Ashok Kumar Khurana vs State of U.P. and Others

S.J. Hyder, J.—Having heard learned Counsel for the parties at length, I have come to the conclusion that this revision must succeed. No doubt the courts of law should not allow a person guilty of an offence punishable under the Drugs and Cosmetics Act to escape lightly by taking cover behind technicality. Nevertheless justice has to be administered according to law and the courts cannot shut their eyes to vital omissions on the part of the Investigating agency.

I have sounded the above noted caution because I am alive to the responsibility which this Court has to the society and at the same time to a person accused of an offence under the Act. Gravity of the problem makes it all the more incumbent on the prosecution to take its duty more seriously and to acquaint itself with the law which it is required to enforce. The duties of the prosecution agency in a case under the Drugs and Cosmetics Act have to be discharged by the officers designated under the said enactment. It would not be proper for this Court to assume the function of the prosecutor and to gloss over the irregularities Inherent in the prosecution launched against a person under the said Act.

Now it is not in dispute that there is a firm dealing in whole-sale business of selling drugs at Saharanpur which is working under the name and style of Adarsh Medical Store, Saharanpur. According to the prosecution the applicant Ashok Kumar Khurana and opposite party No. 3 Arvind Kumar Malhotra were the partners in the said firm. The firm sold certain goods to a Drugs Store at Bijou which were found to be adulterated and substandard. Ultimately the Drug Inspector carried on a search of the premises of Adarsh Medical Store. Saharanpur and took samples of certain medicines which was sent for analysis by chemical analyst. The said drugs were found to be substandard. On receipt of the said report a complaint was filed in the court of Chief Judicial Magistrate by P.R. Rastogi, Drug Inspector. On the basis of the said report, the Chief Judicial Magistrate Saharanpur, issued summons to A.K. Khurana and A.K. Malhotra on August 16, 1979. On an objection raised by the counsel for A.K. Khurana, the Chief Judicial Magistrate by his order dated 24-11-79 recalled his earlier order dated August 16, 1979 only in so far as the applicant was concerned. Peeling himself aggrieved by the order of the Chief Judicial Magistrate, A.K. Malhotra filed a revision before the Sessions Judge. Saharanpur. A.K. Khurana was also imp leaded as a party to the said revision and the notice of the revision was also served upon him. The Sessions Judge, by his order dated August 4, 1980 dismissed the revision filed by A.K. Malhotra. He, however, sue mote took cognizance of the order dated 24-11-79 whereby the Chief Judicial Magistrate had recalled his earlier order dated August 16,1979 summoning A.K. Khurana. He set aside the order of the Chief Judicial Magistrate dated November 24, 1979 and remanded the case to him with a direction to proceed in relation to the applicant, A.K. Khurana also in accordance with the provisions contained in Section 209 Code of Criminal Procedure. The effect of the order of the Sessions Judge is that the order of the Chief Judicial Magistrate summoning the applicant A.K. Khurana stands reinstated and the Magistrate is placed under an obligation to commit the applicant also to the court of Sessions for trial for the offence u/s 27/18 read with Section 28 of the Drugs and Cosmetics Act.

In passing this order against the applicant, the Sessions Judge has relied on the case of Sanjay Gandhi v. Union of India AIR 1975 SC 515. The said case, in my opinion, is clearly distinguishable and does not apply to the instant case. In that case, V.R. Krishna Iyer, J. speaking for the court has made the following observations:

In our view the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence tribal solely by the court of Sessions.

The passage from Sanjay Gandhi''s extracted above makes it clear that the Magistrate is not to act as a mere post office in transmitting a case to the Court of Sessions. True it is that the Supreme Court has held in Sanjay Gandhi (supra) that the discretion of the court at the committal stage is limited under the new Code of Criminal Procedure and it is no longer open to a Magistrate dealing with a case tribal by the court of Sessions, to enter into the merits. Nevertheless the said court has been at pains to point out that an inspection hole is still available to the Magistrate and though its width was much narrow and is only limited to scanning the prosecution report.

This brings me to the question arising in the instant case. Learned Counsel appearing for the applicant has strongly contended that according to the prosecution''s own case the offence is said to have been committed by the firm of which the applicant and opposite party No. 3 are alleged to be the partners. A firm is a company within the meaning of Section 34 of the Drugs and Cosmetics Act. According to learned Counsel a prosecution is not maintainable against the applicant, since no allegation has been made in the complaint filed by Sri Rastogi against the applicant which would make him criminally liable u/s 34 of the Act. Section 34 of the Act deals with the offences committed by a company which have been made punishable under the Act. The said section enjoins interlaid that where an offence under the Act is said to have been committed by a company, a person who at the time of the offence was committed was entrusted or was responsible 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 punished. I have carefully gone through the complaint filed by Rastogi and I am satisfied that there is not a whisper which bring the case within the mischief of Section 34 of the Act Learned Counsel appearing for the Union of India strongly contended that paragraph 42 of the complaint filed by Rastogi does contain such an allegation. However the averment made in the said paragraph of the complaint makes it clear that A.K. Malhotra and the applicant are sought to be proceeded against only on the ground that they are partners in the firm Adarsh Medical Store. It is nowhere alleged that the applicant was responsible for the business of the firm and was in control of its affairs.

Learned Counsel for the Union of India has vehemently urged that the crime attributed to the applicant is a crime against the society and persons like the applicant should be hanged by the nearest lamp post. A person can only proceed if on the allegation made by the prosecution a prime facie case is made put against him. If the allegations made by the prosecution in its report do not disclose any tribal issue, the only course open for the Magistrate is to recall the order issuing summons. The argument advanced by the learned Counsel for the Union of India may be good rhetoric but does not make sound law.

In view of what has been stated above, this revision must succeed. I set aside the order of the Sessions Judge dated 4-8-80 and restore the order of the Magistrate passed on 24-11-79 insofar as the applicant is concerned.