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2025 DIGILAW 1526 (GAU)

Bharat Parenterals Limited v. Union of India

2025-09-05

PARTHIVJYOTI SAIKIA

body2025
JUDGMENT : PARTHIVJYOTI SAIKIA, J. 1. Heard Mr. Samir Mehta, the learned counsel appearing for the petitioners. Also heard Mr. K.K. Parasar, the learned counsel representing the respondent Union of India. 2. This is an application under Section 482 of the CRIMINAL PROCEDURE CODE praying for quashing and setting aside the proceeding of C.R. Case No.5710/2022 and the order issuing processes dated 13.09.2022 and 30.06.2023 passed by the learned Judicial Magistrate 1st Class No.4, Kamrup(M), Guwahati. 3. The Union of India represented by Drugs Inspector lodged a complaint against 11 persons alleging commission of offence under Section 27 (d) of the Drugs and Cosmetics Act, 1940. 4. The said 11 persons were Shri Shah Hemang Jayendra of M/s. Bharat Parenterals Ltd.; Rameshbhai Himmatlal Desai of M/s. Bharat Parenterals Ltd.; Bharatbhai Rameshbhai Desai of M/s. Bharat Parenterals Ltd.; Rameshchandra Desai of M/s. Bharat Parenterals Ltd.; Smti. Indiraben Desai of M/s. Bharat Parenterals Ltd.; Smti. Lataben Parikh of M/s. Bharat Parenterals Ltd.; Smti. Kashmiraben Saileshchandra Desai of M/s. Bharat Parenterals Ltd.; Shri Mahesh Poonjalal Shah of M/s. Bharat Parenterals Ltd.; Mrs. Himaben Bharatbhai Desai of M/s. Bharat Parenterals Ltd.; Shri Bhupendra M. Patel of M/s. Bharat Parenterals Ltd. and Mr. Vishal G. Patel of M/s. Bharat Parenterals Ltd. 5. In the complaint petition, M/s. Bharat Parenterals Ltd. was not made a party. This company produced Folic Acid Tablets I.P. 5mg. at Vadodara, Gujarat. The complainant tested the samples of that tablet because the said tablets were Drugs according to Section 3 (b) of the Drugs and Cosmetics Act, 1940. One portion of the said drug was sent to Regional Drug Testing Laboratory at Guwahati. The said Laboratory certified that the said drug was not of standard quality. Narrating the aforesaid facts, the complaint petition was filed. 6. Though, initially, M/s. Bharat Parenterals Ltd. was not made a party, on 13.09.2022, the learned Judicial Magistrate 1st Class took cognizance of the offence under Section 27 (d) of the Drugs and Cosmetics Act, 1940 against those 11 persons. The examination of the complainant under Section 200 was dispensed with as the complainant was a public servant and the complaint was filed in discharge of his public service. The court directed issue of summonses to the aforesaid 11 number of persons. 7. The examination of the complainant under Section 200 was dispensed with as the complainant was a public servant and the complaint was filed in discharge of his public service. The court directed issue of summonses to the aforesaid 11 number of persons. 7. Subsequently, M/s. Bharat Parenterals Ltd. was added a party in the complaint petition and this time on 30.06.2023, the court passed the following order: “ 30.06.2023 . The complainant has filed the amended complaint wherein the principal accused company namely, M/S. Bharat Parenterals Ltd. has also been included as one of the accused and cognizance is accordingly taken for offence u/s 27(b) of Drugs and Cosmetics Act, 1940. Issue summons to all the 12 accused. Complainant is to take necessary steps. Fixing 09.10.2023 for appearance/report.” 8. Deliberating upon Section 204 of the Code of Criminal Procedure, Mr. Mehta has submitted that the order of issuance of process is not an empty formality. Mr. Mehta further submitted that the Magistrate requires to apply his mind as to whether sufficient ground for proceeding exists in the case or not. According to Mr. Mehta, the formation of such an opinion is required to be stated in the order itself. The learned counsel Mr. Mehta continued his submission by stating that an order of the Magistrate is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. In order to buttress his point, Mr. Mehta has relied upon a decision of the Hon’ble Supreme Court that was delivered in Lalankumar Singh v. State of Maharashtra , 2022 SCC OnLine SC 1383. 9. Per contra, Mr. Parasar has submitted that the order taking cognizance of an offence need not contain detailed reasons. 10. I have heard the submissions of the learned counsel of both sides. 11. In Sunil Bharti Mittal v. CBI , (2015) 4 SCC 609 , the Hon’ble Supreme Court has held as under: “51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.” 12. I have decided to agree with Mr. Mehta that before taking cognizance of an offence and before issuing processes, the court has to form an opinion that there were sufficient grounds for proceeding. I agree that order of issuing process is not an empty formality and the Magistrate has to apply his mind as to whether there are sufficient grounds for proceeding exists in the case. The formation of such an opinion is required to be stated in the order itself. An order taking cognizance is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. It is true that the order need not contain detailed reasons but there must be a definite opinion to be formed by the Magistrate [(see Lalankumar Singh (supra)]. 13. The Hon’ble Supreme Court in State (NCT of Delhi) v. Rajiv Khurana, (2010) 11 SCC 469 , has held as under: “ 17. The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of the company's business. Every Director need not be and is not in charge of the business of the company. If that is the position with regard to a Director, it is needless to emphasise that in the case of non-Director officers, it is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable.” 14. If that is the position with regard to a Director, it is needless to emphasise that in the case of non-Director officers, it is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable.” 14. In the case in hand, the complaint petition has nothing against any of the aforementioned persons. There is nothing in the complaint petition about their role in the company M/s. Bharat Parenterals Ltd. To fasten, vicarious liability on a person the law is well settled that the complainant should specifically show as to how and in what manner the accused was responsible. Simply because a person is a Director of a Defaulter Company does not make him liable. Only the person who was at the helm of affairs of the Company and in-charge of it is responsible for the conduct of the business at the time of commission of an offence will be liable for criminal action. 15. The impugned orders taking cognizance do not reflect the reasons for which cognizance was taken against all the accused persons. Now, it is clear that the learned Magistrate has taken cognizance against M/s. Bharat Parenterals Ltd. and 11 other persons without applying judicial mind. The orders by which cognizance was taken are devoid of any reasons for which cognizance was taken and process was issued. Both the orders dated 13.09.2022 and 30.06.2023 clearly show that no opinion was drawn by the Magistrate before issuing process. Therefore, both the impugned orders taking cognizance and issuing process are bad in law for non-application of judicial mind. 16. For the aforesaid reasons, the orders dated 13.09.2022 and 30.06.2023 passed st by the learned Judicial Magistrate 1 Class, Kamrup (M), Guwahati in C.R. Case No.5710/2022 are set aside. The criminal petition is allowed accordingly and finally disposed of.