Point of law: Quash of Criminal proceedings –Rejected - Disputed question of facts to be raised before trial court -

ORDER :

1. This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the entire proceedings pending before the Special Court for Economic Offences at Bengaluru in Criminal Case No. 189/2019 issuing summons against the petitioner/accused No. 8 and grant such other relief as deems fit in the circumstances of the case.

2. The factual matrix of the case is that the prosecution filed a complaint under Section 200 of Cr.P.C. against accused Nos. 1 to 9 for the offences punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940 (‘D&C Act’ for short). On that basis, criminal case was registered. The accused have challenged the registration of the case earlier before this Court in Crl. Pet. No. 6324/2015. This Court vide order dated 01.07.2019, quashed the proceedings and remitted the matter to consider the complaint afresh from the stage of receiving it from the respondent and proceed thereafter in accordance with law.

3. The complainant who has invoked Section 200 of Cr.P.C. is a public servant and in the complaint an allegation is made that accused No. 1 is the manufacturing unit run under the name and style of M/s. Altra Pharmaceuticals Ltd. engaged in manufacturing and sale of drugs. Accused Nos. 2 to 4 are the Directors. Accused No. 5 is the Managing Director of accused No. 1 and are responsible for day to day business of the Company and have been responsible for the offence committed. Accused No. 6 is the Production Manager of accused No. 1 and he was responsible for manufacturing of the not of standard quality drug DEAMICRON. Accused No. 7 is the Quality Control Manager of accused No. 1 and she was responsible for manufacturing of No. 1 standard quality drug DEAMICRON. Accused No. 8 is M/s. Serdia Pharmaceuticals (India) Private Limited holding loan licence in Form No. 25A bearing No. 25A-AD/145-A granted on 17.07.2001 and renewed in Form No. 26A valid upto 31.12.2017 and responsible for manufacturing of not of standard quality drug at accused No. 1. Accused No. 9 is the Director of accused No. 8 and he is responsible for day to day business of the Company and thereby responsible for the offences committed.

4. The learned Magistrate considered the material averments made in the complaint, particularly paragraph No. 34 wherein it is stated that accused have committed the offence punishable under Section 27(d) of the D&C Act. But in the prayer column it is stated that the accused committed the offence under Section 27(b)(ii) and 27(d) of the D&C Act. There is no averment in the complaint that the drug in question was manufactured without valid licence. Thus, the ingredients to constitute the offence punishable under Section 27(b)(ii) of D&C Act are existing. It is also observed that the complaint averments coupled with the documents produced along with complaint prima facie discloses that the accused committed the offence under Section 27(d) of D&C Act. Hence, issued process against accused Nos. 1 to 9. Accused No. 8 M/s. Serdia Pharmaceuticals (India) Private Limited has approached this Court questioning the order of taking cognizance and issuance of process against it.

5. The main contention of the petitioner herein is that no enquiry as mandated under Section 202 of Cr.P.C. is conducted and without conducting the enquiry as mandated before summoning the accused who resides beyond his jurisdiction, to make the necessary enquiries into the case himself or direct an investigation to be made by the police officer or by such person as he thinks fit, for finding out whether or not there was sufficient ground to proceed against the accused is erroneous. In support of his contentions, he relied upon the judgment of the Apex Court in the case of Vijay Dhanuka and Others vs. Najima Mamtaj and Others, (2014) 14 SCC 638.

6. The other count of argument is that under the provisions of Section 22(2) of D&C Act, the provisions of Cr.P.C. are applicable to all searches and seizures which are conducted under the provisi