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2023 DIGILAW 334 (UTT)

Gopal Munjal v. State of Uttarakhand

2023-05-23

SHARAD KUMAR SHARMA

body2023
JUDGMENT : Sharad Kumar Sharma, J. The summarised facts of the case are, that a Criminal Case No. 362 of 2015, Drug Inspector Vs. Gopal Munjal and others, was registered as against the accused persons for their alleged engagement in commission of offence under Sections 17 (c), 18 (a) (i) to be read with Section 27 (D) of Drugs and Cosmetics Act, 1940, as it stood instituted before the Court of Chief Judicial Magistrate, Bageshwar. 2. The prayer, as sought for in the present C-482 Application, is for quashing the order date 04.05.2023, as it has been passed by the Court of District & Sessions Judge, Bageshwar, whereby the Court of Sessions Judge, dismissed the Criminal Revision preferred by the applicant and directed the applicant to appear before the Court of Chief Judicial Magistrate to take an appropriate defence in Criminal Case No. 362 of 2015, for the aforesaid offences. 3. The brief facts of the case are required to be dealt with, which are as under : 1. On 24th January, 2012, the samples were collected from M/s Manoj Medical Store, a chemist retail outlet at Bageshwar, and it was the sample of Cozy Plus, which were collected in the presence of the proprietor of the firm. 2. After collection of the samples, the same were sent to the Government Laboratory on 24th January, 2012, for its testing. The said sample was received by the Government Laboratory on 2nd February, 2012. The Government Laboratory has sent a report being Report No. 320 under Form-13 with a certificate No. D/297 on 06.06.2012. 3. In the report thus submitted on 06.06.2012, it was found, that the samples thus collected on 24.01.2012, and as per the report submitted by the State Laboratory on 06.06.2012, the samples were not satisfying the norms, and the samples thus collected were not found to be of the standard quality. It was observed that the samples of Cozy Plus thus collected from the proprietorship firm did not confirm with the specification and the integration of salts, as it was required by the standard fixed. 4. The learned counsel for the applicant had argued the matter from the context of the provisions contained under Section 468 of the Cr. P.C., for the purposes of creating a bar from taking cognizance, after a lapse of period of limitation. 4. The learned counsel for the applicant had argued the matter from the context of the provisions contained under Section 468 of the Cr. P.C., for the purposes of creating a bar from taking cognizance, after a lapse of period of limitation. A reasonable construction has had to be drawn from the provisions contained under Section 468 of the Cr.P.C., as to how the period of limitation has to be construed depending upon the nature of offence, which is being sought to be tried and that too particularly, in relation to the offence under a special statute. 5. For the purposes, to later on deal with the argument in relation to the effect of Section 468 of the Cr.P.C., some dates would be necessary. i. The samples were collected from M/s Manoj Medical Store, Kapkote, District Bageshwar, on 24th January, 2012. The samples thus collected were, since in the presence of the proprietor of the firm, thus the knowledge of the act of collection of samples, were attributed therein itself. ii. The samples thus collected, since they were principally being supplied by M/s Abhishek Enterprises, Haldwani to M/s Manoj Medical Store, Kapkote, Bageshwar, the distributor/supplier of M/s Manoj Medical Store, Kapkote, Bagshwar, was also noticed on 1st August, 2012, after the State Laboratory report dated 06.06.2012. iii. It is after the notice being issued to the distributor, show cause notices were also issued to M/s Ind Swift Ltd., Rajendra Nagar, Kalagarh Road, on 16th August, 2012, 11th September, 2012 and 26th September, 2012. Since M/s Ind Swift Ltd., was the bulk supplier to the principal supplier i.e. M/s Abhishek Enterprises, who had its Central Warehouse in Punjab, a show cause notice was issued to M/s Ind Swift Ltd. on 5th October, 2012. In turn thereto, after the issuance of the notice to M/s Ind Swift Ltd., and the information was also sent to the principal producer, i.e. M/s Ind. Swift Ltd. Solan, Himanchal Pradesh, on 19th November, 2012 and Form-13 dated 17th December, 2012 was served upon the principal producer of the medicine, cozy plus. 6. In turn thereto, after the issuance of the notice to M/s Ind Swift Ltd., and the information was also sent to the principal producer, i.e. M/s Ind. Swift Ltd. Solan, Himanchal Pradesh, on 19th November, 2012 and Form-13 dated 17th December, 2012 was served upon the principal producer of the medicine, cozy plus. 6. The present applicant since was not satisfied with the State Government Laboratory test report, as it was concluded on 6th June, 2012, and as such, they have prayed for, that the samples thus collected on 24th January, 2012, and tested by the State Laboratory on 6th June, 2012, that may also be sent for a test to the Central Laboratory, Calcutta. 7. The samples thus collected were sent on the request of the present applicant for being tested by the Central Drugs Laboratory, Calcutta, the samples were sent accordingly to the Central Laboratory by the Communication Letter no.NIL dated 08.02.2013, as it finds reference to in the Report No.21-5/2013-SS/CC(M)-258/827 dated 19.02.2014, and as per the report itself, the test of the sample was conducted by the Central Laboratory from “7th August, 2013 to 20th November, 2013.” After completion of the test conducted by the Central Laboratory to the Government of India, a report of the test was sent on 19.02.2014. 8. It is from this stage, that the actual controversy has been coloured to have developed to be agitated in this C-482 Application from the following perspectives :- (1) That as to whether the report submitted by the Central Laboratory on 19.02.2014, could at all be justified to be a valid report to be read in evidence particularly when, the sample which was thus collected on 24.01.2012, it was bearing an expiry date of November, 2013 ? (2) What effect would the report have, if the sample which were sent, it was having an expiry date of 2013 is required to be answered forthwith at this stage only. 9. We should not be oblivious of the fact, that the first laboratory report by the State Government was submitted on 06.06.2012 i.e. much before the expiry date of samples, which were collected by the Drugs Controller. 10. 9. We should not be oblivious of the fact, that the first laboratory report by the State Government was submitted on 06.06.2012 i.e. much before the expiry date of samples, which were collected by the Drugs Controller. 10. Thus, the report dated 06.06.2012, cannot be excluded to be read in evidence, along with the report of 19.02.2014 submitted by the Central Laboratory, particularly when, there happens to be no massive contradiction with regard to the observations which had been made in the two reports by the Sample Analyst both of the State and Central Government, about the salt combination and specification of the quality of the medicine sent for its test. 11. There is second reason for not to accept the argument of the learned counsel for the applicant in relation to the effect of date of expiry of the medicine of November, 2013 for the reason being, that the report of the Central Laboratory itself as submitted on 19.02.2014, observes, that the test was conducted between 7th August, 2013 to 20th November, 2013, obviously, it corresponds to the date prior to the date of the expiry, as given on the samples of medicine, and once the medicine itself contains the date of expiry to be November, 2013, at the most, it could be read with effect from 30th November, 2013, and it will not apply to the period during the period, for which, the sample was tested for its examination by the Central Laboratory. 12. Hence, this argument of the learned counsel for the applicant pertaining to the effect of expiry of the date of sample of medicine on the date of the report submitted by the Central Laboratory on 19.02.2014, it would practically have no bearing, because the test itself was conducted even much prior to the expiry of the date, as given on the medicine i.e. November, 2013, which would be deemed to be 30th November, 2013, and not the date prior to the test when it was conducted even by the Central Laboratory. 13. The second question, which has been argued by the learned counsel for the applicant was, that in accordance with Rule 6 of the Drugs Rules, 1945, the report was required to be sent forthwith for its examination. The report herein contextually would be that of 19.02.2014. 13. The second question, which has been argued by the learned counsel for the applicant was, that in accordance with Rule 6 of the Drugs Rules, 1945, the report was required to be sent forthwith for its examination. The report herein contextually would be that of 19.02.2014. It was sent to the Court of Chief Judicial Magistrate, Bageshwar, for his assistance to decide the case and sending of the report on 19.02.2014, its content cannot be read in exclusion pertaining to the test conducted for the period from 07.08.2013 to 20.11.2013. Rule 6 of the Rules framed under the Act, is extracted hereunder:- “6. Report of result of test or analysis- After test or analysis the result of the test or analysis, together with full protocols of the tests applied, shall be supplied forthwith to the sender in Form 2.” 14. The provisions of Rule 6, prescribes that after the test or analysis, the result of the test or analyses as summarized in the report together with full protocol of the test shall be supplied forthwith to the sender in Form-2. On reading of Rule 6 of the Rules, it does not anywhere contemplate, that the terms used forthwith, herein, would relate to that the content of the report itself as it was sent on 09.02.2014, in the instant case will result into making the report as to be not readable in evidence. Sending of a report as per Rule-6 in Form-2, it only contemplates that the prosecution proceedings, which are being carried, the analysis report has to be sent forthwith so that the report which is thus placed before the Competent Court could be read in evidence at the earliest possible for the purposes of deciding the matter. 15. Learned counsel for the applicant, while referring to Rule 6 and pertaining to the delayed submission of the report on 14.02.2014, this case would have a peculiar bearing in itself for the reason being, that the report of 09.02.2014, as per the opinion of this Court, it cannot be read by excluding the report of the State Laboratory to be that of 06.06.2012, as submitted by the State Laboratory. Particularly when, there does not happen to be any contradiction, as such with regard to the test of the samples conducted and the result of the test. Particularly when, there does not happen to be any contradiction, as such with regard to the test of the samples conducted and the result of the test. Thus the report dated 09.02.2014 of the Central Laboratory is in support and in addition to the report dated 06.06.2012 of the State Laboratory, as such, the implication of the Rule 6, as it has been attempted to be argued by the learned counsel for the applicant would not apply. 16. Learned counsel for the applicant has argued, that if the analyst report is sent at a belated stage, and it is in contravention to the provisions contained under Rule 6 of the Rules of 1945, that cannot be read in evidence by the prosecution, and in support thereto, he has made reference to a judgment rendered by the High Court of Gujarat at Ahmedabad in Criminal Appeal No.1058 of 1990, State of Gujarat vs. Sasuddin Valibhai Nr. Market Surendranagar. 17. The principle laid down therein, as to whether the report which has been submitted thereof allegedly in contravention to Rule 6 of 1945 Rules, apparently whether it happens to be in violation of Rule 6, or it could at all be read in evidence or not, would be exclusively a question to be considered at the stage when the trial is being conducted, which was the stage of the case before the High Court of Gujarat, where the said aspect came up for consideration in an Appeal preferred by the State against the judgment of acquittal. 18. This case would not be standing on a common pedestal as that contemplated in the ratio laid down by the judgment of Gujrat High Court. Hence, that cannot be of much credence so far as the present case is concerned. 19. Lastly, it has been argued by the learned counsel for the applicant, that the entire prosecution as drawn against the present applicant, would be barred by the provisions contained under Section 468 of the Cr.P.C. is extracted hereunder:- “468. Bar of taking cognizance after lapse of period of limitation - (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. Bar of taking cognizance after lapse of period of limitation - (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.” 20. The bar of taking cognizance after the lapse of limitation as provided under Section 468 of the Cr.P.C. is not absolute in its term, and the reason being, that under Sub Section (1) of Section 468 of the Cr.P.C., where bar of limitation is created from taking cognizance, it is in relation to the exception to the cases, where the offences carry a sentence which has been described under Sub Section (2). At least before this Court could be argued, that it falls under Sub Clause (c) of Sub Section (2) of Section 468 of the Cr.P.C, which provides for that those offences which carry a sentence is for a maximum period of three years is punishable for imprisonment for a maximum term of one year but not exceeding three years. The bar of Section 468 of the Cr.P.C. will come into play. 21. There are two answers to it. Firstly, the provisions contained under Section 468 of the Cr.P.C. will not be directly applicable in the instant case because the restriction imposed for taking cognizance in relation to those offences which carry a maximum sentence of three years. But the provisions contained under Section 468 cannot be read in exception to Sub Section (3) as inserted by Act No.45 of 1978, which is extracted hereunder:- “(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.” 22. The provisions contained under Sub-section (3) of Section 468 of the Cr.P.C. carves out an exception, that the period of limitation in relation to the offences, which may be tried together, shall be determined in reference to the offences, which are punishable with more severe punishment as the case may be, and here the exception to a severe punishment will exclude the Sub Clause (c) of Sub Section (2) of Section 468 of the Cr.P.C., because in the instant case particularly when in the light of the provisions contained under Section 27 (b) of the Act, which contains a penal provision. It provides for in its Sub Clause (ii) of Clause (b) of Section 27, which was yet again by way of a substitution by Act No.26 of 2008, which has provided therein that the sentence could not be less than three years, but which may extend to five years. Meaning thereby, by Section 27 (b) (ii), the minimum prescribed punishment is 3 years, which can be extended to five years depending upon the facts of each case, and gravity of offence involved. 23. At this stage, the learned counsel for the applicant draws the clarification contending thereof, that the offence for which he has been prosecuted under the Drugs and Cosmetics Act, will attract Sub Clause (d) of Section 27 for the imposition of the punishment, and for that purposes, he contends that since the prescribed period of punishment is one year, which could be extended to maximum extended period of two year, hence, that would be falling under exception Clause (ii) to Sub Clause (c) of Section 468 of the Cr.P.C. 24. The question of limitation, as it has been attempted to be argued by the learned counsel for the applicant, in the context of an interplay of the provisions contained under Sub Section (3) of Section 468 of the Cr.P.C., the provisions contained under Sub Section (d) of Section 27 of the Drugs and Cosmetic Act, which deals with the penal provision, would be an aspect which has to be determined by the learned Trial Court, when it comes to a conclusion as to the nature of the offence which is committed by the present applicant whether based on appreciation of evidence, whether it entails a punishment to be under Sub Section (3) of Section 468 of the Cr.P.C., which has been argued by the learned counsel for the applicant. 25. This observation made by this Court may not be construed to be in exclusion to the amendment made by virtue of substitution by Act No.26 of 2018, under Sub Section (d) of Section 27 of the Drugs and Cosmetic Act. 26. Hence, this scope of, as to what would be the quantum of sentence to be imposed, is a question to be addressed upon before the Trial Court, when the Court decides the question of admissibility of the report, which the learned counsel for the applicant has attempted to that the said report cannot be read in evidence because having been submitted beyond the prescribed period of limitation, because as already observed, that the report of 19.02.2014 would not be read in isolation to the report of the State Laboratory dated 6.6.2012. 27. Lastly, it has been argued by the learned counsel for the applicant, that in view of the provision contained under Section 34 of the Drugs and Cosmetic Act, the present applicant, who is only a Director of the Company cannot be harnessed with the liability individually for the alleged offence for which the prosecution has been drawn by way of Criminal Case No.362 of 2015. 28. In order to answer the aforesaid question raised by the learned counsel for the applicant, reference to Section 34 of the Act, itself becomes necessary, which is extracted hereunder:- “34. 28. In order to answer the aforesaid question raised by the learned counsel for the applicant, reference to Section 34 of the Act, itself becomes necessary, which is extracted hereunder:- “34. Offences by companies.—(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purposes of this section— (a) “company” means a body corporate, and includes a firm or other association of individuals; and (b) “director” in relation to a firm means a partner in the firm.” 29. On a simplicitor language used under Section 34 of the Act, it provides that if an offence is committed by the Company, it contemplates that every person who at the relevant point of time, when the offence was committed and was in charge and was responsible to the affairs of the Company for the conduct of the business of the Company, as well as the Company itself shall be deemed to be guilty of the offence, and will be liable to be proceeded with as per the provisions contained under Drugs and Cosmetic Act to be read in harmony with the provision contained under the Cr.P.C. 30. The present applicant does not deny his status of being the Managing Director of the Company against whom the prosecution has been drawn under the Drugs and Cosmetic Act, 1940. If he admits his status as that of being a Managing Director of the erring company, he would be falling well within the domain of Section 34, to be prosecuted for the offence, because he would be a person responsible for the affairs of the Company and will be responsible too for commission of offence as it has been complained of to be tried in the Criminal Case No.362 of 2015. 31. The learned counsel for the applicant while referring to the implications of Section 34, has attempted to carve out an exception by drawing the attention of this Court to the proviso of Section 34 of the Drugs and Cosmetic Act. The only exemption of the prosecution to the officers of the Company under the proviso, would be who were related to the affairs of it and are pre-exempted to be prosecuted subject to the condition, that they were not having any knowledge of the prosecution or despite of due diligence, the officer concerned as contained under Sub Section (1) of Section 34 was not having knowledge of the commission of an offence. 32. In order to answer the said argument pertaining to the knowledge and to exclude the prosecution of the present applicant, who claims and has proved himself to be Managing Director of the Company, the answer could be very short on the basis of the reason already assigned above, particularly the list of show cause notices issued by the Competent Authority, right from its proprietorship firm till it was issued to the present applicant and issuance of the show cause notice, itself is not a fact denied in the C482 Application which in itself would attribute knowledge to the applicant and thus he cannot claim the benefit of exemption provided under Section 34 of the Act. 33. 33. For the aforesaid reason, the C482 Application is dismissed, but all these observations, which have been made by this Court, was only for the purposes to answer the arguments which were extended by the Senior Counsel for the applicant, that may not be construed as to be any positive observation made by the Court as the prosecution of Criminal Case No.362 of 2015, has to be independently decided by the Court of Chief Judicial Magistrate, Bageshwar, upon determination of evidence without being influenced by any observation made above. 34. Subject to the aforesaid exception, the C-482 application stands rejected.