three times the value of the Drugs confiscated, whichever is more). That during pendency of the matter before the court of learned Chief Judicial Magistrate, Doda, the petitioner have come across communications for the office of controller drug and food control organization by virtue of which it is crystal clear that the drug under subject is spurious and the court of learned Additional Sessions Judge, Doda have wrongly come to conclusion that the drug is not of standard quality and the offences alleged in the complaint are triable by the court of learned Chief Judicial Magistrate, Doda. (iii) That the order impugned is further bad on the ground that the court of learned Additional Sessions Judge, Doda wrongly came to the conclusion that the offences in the complaint only pertains to manufacturing, distribution and sale of not of standard quality drug and is not covered under the provisions of Section 27(c) of the Act. That during pendency of the matter, the petitioner has come across communications from the office of Drugs Control Department, Delhi by virtue of which petitioner has been informed that no firm under the name Galaxy Surgical, Bagirath Palace Chandni Chowk, Delhi exists and no licence has been granted to any such firm. Hence, the drug under subject is spurious and the court of learned Additional Sessions Judge, Doda has jurisdiction to try the complaint. (iv) That the order impugned is further bad on the ground that as per the provision of Section 36-AB to try offence relating to adulterated or spurious Drug. (v) That in view of the SRO 171 of 2011, it is clear that the court of learned Additional Sessions Judge, Doda has jurisdiction to try the offences alleged in the complaint and the order dated 27.12.2013 is bad and requires to be set aside. 6. I have considered the pleadings as no one has appeared for the petitioner. 7. From the perusal of complaint, it is evident that petitioner/complainant has sought penal action against respondents in terms of section 27(c) of Act. Section 27of Act reads as under:- “27. 6. I have considered the pleadings as no one has appeared for the petitioner. 7. From the perusal of complaint, it is evident that petitioner/complainant has sought penal action against respondents in terms of section 27(c) of Act. Section 27of Act reads as under:- “27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes:- (a) any drug deemed to be adulterated under section 17A or spurious under section [17B and which] when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be [punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more:] Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause: Provided further that where the use of the adulterated or spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realised from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulterated or spurious drugs referred to in this clause. Explanation - For the purposes of the second proviso, the expression "relative" means:- (i) spouse of the deceased person. (ii) a minor legitimate son, and unmarried legitimate daughter and a widowed mother. (iii) parent of the minor victim. Explanation - For the purposes of the second proviso, the expression "relative" means:- (i) spouse of the deceased person. (ii) a minor legitimate son, and unmarried legitimate daughter and a widowed mother. (iii) parent of the minor victim. (iv) if wholly dependent on the earnings of the deceased person at the time of his death, a son or a daughter who has attained the age of eighteen years. (v) any person, if wholly or in part, dependent on the earnings of the deceased person at the time of his death:- (a) the parent. (b) a minor brother or an unmarried sister. (c) a widowed daughter-in-law. (d) a widowed sister. (e) a minor child of a pre-deceased son. (f) a minor child of a pre-deceased daughter where no parent of the child is alive. (g) the paternal grandparent if no parent of the member is alive. (b) any drug - (i) deemed to be adulterated under section 17A, but not being a drug referred to in clause (a). (ii) without a valid licence as required under clause (c) of section 18, shall be punishable with imprisonment for a term which shall [not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more]: Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than three years and of fine of less than one lakh rupees]. (c) any drug deemed to be spurious under section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall [not less than seven years but which may extend to imprisonment for life and with fine which shall not be three lakh rupees or three times the value of the drugs confiscated, whichever is more]: Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than seven years but not less than three years and of fine of less than one lakh rupees]: (d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made there under, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years [and with fine which shall not be less than twenty thousand rupees]: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.” 8. It is apt to reproduce concluding paras of order of Court below as under:- “So far as the contravention relating to adulterated spurious drugs, when used by any person for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder and is likely to cause his death or is likely to cause such harm or his body as would amount to grievous hurt within the meaning of section 320 of Penal Code solely on account of such drug being adulterated or spurious or not of standard quality is concerned, it is dealt by section 27 clause (a) but other offences relating to adulterated or spurious drugs are not covered by clause (a) of section 27 and are dealt with by clause (b)(c) and (d) of the said section. Section 36-AB provides for the trial of offences relating to adulterated or spurious drugs mentioned in clause (a) and (c) of Section 27 of the said Act by a Special Court. Section 36-AB provides for the trial of offences relating to adulterated or spurious drugs mentioned in clause (a) and (c) of Section 27 of the said Act by a Special Court. It is admitted case of the prosecution that neither this complaint relates to the contravention of any adulterated drug nor to any spurious drug and as per the Government Analyst report, the drug in question has been found to be not of standard quality. Even it for the sake arguments, it is assumed that a drug not of standard quality is covered by clause (a) of section 27 of the above said Act but the other requirement of this section that it should have been used by any person for this purposes mentioned in the above said clause, is completely missing in the present case. Therefore, on that count as well a drug found not of standard quality without its further use cannot be covered by clause (a) of section 27 so as to make it exclusively triable by a Special Court. The two provisos attached to clause (a) of section 27 of the above said Act also make it abundantly clear that it is only the offences relating to adulterated or spurious drugs which on their use have either caused any harm to any person or have led to his death, are covered by clause (a) of section 27 of the said Act and the violation relating to drugs found not of standard quality in my opinion is dealt with by clause (d) of Section 27 of the above said Act. Therefore, this complaint is not maintainable before this court and is triable by the court of Ld. Chief Judicial Magistrate, Doda. This complaint is accordingly transferred from the file of this Court to the court of Ld. Chief Judicial Magistrate, Doda for disposal under law. The parties are directed to appear before the transferee court well in time. An index of this file be maintained and consigned to records.” 9. Chief Judicial Magistrate, Doda. This complaint is accordingly transferred from the file of this Court to the court of Ld. Chief Judicial Magistrate, Doda for disposal under law. The parties are directed to appear before the transferee court well in time. An index of this file be maintained and consigned to records.” 9. From bare perusal of this section, it is evident that for contravention of adulterated or spurious drug, when used by any persons for or in relation in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees. But for other offences relating to adulteration or spurious drugs which are not covered under the provision of 27 (a) of Act, these offences have to be dealt under 27 (b-d) of Act. 10. Section 36-AB of Act deals with trial of offences. It reads as under:- “36AB Special Courts:- (1) The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences relating to adulterated drugs or spurious drugs and punishable under clauses (a) and (b) of section 13, sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and clause (b) of sub-section (l) of section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Session as a Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification. Explanation - In this sub-section, “High Court” means the High Court of the State in which a Court of Session designated as Special Court was functioning immediately before such designation. Explanation - In this sub-section, “High Court” means the High Court of the State in which a Court of Session designated as Special Court was functioning immediately before such designation. (2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (l), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.” 11. As per this section, trial of violation of section 27 (a) and (c) are to be conducted under this provisions. In present case, although complaint is pertaining to contravention of adulterated or spurious drug, but it is not the case of complainant that the same was to be used for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder which is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code. In this way, offence committed by respondents was not punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and fine. This offence, if any, committed by respondents would definitely comes under provisions of section 27 (d) of Act, which may be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years. 12. Further, order impugned has been passed on 27.12.2013 and revision has been filed on 04.07.2015 after more than 18 months; no explanation has been given for delay in filing revision. 13. In view of what has been discussed above, there is no infirmity of law in the order of court below. This petition is dismissed.