Case No. 241/2016, M.P. (Cr) No. 01/2016, Case Nos. 242/2016, 243/2016, 68/2016, 02/2016, 101/2016, 76/2016, 296/2015, 154/2015, 158/2015, 75/2015, 74/2015, 122/2015, 294/2015, 65/2016, 123/2016, 121/2015, 101/2015, 271/2015, 270/2015, 224/2015, 67/2016, 133/2015, 252/2013, 100/2015, 79/2016, 66/2016, 132/2016 and 217/2015. Case: Rajeev Mukul and Ors. Vs State and Ors.. High Court of Jammu and Kashmir (India)
| Case Number | Case No. 241/2016, M.P. (Cr) No. 01/2016, Case Nos. 242/2016, 243/2016, 68/2016, 02/2016, 101/2016, 76/2016, 296/2015, 154/2015, 158/2015, 75/2015, 74/2015, 122/2015, 294/2015, 65/2016, 123/2016, 121/2015, 101/2015, 271/2015, 270/2015, 224/2015, 67/2016, 133/2015, 252/2013, 100/2015, 79/2016, 66/2016, 132/2016 and 217/2015 |
| Counsel | For Appellant: Varut Kumar, Sachin Gupta, S.M Ayoub, M.S Latief and Masooda Jan, Advs. and For Respondents: Mohammad Iqbal Dar, A.A.G. |
| Judges | Ali Mohd. Magrey, J. |
| Issue | Criminal Law |
| Judgement Date | January 28, 2017 |
| Court | High Court of Jammu and Kashmir (India) |
Judgment:
Ali Mohd. Magrey, J.
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The batch of these petitions shall be decided together as the point in issue involved in all the petitions is similar; therefore, this order shall govern all.
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The respondent-Drug Inspector on market checking collected various drugs from different places of different pharmaceutical companies for testing its standard and the collected drugs were found, on testing, not to be of standard quality. Subsequently, the respondent adopted a legal course by filing complaints before the competent courts of jurisdiction. The complaints filed in terms of Section 18(a)(i), and 27(d) of the Drugs and Cosmetics Act, 1940, for short Act, were entertained and process issued by the respective courts.
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On the assumption that the course adopted by the respondents' and the Designate Courts is bad in law, the petitioners in these petitions challenge its legal sanctity. Hence the petitions.
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To make the controversy a little more vivid a brief case-wise event description is deemed appropriate, thus:-
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Petitioner in 561-A No. 241/2016 is a partner in Zee Pharmaceuticals and is arrayed as accused in the complaint pending before the Chief Judicial Magistrate, Srinagar, in terms of the Act supra. He challenges the complaint and the issuance of process on the ground that he is only representative of the Company and the Company itself has not been arrayed as party which is a legal lacunae as it is well settled that the complaint does not hold good in the eyes of law if the principal accused is not arrayed as party in the complaint. The further challenge is made on the ground that the accused was not given enough time to disprove the testing report and that certain technical requirements have not been fulfilled as warranted in terms of the Act supra.
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Similarly, in 561-A No. 75/2015, titled Sarvear Pharmaceuticals v. Drug Inspector, Sopore, the challenge to the complaint filed in terms of the Act supra and the issuance of process thereon by the court of Additional Sessions Judge, Baramulla, is made inter alia on the ground of having failed to array the Company as the accused in the complaint, therefore, is bad in law. The petitioner, in the capacity of a partnership concern, cannot be burdened with complete criminal liability of the Act attributable to the Company itself. The Drug Inspector concerned had lifted the samples of 'Bactosar' drug bearing batch No. 0253 which was found to be of not standard quality during its testing. Hence the petition.
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In the petition No. 74/2015, petitioner again pleads the same ground to challenge the complaint filed in terms of the Act supra, pending before the court of Additional Sessions Judge, Baramulla. The Drug Inspector, complainant, had lifted the samples of Injection Trialex 1000 bearing batch No. 110211 and on testing found it not of standard quality.
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In the petition No. 122/2015, petitioner challenges the legality of the complaint filed in terms of the Act supra before the Court of Chief Judicial Magistrate, Anantnag, on the ground that the learned Judicial Magistrate failed to appreciate the plea that the complaint is bad in law, for, it does not fulfill the requirements of Section 25(4) and Section 34 of the Act supra and proceeded to record the statement of the accused in terms of Section 242 of the Code of Criminal Procedure. The course adopted by the Designate Court is thus bad in law, therefore, requires to be interfered with. The respondent, Drug Inspector Zone VI had, during checking, lifted the samples of Injection Trixim-SB 1.5 gms bearing batch No. AS-155, for its testing and had been found not of standard quality.
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In petition No. 294/2015, again the same plea has been raised that the Company is not arrayed as accused, therefore, complaint is bad in law and it does not disclose the role played by the petitioner, Director of SGS Pharmaceuticals Pvt. Ltd. The Drug Inspector concerned, complainant, had lifted the sample of Drug 'Pantaprazole' bearing batch No. JPH-002 and on testing the drug has been found to be of not standard quality.
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In petition No. 65/2016, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged on the same ground again that the company has not been arrayed as party in the complaint; therefore, complaint is bad in law. It further attacks the complaint on the ground that Section 25 of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the analysis report. In this case the court of Chief Judicial Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug namely Ceftriaxone bearing batch No. CF1J12003, which on analysis has been found to be not of standard quality.
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In petition No. 123/2016, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged on the ground that the requirements of Section 19(3) read with Section 34 of the Act supra have not been followed, therefore, complaint is bad in law. In this case the court of Chief Judicial Magistrate, Handwara, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug namely "Nozol-40" bearing batch No. NLT 02 which on analysis has been found to be not of standard quality.
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In petition No. 133/2015, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged on the ground that the petitioner is a proprietor of M/s. Nank Pharma dealing in Drugs as a distributor and he has no role to play in manufacturing of a particular drug, therefore, the complaint and the cognizance taken thereupon is stated to be bad in law. In this case the court of Chief Judicial Magistrate, Kulgam, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug namely Enflam-S bearing batch No. T1207292, which on analysis has been found to be not of standard quality.
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The petitioner in petition No. 121/2015, is a manufacturing unit of Pharmaceutical Company M/s. G.S. Pharmaceuticals Pvt. Ltd. and challenges the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra on the ground that Section 25(3) and (4) of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the analysis report. In this case the court of Chief Judicial Magistrate, Kulgam, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the manufacturing and sale of drug namely Enflam-S bearing batch No. T1207292, which on analysis has been found to be not of standard quality.
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Petitioners, in their capacity as partners in a partnership concern namely E.G. Pharmaceuticals, in petition No. 101/2015, challenge the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra on the same ground again that the company has not been arrayed as party in the complaint; therefore, complaint is bad in law. It further attacks the complaint on the ground that Section 25(3) and (4) of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the analysis report. In this case the court of Additional Sessions Judge, Baramulla, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug namely Traxon-1.0 gm bearing batch No. SIEG-11009, which on analysis has been found to be not of standard quality.
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In petition No. 271/2015, the petitioner is a manufacturer of the pharmaceutical company M/s. Arion Health Care and challenges the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged on the ground that in terms of Section 36 of the Act supra the Designate Court does not have the jurisdiction to try the complaint. In this case the court of Forest Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the manufacturing and sale of drug namely Trobact (inj) bearing batch No. Fl. 1167, which on analysis, has been found to be not of standard quality.
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In petition...
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