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2015 Supreme(AP) 508
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
B. SIVA SANKARA RAO, J.
M/s. Gaba Pharmaceuticals Private Limited, Rep. by its Managing Director Jaya Gaba & Others – Petitioner
Versus
Union of India Rep. by Drugs Inspector Sarala Devi Central Drugs Standard Control Organization & Another – Respondent
Criminal Petition No. 2178 of 2015
Decided on : 14-08-2015
Advocate Appeared:
For the Petitioners:N. Bharat Babu, Advocate.
For the Respondents:R1, B. Narayana Reddy, Advocate, R2, Public Prosecutor.
Headnote:
Criminal Procedure Code,1973 – Section 482 - Drugs & Cosmetics Act, 1940 – Section 16(1)(a) – Petitioners/A1 to A4 seeking to quash the proceedings initiated against them in Drugs Sessions Case No.2 of 2013 consequently discharge the petitioners and sought for stay pending final disposal of the case petitioners 1 to 4 are the accused in Drugs Sessions Case on the file of I Additional Metropolitan Sessions Judge, Hyderabad first respondent is the Union of India, represented by the Drug Inspector, Central Drugs Standard Control Organization, CDSCO Hyderabad second respondent is the State of represented by its Public Prosecutor first petitioner is the company represented by its Managing Director-third petitioner and besides the third petitioner individually being the Managing Director, the other petitioners 2 and 4 as Directors, all the four petitioners are shown as accused in the complaint laid by the first respondent-Drugs Inspector for the offence punishable under Section 16(1)(a) of the which contravention is punishable under Section 27 of the Act learned VII Additional Chief Metropolitan Magistrate where the complaint filed under Section 200. read with Section 32(1) of the Act, has taken cognizance and in turn committed the case to the Court of Sessions supra, for its in turn taking of cognizance Contention of the learned counsel for the petitioners in impugning the pending proceedings supra are that committing of the case by the learned Magistrate and taking of cognizance by the learned Sessions Judge is liable to be quashed being abuse of process, that the procedure contemplated for dividing and sealing the sample and restoring one sample with the person from whom the sample taken, is not followed, and the procedure followed in this regard is not mentioned and Form 17 was not addressed, and Rule 57 is contravened in forwarding the sample procedure is mandatory and for not following the same the proceedings vitiate –Held, Coming back to Section 36AB, which speaks about the Special Court for the offence punishable. Among only included to say (b) and 27(d) are by magistrate having jurisdiction. Special Court is not entrusted with these as per supra fact the Kerala High Court in case (referred supra) held at paragraph Nos.4 and 5 that the offence of the Act is punishable under Section 27(d) of the Act. Now coming to the complaint filed and cognizance taken by the magistrate is of the Act complainant in filing the complaint did not speak whether the offence comes or any of the specific provisions among to learned Magistrate also in the committal order did not speak the same learned Sessions Judge after taking cognizance under Section 193. at post committal stage in passing the impugned order after hearing of parties also, for the reason no one brought to its notice, did not advert to it. Having regard to the above, it is a fit case to remit the matter back to the learned Sessions Judge for further hearing and pass an order as to the case whether comes under Section 27(a) or Section 27(c) or both for retaining by him as a Special Court being Court of Sessions from the committal made and cognizance under Section 193 Cr.P.C. taken, if not and if comes under Section 27(b) or 27(d) or both, to send back to the magistrate within his power under Section 228 while framing charge as triable by magistrate under Section 228(1) – Criminal Petition is disposed.
1. This is a Criminal Petition filed, under Section 482 Cr.P.C, by the petitioners/A1 to A4 seeking to quash the proceedings initiated against them in Drugs Sessions Case No.2 of 2013 dated 26.02.2015, consequently discharge the petitioners and sought for stay pending final disposal of the case.
2. The petitioners 1 to 4 are the accused in Drugs Sessions Case No.2/2013 on the file of I Additional Metropolitan Sessions Judge, Hyderabad. The first respondent is the Union of India, represented by the Drug Inspector, Central Drugs Standard Control Organization, CDSCO Bhavan, Sanjeeva Reddy Nagar, Hyderabad. The second respondent is the State of Telangana, represented by its Public Prosecutor.
3. The first petitioner is the company represented by its Managing Director-third petitioner and besides the third petitioner individually impleaded being the Managing Director, the other petitioners 2 and 4 as Directors, all the four petitioners are shown as accused in the complaint laid by the first respondent-Drugs Inspector for the offence punishable under Section 16(1)(a) of the Drugs & Cosmetics Act, 1940 (for short, ‘the Act’) which contravention is punishable under Section 27 of the Act. The learned VII Additional Chief Metropolitan Magistrate, Hyderabad, where the complaint filed under Section 200 Cr.P.C. read with Section 32(1) of the Act, has taken cognizance under Section 190 Cr.P.C. and in turn committed the case to the Court of Sessions supra, for its in turn taking of cognizance under Section 193 Cr.P.C.
4. The contention of the learned counsel for the petitioners in impugning the pending proceedings supra are that committing of the case by the learned Magistrate and taking of cognizance by the learned Sessions Judge is liable to be quashed being abuse of process, that the procedure contemplated under Sections 23(3) and 23(4) of the Act, for dividing and sealing the sample and restoring one sample with the person from whom the sample taken, is not followed, and the procedure followed in this regard is not mentioned and Form 17 was not addressed, and Rule 57 is contravened in forwarding the sample, that the Directors of the company involved as A2 and A4 not concerned with day-to-day administration to make them liable and the request of petitioners/A1 to A4 on 26.04.2012 for re-analysis by a superior authority is not considered, that takes away the right under law, the case is triable by magistrate and the committal is not correct, and the procedure is mandatory and for not following the same the proceedings vitiate. It is also the contention that the petitioners filed Crl.M.P. No.1605 of 2014 in seeking discharge of them under Section 227 Cr.P.C, but the learned Sessions Judge dismissed the same by order dated 26.02.2015 and impugning the same Crl.R.C. No.364 of 2015 is filed and the Court directed to convert as petition under Section 482 Cr.P.C. and there from sought for the reliefs supra.
5. The impugned order of the learned Sessions Judge reads that on perusal of the documents filed with the complaint 12 in number, fourth document, which is Test Report in Form 13 of the Government Analyst at Central Drugs Laboratory, Kolkata, shows the sample is not of standard quality, which is a clear contravention of Section 16(1)(a) read with Section 27(a) of the Act, and, so far as framing of charges is concerned, the standard of test, required to be applied during trial by appreciation of evidence, should not be applied, but for to see whether there is any prima facie accusation to frame charge with no need of conducting any roving enquiry or assessing probative value of the material and with that standard and limited scope from the material of the complaint, once there is a prima facie accusation to frame charge, held no grounds to discharge, and thereby dismissed the application for discharge. In fact, before the learned Sessions Judge, covered by the order supra, there is no ground urged regarding jurisdiction by saying much less
