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2023 DIGILAW 23 (ALL)

Unique Medicare Products v. State of U. P.

2023-01-03

RAJEEV MISRA

body2023
JUDGMENT Rajeev Misra, J. Heard Mr. Gaurav Gupta, the learned counsel for applicants and the learned A.G.A. for State. 2. This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 06.09.2021 passed by Special Judge, Drug and Cosmetic Act/Additional Sessions Judge, Court No.2, District-Jhansi in Special Sessions Trial No. 359 of 2021 (State of U.P. through Drug Inspector v. M/s Unique Medicare and another) under Section 17-B read with Section 18 (a) (i), 18 (c), 27(b), 27 (c) and 27 (d) of Drug and Cosmetic Act, 1940 in front of D-36 Site-C UP SID Industrial Area Road, Sikandra, District-Jhansi as well as the entire proceedings of aforementioned Special Sessions Trial now pending in the Court of Special Judge, Drugs and Cosmetic Act/Additional Sessions Judge, Court No.2, District-Jhansi 3. Perused the record. 4. Learned counsel for applicants in support of present application submits that impugned summoning order passed by court below is manifestly illegal and arbitrary. Elaborating his submission, learned counsel for applicant submits that court below has not recorded any reason in the impugned summoning order. It is then contended by learned counsel for applicant that since no reason has been assigned by court below in the impugned summoning order, therefore, same is illegal, arbitrary and therefore, unsustainable in law and fact. It is next contended that no samples were taken from the Firm of applicant in the presence of applicant, which were sent for chemical examination. As per report of chemical analyst, two test are required to be performed to verify the disputed product taken from the firm of the agent of applicant. However, one of test could not be performed by the chemical analyst on account of lack of facilities in the laboratory. It is then contended that since the Chemical examination of the disputed product is itself incomplete, therefore, no inference can be drawn on the basis of aforesaid report submitted by the chemical analyst nor criminal prosecution can be launched against applicant on the basis of same. On the aforesaid premise, learned counsel for applicant submits that impugned summoning order cannot be sustained and therefore, same is liable to be quahsed by this Court. 5. Per contra, the learned A.G.A. has opposed the present application. On the aforesaid premise, learned counsel for applicant submits that impugned summoning order cannot be sustained and therefore, same is liable to be quahsed by this Court. 5. Per contra, the learned A.G.A. has opposed the present application. He submits that issue with regard to the nature of summoning order to be passed in a complaint case now stands settled by the judgement of Apex Court in Nupur Talwar v. Central Bureau of Investigation and Another, (2012) 11 SCC 465 . He has relied upon paragraph 37 of the report, which is reproduced herein-under:- " 37. The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in Cahndra Deo v. Prokash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430 , wherein it was observed as under "(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under Section 202 has been considered. Amongst those decisions are : Parmanand Brahmachari v. Emperor, AIR 1930 Patna 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Patna 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Patna 125; Emperor v. J.A. Finan, AIR 1931 Bombay 524 and Baidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant." 6. On the basis of above learned A.G.A. submits that no illegality can be attached to the summoning order passed by court below. 7. Learned A.G.A. next submits that it is an admitted case of applicants that bulk purchase of disputed product was made by applicants and the same was bottled in the firm of applicants. With regard to the report of chemical analyst, the learned A.G.A. submits that Government Analyst has recorded a categorical finding that the disputed product was spurious in nature inasmuch as the chemical propenol was not found in the same. It is not the case of applicant that without conducting the test no.1, test no.2 could not have been conducted. In view of above, report of chemical analyst is legal and cannot be disputed. On the aforesaid premise, learned A.G.A. submits that no interference is warranted by this Court. 8. When confronted with above, the learned counsel for applicants could not overcome the same. 9. Having heard the learned counsel for the applicants, learned A.G.A. for the State and upon perusal of the material brought on record, this court does not find that any question of law involved in present application necessitating interference by this Court in exercise of jurisdiction under Section 482 Cr.P.C. 10. Resultantly, present application fails and is liable to be dismissed. 11. It is accordingly dismissed.