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2024 DIGILAW 26 (HP)

Sunil Arora v. State of H. P.

2024-01-05

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. The Drug Inspector received a telephonic complaint regarding discolouration of the powder in the vials of Rabcer Injection on 29.5.2010. He visited the Firm M/s Anil Medicos, Naya Bazar, Nahan. Anil Gupta was present on the premises. The Drug Inspector inspected the injection and found discolouration in many vials. He also noticed that the same batch had different coloured drugs in different vials and the colour ranged from off-white/yellowish white to brown. He obtained the samples and directed the owner to withdraw the unsold product from the market immediately. The samples were sent to a Government Analyst and were found to be not of the standard quality. 2. A notice was served upon the accused No.1 Anil Gupta under Section 25 to adduce evidence to controvert the report but no option was exercised. Accused no. 1 submitted invoices issued by M/s Astron Life Sciences, Ludhiana. This Firm disclosed the name of M/s Vision Medilink Ahmadabad, who in turn disclosed the name of M/s Embark Life Sciences Pvt. Ltd., Rurki. The Drug Inspector presented the complaint against the accused for trial. The case was committed to the learned Sessions Judge, who framed the charge against the accused including the present petitioner for the commission of an offence punishable under Section 18(a)(i) of the Drugs and Cosmetics Act, 1940. 3. Aggrieved from the order, the present revision has been filed asserting that the maximum punishment provided for the commission of an offence punishable under Section 27(d) is two years. The offence was stated to have been committed on 29.5.2010 and three years are available under Section 468 of Cr.P.C. for filing the complaint. The complaint was filed beyond three years. Therefore, it was prayed that the present revision be accepted and the order passed by the learned Sessions Judge be set aside. 4. I have heard Mr. P.P. Chauhan, learned Counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for respondent-State. 5. Mr. P.P. Chauhan, learned Counsel for the petitioner submitted that the complaint was barred by limitation as it was filed beyond the period of three years from the date of the commission of the offence. A valuable right of the petitioner to get the sample reanalyzed was extinguished. Therefore, he prayed that the present complaint be quashed. 6. Mr. 5. Mr. P.P. Chauhan, learned Counsel for the petitioner submitted that the complaint was barred by limitation as it was filed beyond the period of three years from the date of the commission of the offence. A valuable right of the petitioner to get the sample reanalyzed was extinguished. Therefore, he prayed that the present complaint be quashed. 6. Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State submitted that the complaint was filed before the learned CJM on 23.5.2013. The involvement of the petitioner was discovered on 23.11.2010 when M/s Vision Medilink showed the documents regarding the production of the drug by M/s Embark Life Sciences Pvt. Ltd. A notice was served upon the manufacturer on 8.12.2010, vide which the report was sent to the Firm. It was directed to withdraw the produce from the market and avail an opportunity under Section 25 to adduce evidence within 28 days, however, no intention was notified and the plea that the shelf life of the sample had expired, is not available to the petitioner. Hence, he prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 8. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765 : (2023) 7 SCC 711 wherein it was observed at page 716:- 17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], this Court laid down the following guiding principles : (SCC pp. 482-84, para 27) “27. …27.1. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], this Court laid down the following guiding principles : (SCC pp. 482-84, para 27) “27. …27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise to and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge sheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.” 9. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:- 26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held: “102. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:- 26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” (emphasis supplied) 10. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence. It was observed: 10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going into detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”. 11. One other reason pointed out by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. 11. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed: 12. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. 11. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed: 12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [ (2019) 14 SCC 568 ], this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab ( AIR 1960 SC 866 ) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint. 12. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process or secure the ends of justice. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings. 13. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings. 13. Para-19 of the copy of the complaint shows that M/s Vision Medilink Ahmadabad replied on 23.11.2010 that the drugs were purchased by the Firm from M/s Embark Life Sciences Pvt. Ltd. which is a manufacturing company of the drug. Therefore, the involvement of the petitioner came to the notice for the first time on 23.11.2010. The period of limitation will start running from 23.11.2010. The complaint was filed on 23.5.2013 within three years from the date of the discovery of the involvement of the petitioner. Hence, the same is within limitation. 14. It was submitted that the charge was framed after three years and the complaint is liable to be quashed due to this reason alone. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721: 2013 SCC OnLine SC 1043 that the relevant date for computing the limitation is the date of filing of the complaint. It was observed: “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 Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39 which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] lays down the correct law. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121: 1990 SCC (Cri) 646] 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.” 15. In the present case, the complaint was filed within the period of limitation and the date of framing the charge is immaterial. 16. In the present case, the complaint was filed within the period of limitation and the date of framing the charge is immaterial. 16. It was submitted that the shelf life of the drugs had expired by the time the complaint was filed and a valuable right of the petitioner was lost. This submission is not acceptable. It was specifically stated in para-20 of the complaint that a notice was served upon M/s Embark Life Sciences on 8.12.2010 vide which the copy of the report on Form-13 along with one sealed portion was sent to the manufacturing firm. The company was directed to supply the required documents and was given an opportunity under Section 25 of the Act to adduce evidence in controversion of the report within 28 days. It is not mentioned that the Company had exercised any option within the prescribed period. It was laid down by the Hon’ble Supreme Court in Glaxo Smith Kline Pharmaceuticals Ltd. v. State of M.P., (2011) 13 SCC 72 : (2012) 1 SCC (Cri) 774: 2011 SCC OnLine SC 1007 that where the Company does not express any intention to adduce evidence to controvert the Analyst report within the statutory period of 28 days, the further delay in filing the complaint becomes immaterial. It was observed:- “8. However, the law permits the drug manufacturer to controvert the report expressing his intention to adduce evidence to controvert the report within the prescribed limitation of 28 days as provided under Section 25(3) of the 1940 Act. In the instant case, the report dated 27-8-1997 was received by the statutory authorities who sent the show-cause notice to the appellants on 29-9-1997 and the appellants replied to that notice on 3-11-1997. The case of the statutory authorities is that the option/willingness to adduce evidence to controvert the analyst's report was not filed within 28 days i.e. limitation prescribed for it. The appellants are the persons who knew the date on which the show-cause notice was received. For the reasons best known to them, they have not disclosed the said date. It is a Company which must be having Receipt and Issue Department and should have an office which may inform on what date it has received the notice, and thus, should have made the willingness to controvert the report. In fact, such an application had only been made on the technique adopted for analysis. It is a Company which must be having Receipt and Issue Department and should have an office which may inform on what date it has received the notice, and thus, should have made the willingness to controvert the report. In fact, such an application had only been made on the technique adopted for analysis. It has been the case that instead of testing the medicine under IP 1985, it could have been done under IP 1996 because IP 1996 had come into force prior to the date of taking the sample on 9-12-1996. 9. In view of the fact that the appellants did not express an intention to adduce evidence to controvert the analyst report within the statutory limitation period of 28 days, further delay in filing the complaint becomes immaterial. Even otherwise, the expiry date of the medicine was March 1998 i.e. only after 4 months of submission of the reply by the appellants, and they did not fulfil their burden of expressing an intention to adduce evidence in contravention of the report. Therefore, they cannot raise the grievance that the complaint had been lodged at a much belated stage. So far as the application of IP 1985 or IP 1996 is concerned, such an issue can be agitated at the time of trial. 10. The judgment in Medicamen Biotech Ltd. v. Drug Inspector [ (2008) 7 SCC 196 : (2008) 3 SCC (Cri) 20] was heavily relied on by Shri R. Ramachandran, learned Senior Counsel appearing for the appellants. Nevertheless, the facts of the said case are quite distinguishable. In that case, the complaint had been filed about a month short of the expiry date, and the accused therein had expressed their option to lead evidence in contravention of the analyst's report within the limitation time but were not able to do so as shortly thereafter the medicine expired. 11. We agree with Ms Makhija that the case is squarely covered by the judgment of this Court in State of Haryana v. Brij Lal Mittal [ (1998) 5 SCC 343 : 1998 SCC (Cri) 1315] wherein this Court has held as under : (SCC p. 346, para 5) “5. 11. We agree with Ms Makhija that the case is squarely covered by the judgment of this Court in State of Haryana v. Brij Lal Mittal [ (1998) 5 SCC 343 : 1998 SCC (Cri) 1315] wherein this Court has held as under : (SCC p. 346, para 5) “5. … Sub-section (4) also makes it abundantly clear that the right to get the sample tested by the Central Government laboratory (so as to make its report override the report of the analyst) through the court accrues to a person accused in the case only if he had earlier notified in accordance with sub-section (3) his intention of adducing evidence in controversion of the report of the government analyst. To put it differently, unless the requirement of sub-section (3) is complied with by the person concerned he cannot avail of his right under sub-section (4).” In the said case, like the present case, the manufacturer did not notify the Inspector within the prescribed period that he intended to adduce evidence in contravention of the report. Also, akin to the case at hand, the manufacturer's right under sub-section (3) of Section 25 expired a few months before the expiry of shelf life. Holding for the Directors of the manufacturing company on different grounds, the Court opined that the right to get the drugs tested by the Central Drugs Laboratory does not arise unless the requirement of sub-section (3) is complied with. 12. It is pertinent to mention herein that the present appellants had earlier also been informed by the Drug Inspectors of various cities on many occasions that the aforesaid medicine i.e. Betnesol tablet, was not of standard quality and the authorities had been making an attempt to initiate proceedings against them as is evident from the pleadings taken by the appellants themselves and the letter dated 1-7-1996 (Annexure P-9) wherein the appellant-Company wrote a letter to the Controller, Food and Drug Administration, Madhya Pradesh. The relevant part thereof reads as under: “During the past one month, we have received requests from the Drug Inspectors of Dhar, Rewa, Seoni and Ambikapur all under your kind control, to provide a memorandum of articles of association, constitution, etc. of our Company to initiate action for manufacturing Betnesol tablets Batch No. NA 660, Mfd. December 1992, Expiry May 1994; NB 290, Mfd. November 1994, Expiry April 1996; NB 538, Mfd. of our Company to initiate action for manufacturing Betnesol tablets Batch No. NA 660, Mfd. December 1992, Expiry May 1994; NB 290, Mfd. November 1994, Expiry April 1996; NB 538, Mfd. May 1995, Expiry December 1996 and NB 656, Mfd. September 1995, Expiry February 1997, which were earlier declared as not of standard quality by the Government Analyst, Bhopal for facing analytical difficulties during the determination of uniformity of content by IP 1985 method.” (emphasis added) 13. In that letter also the appellant-Company does not make its intention clear to adduce any evidence to controvert the government analyst's report, rather made the following request: “Under these circumstances, we respectfully reiterate that our product Betnesol tablets referred to above are of standard quality and request you to kindly treat all the matters as closed.” 14. As explained hereinabove, the appellants and other co-accused did not give any option to adduce evidence in contravention of the analyst's report within the statutory limitation period. Even if there was an inordinate delay in launching the criminal prosecution or filing the complaint, it is thereby of no consequence. We do not find any ground to interfere with the well-reasoned judgment of the High Court. The appeal lacks merit and is, accordingly, dismissed.” 17. In the present case, the Company had not expressed any intention to controvert the report within 28 days provided to it. Therefore, the plea that the shelf life of the drug had expired by the time the complaint was filed is not available to it and the delay in filing the complaint will not be fatal to the prosecution. 18. No other point was urged. 19. In view of the above, the present petition fails and the same is dismissed. 20. The parties through their respective counsel are directed to appear before the learned Trial Court on 28.02.2024. 21. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.