Deepesh Arvindbhai Patel and Others vs State of Karnataka

K.N. Phaneendra, J.—The petitioners have approached this Court seeking quashing of the entire proceedings in Drugs Special Case No. 1/2014 pending on the file of the Principal District and Sessions Judge, Bijapur, wherein, the learned Sessions Judge has taken cognizance and issued process against the accused for the offence punishable under Section 18(a)(i) read with Section 17B(d), 27D and 27C of the Drugs and Cosmetics Act, 1940.

The brief factual matrix that emanate from the records are that:

"One Sri Umesh S, the then Assistant Drugs Controller, Bijapur Circle, Bijapur, on 31.10.2008, drawn a legal sample of the Drug Rebap-DSR (Rabeprazole Sodium and Dompendone sustained release Capsule) B. No. TP70799 D/M:11/2007, D/E:101/2010, Mfd. By Tauras Parenterals Pvt. Ltd., Plot No. 46-A, Sector IIDC, Sidcul HE, Pantnagar, Rudrapur Dist. U.S. Nagar, Uttaranchal, from the sales premises of M/s. Sanket Pharma, CTS No. 302, Ward No. II, 1st floor, Room No. 3, Mathpathi Galli, Bijapur, for the analysis vide Form No. 17 dated 31.10.2008 as per the procedure laid down under the provisions of the Drugs and Cosmetics Act, 1940. Thereafter, one portion of the said drug was forwarded for analysis to the Government Analyst, Drugs Testing Laboratory Karnataka, Bangalore for the purpose of Test and analysis vide Memorandum in Form - 18 bearing No. US/ADC/BJR/DS/32/90/08-09 dated 3.11.2008. Thereafter, the then Drugs Inspector, Bijapur Circle, Bijapur received the test and analysis report in Form No. 2 bearing No. 2-1/2010-SS/CC-277/130 dated 8.6.2010 issued by the Director of Central Drugs Laboratory, Kolkatta on 3.7.2010 declaring the said batch of drug as "not of standard quality" and also SPURIOUS u/s. 17B(d) of the Drugs and Cosmetics Act, 1940." 3. It is in detail made allegations in the complaint as to what are the roles of the accused persons, wherein, it is specifically stated that A1 to A4 are the manufacturers of the said drug for sale and A5 to A8 have stocked the said drugs for sale and thereby committed the offences and for having sold the said drug of ''not of standard quality'' and spurious drug to the public at large and A9 has also committed the offence because, the said person is the competent person working in A5 Firm who is over all looking after the supervision of the said firm. A5 is the Company which is stocking the drugs manufactured by A1 to A4 and selling them to the public at large, giving specific roles to A1 to A9, the complaint has been filed.

The learned counsel for the accused/petitioners strenuously contended that the accused persons except A5 would come within the jurisdiction of Bijapur Sessions Court. Therefore, learned Sessions Judge ought to have postponed the issuance of summons and would have made enquiries with regard to the grounds for proceeding against the accused. The learned counsel for the petitioners also contended that the offences are triable by the Magistrate Court and the Sessions Court has no jurisdiction to try the same. However, it is submitted that the accused persons are not liable because all the Directors are not indulged in committing such an offence, but they are also made as parties to the proceedings.

So far as the first point is concerned, Section 202 of Cr.P.C. of course mandates the Magistrates to invoke their jurisdiction only after finding sufficient ground to proceed against the accused. For all practical purposes, they have to meticulously follow Section 202 of Cr.P.C.

Though the learned High Court Government Pleader appearing for the respondent - State tried to persuade me that it is only applicable to the Magistrates and not to the Sessions Courts, but in my opinion, it is equally applicable to the Court of Sessions, where the Sessions Court exercises the powers of a Magistrate by taking cognizance as the said Court is having original jurisdiction without there being any committal proceedings. Therefore, Section 202 of Cr.P.C. can very well be pressed into service by the accused persons, but this Court has to see, for what purpose Section 202 is to be invoked, whether it is absolutely necessary in all the cases. Section 202 reads as follows:

"202. Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,-

(3) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant."

(emphasis supplied)

On plain reading of the above said provision, it clarifies the situation that the Magistrate is obliged to invoke Section 202 of Cr.P.C., which mandates only for the purpose of deciding whether or not, sufficient ground to proceed against the accused person, if they are residing outside, the jurisdiction of that Court, earlier it was made discretionary, but now it is made as mandatory.

Even on meticulous reading of this provision, still the discretion vests with the jurisdictional Court, because it starts with the mandatory requirement that if he thinks fit and shall in a case where the accused is residing at a place beyond the area, then if he thinks fit for the purpose of ascertaining sufficient grounds to proceed against the accused, then only he can invoke the provision. Therefore, when the provision says that if the Magistrate thinks fit, itself pre-supposes, still the discretion vests with the Court. In the circumstances, when the facts are hazy and the Magistrate definitely cannot come to the conclusion regarding existence of sufficient grounds, then he has to make inquiry u/s. 202 of Cr.P.C.. to satisfy himself that there are sufficient grounds for proceeding against the accused. He can make an enquiry to the case himself or even u/s. 202 of Cr.P.C., after taking cognizance, direct an investigation to be made by a Police Officer or by any such person as he thinks fit. Therefore, in this particular case, the learned counsel has not brought to my notice, why the Magistrate ought to have invoked Section 202 of Cr.P.C.. and what are the deficiencies in the order passed by the learned Sessions Judge.

On meticulous perusal of the complaint averments, there are allegations with regard to the commission of the offence by the accused persons, specific roles have been given to the accused persons and how, they are responsible for the commission of the offence and also the procedure being followed by the Drugs Inspector and other Investigating Officer while taking the sample, sending to the Laboratory, receiving the report and thereafter taking permission from the competent authority and then filed complaint before the competent Court. Therefore, the Sessions Judge must have satisfied himself with regard to the sufficiency of the grounds to proceed against the accused. Therefore, in the order though it is not in detail stated by the learned Sessions Judge, but it is stated that there are grounds to take cognizance against the accused persons for the offences alleged. Therefore, he has taken cognizance and issued summons. The order impugned in the appeal need not be elaborately passed by the learned Sessions Judge, but on plain reading of the complaint averments and the documents produced along with the complaint, if the Magistrate on cursory reading of those things, is of the opinion that there are sufficient grounds to proceed against the accused, merely because he has not invoked Section 202 of Cr.P.C., it does not mean to say that such proceedings are vitiated. Therefore, I do not find any strong reason so far as this reason is concerned.

The Drugs and Cosmetics Act, 1940, is a self contended enactment. Section 32 of the Act refers to the cognizance of the offences which reads as follows:

"32. Cognizance of offences - (1) No prosecution under this Chapter shall be instituted except by-

(a) an Inspector; or

(b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or the State Government by a general or special order made in this behalf by that Government; or

(c) the person aggrieved; or

(d) a recognised consumer association whether such person is a member of that association or not.

(2) Save as otherwise provided in this Act, no Court inferior to that of a Court of Session shall try an offence punishable under this Chapter.

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter."

On plain and meaningful understanding of the provision, the offences which are recognized under Chapter IV of the Act, are made punishable and triable by the Court of Sessions. Section 32(2) of the Act clearly discloses that - Save as otherwise provided under this Act, no Court inferior to the Court of Sessions, shall try an offence under Chapter IV starting from Section 16 to 33A of the Act. Section 17 and 18 are covered under this particular Chapter. Therefore, the learned Sessions Judge will get powers to take cognizance and try the said offences. Therefore, in my opinion, there is no jurisdictional error committed by the learned Sessions Judge in taking cognizance and issuing summons.

Last, but not least, the learned counsel for the accused contended that almost all the Directors of the companies have been made as accused, but the said submission is not correct. On perusal of the complaint averments, a detailed lengthy complaint has been filed running about 5 pages, in which at paragraph 19 to 30, the complaint averments clearly discloses the role of the individual accused persons in the companies in which they are working. Even otherwise, if the accused persons are claiming that they have no knowledge or without their consent any offence is being committed by the other accused persons, they are at liberty to approach the Trial Court seeking to exonerate them even at the time of framing of charges.

Looking from any angle, in my opinion, no grounds at this stage are made out for the purpose of quashing of the entire proceedings. More over, the entire charge sheet papers are not before this Court and only after the entire materials are placed before the Court, the Trial Court/Sessions Court, can take appropriate view with regard to the framing of charges against the accused persons.

Accordingly, the petition stands disposed off. The petitioners are at liberty to approach the Trial Court/Sessions Court by way of necessary application for their discharge. In that eventuality, the Trial Court/Sessions Court has to go through the entire materials on record and pass appropriate order. All the grounds which are urged before this Court are kept open to be urged before the learned Trial Court/Sessions Court at the time of framing of charges and the learned Trial Judge/learned Sessions Judge has to independently apply his judicious mind and pass appropriate order without being influenced or persuaded by any of the observations made herein.