Omni Protech Drugs (Pvt.) Ltd. vs State and Others

Muzaffar Hussain Attar, J.—The petitioner who is manufacturer of drugs has been arraigned as accused in compliant filed by Drug Inspector

Jammu. In the year 1998 samples of Becosules Capsules lot No. 97335 was taken from premises of M/s Sanjay Medicos as per procedure

provided u/s 23 of the Drugs and Cosmetics Act, 1940 (for short Act of 1940). After completion of the formalities and after drugs were reported

to be spurious a complaint was filed before the court of Id. CJM Jammu in the year 1999 by Drug Inspector against the petitioner besides other

persons u/s 17B and 18(a)(1) read with Section 27(a) of the Act of 1940. The learned trial Magistrate took cognizance of offence and issued

process. It is for the alleged infraction, of Section 23 of the Act, 1940 this petition is filed seeking quashment of complaint and all proceedings

initiated thereon.

Heard learned Counsel for petitioner. Considered the matter. The learned Counsel for the petitioner has been at pains to explain to the Court

that Drug Inspector observed provisions of Section 23 and 25 of the Act of 1940 in breach and resultantly the criminal prosecution launched

against the petitioner is rendered illegal. The Id. Counsel while arguing submitted that the requirement of statute is that sample is to be send to the

manufacturer but in this case the sample has not been send to the manufacturer which prejudiced him in clearing his position in the case. It is further

submitted that the copy of report of public analyst was send to the petitioner but the delay caused in sending the said report disabled the petitioner

to get the sample rechecked by Central laboratory as the sample in the meanwhile had expired. Consequently the petitioner is prejudiced and all

criminal proceedings against the petitioner deserves to be quashed. In the petition some other pleas have been taken which interalia include that the

persons who are selling the alleged spurious drugs had in fact not purchased the said drugs from the petitioner-company, but in order to adversely

affect the petitioner's-company some vouchers were forged. On these pleas the learned Counsel seeks quashment of the complaint.

In support of his arguments learned Counsel has referred to case titled Kiran Dev Singh v. State of Hamachal Pradesh 1990 DC 324, to state

that it is incumbent upon the drug inspector to make copy of public analyst report as also part of the sample available to the manufacturer where his

identity becomes known and before he is actually proceeded against. This case in fact was cited in support of the quashment of like complaint

before the Hon'ble Supreme Court in case titled Amery Pharmaceuticals and Another Vs. State of Rajasthan, . The learned Counsel has further

referred to and relied upon case titled Municipal Corporation of Delhi Vs. Ghisa Ram, .

The power u/s 561A is exercised for quashment of complaint or other criminal proceedings in rarest of rare cases. The said power is to be

exercised with great caution and circumspection. It is not the case set up that the compliant, copy whereof has been placed on the record of the

petition, does not disclose the commission of offence. The Id. Counsel based his case on alleged infraction of Sections 23 and 25 of the Act of

1940. The complaint does state material facts about commission of offence and the complaint in such circumstances cannot be quashed. The issues

raised by the petitioner in the petition are primarily questions of fact which require adjudication at the trial. The question of not making available

samples to the petitioner and that when the report of the analyst was sent to him the sample had already expired may become defence for the

petitioner during trial of the case but on such issues which are required to be proved at trial in Court of law complaint cannot ordered to be

quashed. For proof or otherwise of facts the evidence is required to be lead for and against by the parties before Id. trial judge.

This Court in exercise of powers u/s 561A may not enter into disputed questions of fact and it will be hazardous to quash complaint and criminal

proceedings without knowing the facts which are still to be proved during the trial. The judgment in case Kiran Dev Singh's case has been

considered by the Hon'ble Supreme Court in Amery Pharmaceuticals' case and the contention raised has been repelled by the Hon'ble Supreme

Court. The judgment of the Hon'ble Supreme Court in fact does not support the case of the petitioner. In the case of Municipal Corporation of

Delhi it was a full fledged trial conducted. The said judgment in such circumstances will not be applicable at the threshold stage of the case. All

these aspects are to be considered by the trial court.

No case for quashment of criminal proceedings is made out. The petition is accordingly dismissed. The Id. trial Judge is requested to expedite

the trial of the criminal proceedings.