Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Kar) 366

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M.Nagaprasanna, J.
M/s Emcure Pharmaceuticals Ltd. and Ors. – Petitioners
Versus
State of Karnataka at The Instance of Drugs Inspector-1, Rep by Special Public Prosecutor and ors. – Respondents
Criminal Petition No. 6919 of 2022
Decided On : 22-09-2022

Advocate Appeared:
For the Petitioner:Sri. Pramod Nair, Senior Advocate A/W Sri Anand Muttalli & Sri Gaurav Ganapathy C.G., Advocates
For the Respondent: Smt. K.P. Yashodha, HCGP

Point of Law: Section 27 of the Act reads as Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.—Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes.

Headnote:
Drugs and Cosmetics Act, 1940 - Section 27, (d), 23, 18A, (a)(1), B, C, 23(4)(iii), 33M, 27, 17-A, B, 33G, (4) – Criminal Procedure Code, 1973 – Section 200, 473, 468 - Limitation Act, 1963 - Section 5 - Sample of Drug - Not of Standard Quality - Condonation of Delay - Drugs Inspector, visits M/s Tulasi Pharma and takes a legal sample of drug manufactured by Company, issues it to proprietor of M/s Tulasi Pharma and sends sample so collected for test/analysis - Drugs Inspector who had sent sample for its test receives report of drug in terms of Form from Government Analyst, Drugs Testing Laboratory, and report was that “Not of Standard Quality” with respect to “Assay for Folic Acid” - Drugs Inspector registers a private complaint invoking against petitioners alleging contravention of Section 18(a)(1) which is punishable under Section 27(d) of Act - Along with complaint, an application seeking condonation of delay under Section 473 of Cr.P.C. read with Section 5 of Limitation Act was also filed. [Para 13]
Finding of the Court: Sheet anchor of learned High Court Government Pleader to lend support to enormous delay in registering complaint taking recourse of Section 33M of Act would thus tumble down - There was absolutely no necessity to await sanction/permission from Drugs Controller to register complaint as legal sample of drug that was drawn was not of either Ayurvedic, Siddha or Unani - If Drugs Inspector has by taking recourse to a wrong provision of law sought sanction from hands of Drugs Controller to register prosecution, it cannot be said to be condonable as it was a question of jurisdiction - Statutory bar that kicks in terms of Section 468 of Cr.P.C. could not have been condoned by both Courts as it gets at root of matter - In so far as judgments relied on by learned High Court Government Pleader are concerned, they are all distinguishable on facts of those cases without much ado - Apex Court in case of Udai Shankar Awasthi has no doubt held that in exceptional circumstances, Court can condone delay - Apex Court was not considering or interpreting statutory provision akin to or even Section 468 Cr.P.C - Other judgment also follows suit - Issue in case at hand is to be considered on bedrock of statutes which have not been interpreted by Apex Court in aforesaid judgments - Therefore, those judgments would lend no assistance to learned High Court Government Pleader - For reasons rendered supra, it becomes necessary to direct competent authority to register crime in such cases, in quick succession and not resort to red tapism and let alleged guilty go scot-free on plea of limitation - Authority should also necessarily peruse and understand statute for registration of crimes in such matters, as delay will defeat very object of penal action under statute and it is always said that “procrastination is thief of time.”
Result: Petition allowed.

ORDER :

The petitioners are before this Court calling in question entire proceedings in Criminal Miscellaneous No.01 of 2018 which later become C.C.No.39 of 2018 registered for an offence punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940 (‘the Act’ for short).

2. Shorn of unnecessary details, facts in brief that are germane for consideration of the issue in the lis, are as follows :

The 1st petitioner is M/s Emcure Pharmaceuticals Limited, a drug manufacturing company engaged in the manufacture and sale of drugs (hereinafter referred to as ‘the Company’ for short). Petitioner Nos. 2 and 3 who are accused Nos.2 ad 3 are the Managing Director and Director respectively of the said Company. The petitioners are in C.C.No.39 of 2018. The facts that led to the registration of crime are that on 5-01-2012, the Drugs Inspector, Bangalore visits M/s Tulasi Pharma and takes a legal sample of the drug manufactured by the Company, prepares Form No. 17, issues it to the proprietor of M/s Tulasi Pharma and sends the sample so collected for test/analysis under the acknowledgment of the proprietor as required under Section 23 of the Act. On 6.01.2012, the sealed portion of the drug reaches Government Analyst at the Drugs Testing Laboratory, Bengaluru. The procedure stipulated under the Act was followed for drawing up and sending the sample.

3. On 21-07-2012, the Drugs Inspector who had sent the sample for its test receives the report of the drug in terms of Form No.13 from the Government Analyst, Drugs Testing Laboratory, Bengaluru and the report was that “Not of Standard Quality” with respect to “Assay for Folic Acid”. On 24-07-2012, a notice was served upon M/s Tulasi Pharma under Section 18A and 18B of the Act along with original report. On the very day, the proprietor of M/s Tulasi Pharma gives a statement disclosing that it had purchased the said drug from the Company. It is here the Company comes into the picture.

4. On 30-07-2012, the Drugs Inspector served another copy of the test report on the Company in terms of Section 23(4)(iii) of the Act. The Company responds to the said notice. On 2-08-2012, the Drugs Inspector addresses a letter to the Managing Director of the Company, the 2nd petitioner herein seeking certain information with regard to the report which had observed that the drug manufactured by it was not of standard quality. This was replied to by the Company on 5-09-2012 denying the fact that the sample was "Not of standard quality" with respect of "Assay for Folic Acid".

5. On 8.10.2013, the Drugs Inspector submitted details of investigation to the Drugs Controller seeking his permission/sanction to prosecute the Company and the other petitioners herein under the provisions of the Act. Four years and 2 months after submission of the said requisition seeking sanction, the Drugs Controller permits institution of prosecution against the petitioners in terms of his communication dated 8-12-2017. On receipt of the said sanction, the Drugs Inspector registers a private complaint invoking Section 200 of the Cr.P.C. against the petitioners alleging contravention of Section 18(a)(1) which is punishable under Section 27(d) of the Act. Along with the complaint, an application seeking condonation of delay under Section 473 of the Cr.P.C. read with Section 5 of the Limitation Act was also filed. On 20th March, 2018, the concerned Court i.e., the Special Court for Economic Offences condoned the delay of 4 years and 10 months and takes cognizance of the offence.

6. Being aggrieved by the order taking cognizance and issuing of summons to the petitioners, the petitioners knocked the doors of the Sessions Court in Criminal Revision Petition No.323 of 2018 on both i.e., against allowing the application seeking condonation of delay and taking of cognizance. The revision was partly allowed by accepting the application for condonation of delay and rejecting the order taking cognizance with a further direction to the trial Court to proc

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2022 Supreme(Kar) 366

IN THE HIGH COURT OF KARNATAKA AT BENGALURUM.Nagaprasanna, J.M/s Emcure Pharmaceuticals Ltd. and Ors. – PetitionersVersusState of Karnataka at The Instance of Drugs Inspector-1, Rep by Special Public Prosecutor and ors. – RespondentsCriminal Petition No. 6919 of 2022Decided On : 22-09-2022

Point of Law: Section 27 of the Act reads as Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.—Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes.

Cases Referred (1)