HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. 561-A Cr P C No. 44 OF 2003 Vijay Chowdhary & anr. Petitioners State and Ors. Respondent !Mr. B. B. Kotwal, Advocate ^None MR. JUSTICE J.P.SINGH, JUDGE. Date: 23/04/2009 :J U D G M E N T :
A sample of tablet Serase-5, batch No. TS-103,
manufactured by M/S QP Pharmachemb Pvt. Ltd,
Derra Bassi (Punjab), bearing manufacturing date
6/99 and expiry date 5/2002, lifted by Mr. Parvez
Ahmed Bhat, Drugs Inspector (HQ) from the
premises of M/S New Suraj Transport Agency
Srinagar, from the consignment of M/S Wani
Traders, Pharmaceutical Distributors, Gaw Kadal,
Srinagar, on its analysis, by the Central Indian
Pharmacopoeia Laboratory Gaziabad, was found to
be spurious in terms of its Report No. CIPL/6031/38
dated 14.01.2002.
State through its Drugs Inspector (HQ)
Srinagar, filed a complaint in this regard, before
learned Judicial Magistrate First Class (Sub
Registrar) Srinagar, who on finding a prima facie
case for commission of the offence punishable under
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Section 27(c) of the Drugs and Cosmetics Act,
issued Process against the functionaries of M/S QP
Pharmachemb Pvt. Ltd, Derra Bassi (Punjab).
Vijay Choudhary and Anil Berry, the Director
and the Managing Director of M/S QP Pharmachemb
Pvt. Ltd, Derra Bassi (Punjab), have approached this
Court seeking quashing of the proceedings, or in the
alternative, the transfer of the complaint for its trial
by any Court of competent jurisdiction at Jammu.
Petitioners’ learned counsel referred to the
provisions of Section 33-G(4) of the Act to urge that
in the absence of any notification by the
Government, learned Magistrate’s order, taking
cognizance of the offence punishable under Section
27(c) of the Drugs and Cosmetics Act, 1940, was
unwarranted and without jurisdiction. He next
contended that the company had not been provided
information about the seizure of the Drug
manufactured by it and had thus been deprived of its
right to get the sample re-examined by the Central
Drugs Laboratory. Pleading violation of the
provisions of Section 23(4) of the Act, learned
counsel submitted that the proceedings initiated
against the petitioners need to be quashed.
Yet another point urged by the learned counsel
is, that in the absence of any allegation in the
complaint, that the petitioners were in-charge of the
Company at the time when the alleged offence was
committed, and were responsible to the Company for
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the alleged offence, initiation of process against the
petitioners was unwarranted.
Supporting petitioners’ alternative plea for
transfer of the complaint, learned counsel submitted
that it would be highly inconvenient and
cumbersome for the petitioners to spend four/five
days, on each and every date of hearing, to attend
the Court at Srinagar, from their present location at
Chandigarh, and in these circumstances, fair trial of
the petitioners warrants transfer of the complaint
from the Court of Sub-Registrar Judicial Magistrate
Ist Class, Srinagar to any Court of competent
jurisdiction at Jammu.
The case was heard in ex-parte as none had
appeared for the respondents to contest the petition.
I have considered the submissions of learned
counsel for the petitioners and gone through the
judgments, cited by him in support of his
submissions.
Petitioners’ first plea that prosecution could not
have been launched without previous sanction of the
Authority specified under sub-section (4) of Section
33-G of the Drugs and Cosmetics Act, 1940, is found
to be misconceived, in that, this Section does not
contemplate issuance of any Sanction before
launching of prosecution. Prior Sanction for
launching prosecution is, on the other hand,
contemplated by Section 33-M of the Act, which
would have, however, no application to the facts of
the present case because the prior Sanction
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contemplated by the Section pertains to the
prosecution of the offences appearing under Chapter
IV-A of the Act and not for the offence punishable
under Section 27(c), which falls in Chapter IV of the
Act.
His contention is accordingly rejected.
In view of the material placed on records by the
complainant, I do not find any merit in petitioners’
other contentions too relating to the violation of the
provisions of the Act, in so far as following of
procedure prescribed in the Act for taking samples
and complying with other requirements of the Act,
before launching prosecution for commission of
offences punishable under Chapter IV of the Act, are
concerned. This is so because the material placed
on records by the complainant does not indicate any
prima facie violation of the provisions of the Act
which are required to be complied with before
launching of prosecution under the provisions of the
Drugs and Cosmetics Act, 1940, and the petitioner
has not placed any such material on records on the
basis whereof his plea about the violation of the
provisions of the Act may be sustained.
I, however, find substance in petitioners’ last
contention that neither is there any statement in the
complaint nor any material on records accompanying
the complaint indicating that the petitioners were, incharge
of, and were, responsible to the Company,
for the conduct of business of the Company, and
were thus, as such, liable for commission of the
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offence by the Company, in terms of Section 34 of
the Drugs and Cosmetics Act, 1940.
For all what has been said above, I am of the
view that continuance of proceedings on the
respondent’s complaint against the petitioners, in the
absence of any allegation against them in the
complaint or appearing from the material on records,
of their being in-charge of, and responsible to the
Company for the conduct of its business, would
amount to abuse of the process of court.
Accordingly, allowing the petition, proceedings
initiated on respondents’ complaint against the
petitioners by learned Judicial Magistrate (Sub
Registrar), Srinagar, are quashed.
(J.P.Singh)
Judge
JAMMU:
23.04.2009
Anil Raina, Secy.
