Criminal Application No. 1290 of 2010. Case: Kailash Vs The State of Maharashtra. High Court of Bombay (India)

Case NumberCriminal Application No. 1290 of 2010
CounselFor Appellant: S.V. Sirpurkar, Advocate and For Respondents: Geeta Tiwari, AGP
JudgesV. L. Achliya, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Section 482; Drugs and Cosmetics Act, 1940 - Sections 16(a), 18(a)(i), 18A, 23(4)(iii), 25(2), 27(d), 34, 34(2); Indian Evidence Act, 1872 - Section 65; Negotiable Instruments Act, 1881 - Sections 138, 141
Judgement DateMay 05, 2016
CourtHigh Court of Bombay (India)


V. L. Achliya, J.

  1. The applicant/accused No. 1 has preferred this application u/s. 482 of Cr.P.C. for quashing Criminal Case No. 57/1994, pending on the file of Chief Judicial Magistrate, Bhandara as well as to set aside the order dt. 26.04.2010 passed in the matter granting permission to complainant to lead secondary evidence.

  2. Before appreciating the submissions advanced, it is necessary to consider few facts leading to filing of the present application. The respondent filed criminal complaint for offence u/s. 18(a)(i) r/w Section 16(a) and punishable u/s. 27(d) of Drugs & Cosmetics Act, 1940 (in short "the said Act") as against nine accused which includes the applicant/accused No. 1 alleging therein that the accused Nos. 1 to 7 are the Directors of M/s. Dujohn Laboratories Ltd., Indore-the accused No. 9. Accused No. 8 is the employee of accused No. 9 - Company, who works in the capacity as Dy. General Manager. The accused were holding license in Form 28, bearing No. 28689 dt. 22.2.89 valid upto 31.12.93. By virtue of the licence obtained, accused were permitted to manufacture for sale the Drug known as "Duneuron Injection 30 ml." along with other products approved by the Drug Controller, Food and Drug Administration, Bhopal (M.P.). On 17.05.1993, the then Drug Inspector - Shri. R.D. Damle, visited the premises of M/s. Shri. Gurudeo Medical Stores, Bada Bazar, Bhandara, Maharashtra and drawn a sample of Duneuron Injection manufactured by respondent No. 9 - Company, of which accused Nos. 1 to 7 are the Directors. On analysis of said sample by Govt. Analyst, it was reported that said sample of drug found to be of not standard quality as the, Content of "Pyridoxine hydrochloride" in the sample found to be less than Schedule 'V' limits (41.7% of the labelled amount). As per procedure prescribed under the Act, the copy of the report was furnished and the further inquiry was conducted in the matter as per the provisions laid down under Section 18-A of the said Act, which includes the inquiry about the purchase details of the drugs in question. In inquiry made with M/s. Gurudeo Medical Stores, it was revealed that the said drug was purchased from M/s. Raj Pharma, General Merchant Market, Gandhibag, Nagpur vide Invoice No. 2974 dt. 10.05.1993. Therefore, the Drug Inspector made inquiry with the owner of M/s. Raj Pharma, who, in turn provided the details of purchase and sale of said Injection. It was informed that, the sample of the drug which was seized from M/s. Shri. Gurudeo Medical Stores was purchased from M/s. Jai Medicos, G.M. Market, Nagpur. He also provided the documents to that effect. On further inquiry made with the owner of M/s. Jai Medicos, Nagpur, it was disclosed that the said Drug was purchased from M/s. Dujohn Laboratories Ltd., Indore i.e. accused No. 9, vide Invoice No. I 0029, dt. 19.4.1993. After it was confirmed that said drug was manufactured by accused No. 9 - Company as provided u/s. 23(4)(iii) and Section 25(2) of the said Act, the copy of test report along with the protocols of the test applied & sealed counter part of sample was sent to accused No. 9. Thereafter, the complainant along with Shri. A.M. Dongre, Drug Inspector visited the accused No. 9 and conducted inquiry and investigation regarding the manufacturing of said drug with Mr. Kailash Jindal, the accused No. 1 and Mr. Arun Ojha, accused No. 8. At the time of inquiry, the accused Nos. 1 & 8 disclosed that the drug in question was manufactured for sale on or about 08.04.1993 and distributed for sale on or about 19.04.1993. On investigation conducted in the matter, it was revealed that on or about 17.05.1993 the accused Nos. 1 to 9 had distributed and sold the said drug namely "Duneuron Injection 30 ml.", Batch No. 9303 manufactured by them, which was found to be of not of standard quality and thereby the accused Nos. 1 to 9 contravened the provisions of Section 18(a)(i) r/w Section 16(a) and rendered themselves liable for punishment as per provisions of Section 27(d) of the said Act.

  3. The complaint was filed as against accused Nos. 1 to 9. By order dt. 06.07.1994, the ld. CJM was pleased to issue summons against all the accused. The accused No. 7 i.e. Reena w/o Kailash Jindal i.e. the wife of applicant/accused No. 1 moved an application vide Exh. 4 dt. 15.11.1994 raising objection as to territorial jurisdiction of the CJM to take cognizance of the complaint. Vide order dt. 04.12.1997, the ld. CJM was pleased to allow the application and quash the proceedings. The accused were discharged. The order passed by the CJM was challenged by respondent/complainant by filing Cri. Revn. 04/2002. Vide judgment and order dt. 01.12.2005, the Sessions Court, Bhandara pleased to allow the revision application and set aside the order dt. 04.12.1997 passed by CJM and further pleased to restore the case and directed the learned CJM to dispose of the same as per law. Accordingly, the case was restored. Accordingly the trial Court proceeded with the matter. During the pendency of the proceedings, the accused No. 4 i.e. Lalit Bansilal filed Revision Appln. No. 226/2009 before this Court to quash the process and to discharge the accused. The said Revision Petition was heard and disposed of by this Court (Coram: A.B. Chaudhari, J.) vide judgment and order dt. 01.04.2010. The said Criminal Revision was dismissed with costs of Rs. 5,000/-. The trial Court was directed to proceed with the case and dispose of the same as expeditiously as possible, in any case within a period of four months from the date of order. Thereafter, the trial Court proceeded with the matter. By way of evidence before charge, the examination-in-chief of the complainant was recorded. During the course of recording of evidence, the prosecution has filed application vide Exh. 73 for permission to lead secondary evidence. In the application, the respondent has stated that though the original record was directed to be sent back to trial Court, still the record was destroyed during the course of destruction of old records. On inquiry, it was revealed that the said record was destroyed on 05.02.1999 though the case was pending. In the circumstances, the complainant moved an application seeking permission to lead secondary evidence by producing xerox copies of the originals. On consideration of the submissions advanced which includes the objection raised by the accused, the ld. Magistrate was pleased to allow the application...

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