Cri. Rev. Appln. No. 105 of 1994. Case: State of Maharashtra through V. K. Biyani Vs Ms. Plethico Pharmaceuticals. High Court of Bombay (India)
| Case Number | Cri. Rev. Appln. No. 105 of 1994 |
| Counsel | For Applicant: Sri L. G. Deshpande, A. P. P., Adv. and For Respondents: Dr. B. G. Kulkarni, Adv. |
| Judges | B. U. Wahane, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 397, 204 |
| Citation | 1996 CriLJ 1000 |
| Judgement Date | August 07, 1995 |
| Court | High Court of Bombay (India) |
Judgment:
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In this criminal revision, the State of Maharashtra through Drugs Inspector, Food and Drug Administration, Maharashtra State, Akola, took exception to the order of First Addl. Sessions Judge, Akola, passed in Criminal Revision No. 60/93, entertaining the criminal revision challenging the order of issue of process against the non-applicants and consequently quashing the proceedings of Criminal Case No. 209 of 1991 pending in the Court of J. M. F. C., Nagpur.
According to the learned counsel for applicant, the issue i.e. "issue of process" is an interlocutory order and the Same is not subject to revision under Section 397 of the Code of Criminal Procedure, is involved in the present application and same issue is concluded and determined by the judgement of this Court in the case of Uttam Krishnaji Levarkar v. State of Maharashtra (1995 (1) Mah. LJ 95) (Per R. M. Lodha, J.), wherein it has been held that
"Order issuing process on ex parte consideration of the complaint and material under Section 204 is an interlocutory order and is not subject to revision under Section 397 Criminal Procedure Code." Learned Brother relied on the case of K. M. Mathew v. State of Kerala (AIR 1992 SC 2206): (1992 AIR SCW 2666: (1992 Cri LJ 3779) (SC). Dr. Kulkarni, the learned counsel for the non-applicants, vehemently submitted that the earlier decisions of this Court, other High Courts and the Hon'ble Supreme Court, are to the effect that "the order issuing process is not an interlocutory order because it affects the right of the party." were not brought to the notice of the Court. Thus, the judgement is per-incuriam and deserves fresh consideration by this Court and if this Court is not convinced, and it so deserves be referred to the larger Bench of this Court in view of the earlier decisions of this Court and of the Apex Court.
Shri L. G. Deshpande, learned A. P. P. and Dr. Kulkarni were heard at length.
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The respondent No. 1 M/s. Plethico Pharmaceuticals deals in manufacturing of various products including drugs known as Ampicilline and Cloxacilline under valid licence from the Competent Authority. On 3rd May, 1991, the Drugs Inspector, Akola, took out a sample of Ampicilline and Cloxacilline having batch No. TEN B No. 0056 manufactured on 10/90 and having expiry date 3/92. One of the samples was sent for analysis to Maharashtra State Drugs Control Laboratory, Bombay on 4-7-1991. The report of the analysis dt/- 17-7-1991 was received by Drugs Inspector on 1-8-1991. The copy of the report was forwarded to the accused by the Drugs Inspector vide letter dt/- 3-8-1991. Accused received the same on 8-8-1991. On 14-11-1991, a letter was received from the accused with the request to send another sample to be sent to Central Laboratory, Calcutta. According to the accused, earlier letter was sent to the same effect on 2-9-1991. The Drugs Inspector filed the complaint in the Court of Judicial Magistrate, First Class, Balapur on 24-12-1991. An application was moved by the Drugs Inspector requesting the Judicial Magistrate, First Class, Balapur, to forward another sample to the Central Drugs Laboratory, Calcutta for test and report. On 24th December, 1991 itself, the learned Judicial Magistrate, First Class, Balapur, registered the case as Criminal Case No. 209/91 and issued process to the non-applicants for the offence punishable under Sections 18(a)(1) read with Sections 17,17A and 17B of the Drugs and Cosmetics Act. After the receipt of the report of Analyser, specifying that the drug is sub-standard with further report that the contents of cloxacilline is less than prescribed amount of 42.61% and after obtaining permission from the Competent Authority, the complaint was filed in the Court of J. M. F. C., Balapur.
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The non-applicants/accused received the summons of the Court on 25-2-1993 directing them to remain personally present before the Judicial Magistrate, First Class, Balapur, on 29-3-1993. Being aggrieved by the order of the issue of process against the non-applicants accused, the non-applicants preferred revision in the Court of Sessions Judge, Akola, seeking relief to the effect that the proceedings of Criminal Case No. 209/91 pending before J. M. F. C. Balapur and the criminal complaint filed by the Drugs Inspector be dismissed.
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The learned 1st Additional Sessions Judge, Akola, heard the learned Counsel of the parties at length, perused documents placed before him in Criminal Revision No. 60/93 and upheld the submissions made on behalf of the non-applicants/accused, repelling the submissions made by the learned A. P. P. Learned revisional Court rendered judgement and order dated 8-3-1994 and held that
When the Trial Court issued the process against the accused, there was no report of the Central Drugs Laboratory before the trial Court. The same was received after the process was issued and before the present Criminal Revision was filed. Due to the effect of the report of Director of Central Drugs Laboratory, pointed out above, the process issued by the learned Magistrate will have to be quashed and proceedings will have to be dropped.
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In this criminal revision, the State assailed the judgement and order dt/- 8th March, 1994 passed by the 1st Addl. Sessions Judge, Akola, in Criminal Revision No. 60/93, on the ground that issue of process being an 'interlocutory order', as contemplated under Section 397 Criminal Procedure Code, the revision application was not maintainable in law. Secondly, the learned 1st Addl. Sessions Judge, Akola, committed an error in relying on the material which was not before the trial Court, i.e. report of the analysis by Central Drugs Laboratory. Thus, the learned A.D.J., Akola exceeded his jurisdiction. The findings are further assailed on the ground that the learned 1st Addl. Sessions Judge erred in considering the report of the Central Drugs Laboratory as final and conclusive, thereby superseding the report of the Government Analyst.
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Shri Deshpande, the learned counsel for the applicant/State specifically submitted that the order taking cognizance and issuing process is an interlocutory order and thus, no revision against the interlocutory order is tenable under Section 397 of Cr. P.C. Section 397 Cr. P.C. deals with the revisional powers of the High Court and the Sessions Court. Section 397 Cr. P.C. reads as under:
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be...
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