The order of issue of process, without application of mind and considering the material placed on record, definitely affects the rights of the party, such order can be treated as 'intermediate order' or 'interim order'.

Headnote:
DRUGS AND COSMETICS ACT - SECTION 397 OF THE CODE OF CRIMINAL PROCEDURE - INTERLOCUTORY ORDER - ISSUE OF PROCESS - REVISION - SCOPE AND FUNCTION - REPORT OF CENTRAL DRUGS LABORATORY - FINALITY - JURISDICTION OF REVISIONAL COURT.
Fact of the Case:

The State of Maharashtra challenged the order of the First Addl. Sessions Judge, Akola, quashing the proceedings of Criminal Case No. 209 of 1991 pending in the Court of J. M. F. C., Nagpur, and the order of issue of process against the non-applicants accused under Sections 18(a)(1) read with Sections 17,17A and 17B of the Drugs and Cosmetics Act.
Finding of the Court:

1. The order taking cognizance and issuing process is an interlocutory order and thus, no revision against the interlocutory order is tenable under Section 397 of Cr. P.C. 2. The order of issue of process, without application of mind and considering the material placed on record, definitely affects the rights of the party, such order can be treated as 'intermediate order' or 'interim order'. 3. The report of the Central Drugs Laboratory, Calcutta, is final and conclusive evidence of the facts stated therein, but not of any opinion expressed therein. 4. The learned revisional Court committed an error in considering the material which was not before the trial Court, i.e. report of the analysis by Central Drugs Laboratory.
Issues: 1. Whether the order of issue of process is an interlocutory order? 2. Whether the report of the Central Drugs Laboratory, Calcutta, is final and conclusive? 3. Whether the learned revisional Court erred in considering the material which was not before the trial Court?
Ratio Decidendi: 1. The term 'interlocutory order' in Section 397(2) of the Code of Criminal Procedure has been used in a restricted sense and not in a broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. 2. The report of the Central Drugs Laboratory, Calcutta, is final and conclusive evidence of the facts stated therein, but not of any opinion expressed therein. 3. The learned revisional Court committed an error in considering the material which was not before the trial Court, i.e. report of the analysis by Central Drugs Laboratory.
Final Decision: The judgement and order dt/- 8th March, 1994, passed by the First Addl. Sessions Judge, Akola in Criminal Revision No. 60/93, is quashed and set aside. The matter is remitted to trial Court to consider and decide it according to law, not being influenced by the observations of the learned lower Revisional Court made in its judgement and order dt/- 8-3-1994 and as well the observations of this Court.

JUDGEMENT

1. In this criminal revision, the State of Maharashtra through Drugs Inspector, Food and Drug Administration, Maharashtra State, Akola, took exception to the order of First Addl. Sessions Judge, Akola, passed in Criminal Revision No. 60/93, entertaining the criminal revision challenging the order of issue of process against the non-applicants and consequently quashing the proceedings of Criminal Case No. 209 of 1991 pending in the Court of J. M. F. C., Nagpur.

According to the learned counsel for applicant, the issue i.e. "issue of process" is an interlocutory order and the Same is not subject to revision under Section 397 of the Code of Criminal Procedure, is involved in the present application and same issue is concluded and determined by the judgement of this Court in the case of Uttam Krishnaji Levarkar v. State of Maharashtra (1995 (1) Mah. LJ 95) (Per R. M. Lodha, J.), wherein it has been held that

"Order issuing process on ex parte consideration of the complaint and material under Section 204 is an interlocutory order and is not subject to revision under Section 397 Criminal Procedure Code." Learned Brother relied on the case of K. M. Mathew v. State of Kerala (AIR 1992 SC 2206) : (1992 AIR SCW 2666 : (1992 Cri LJ 3779) (SC). Dr. Kulkarni, the learned counsel for the non-applicants, vehemently submitted that the earlier decisions of this Court, other High Courts and the Hon'ble Supreme Court, are to the effect that "the order issuing process is not an interlocutory order because it affects the right of the party." were not brought to the notice of the Court. Thus, the judgement is per-incuriam and deserves fresh consideration by this Court and if this Court is not convinced, and it so deserves be referred to the larger Bench of this Court in view of the earlier decisions of this Court and of the Apex Court.

Shri L. G. Deshpande, learned A. P. P. and Dr. Kulkarni were heard at length.

2. The respondent No. 1 M/s. Plethico Pharmaceuticals deals in manufacturing of various products including drugs known as Ampicilline and Cloxacilline under valid licence from the Competent Authority. On 3rd May, 1991, the Drugs Inspector, Akola, took out a sample of Ampicilline and Cloxacilline having batch No. TEN B No. 0056 manufactured on 10/90 and having expiry date 3/92. One of the samples was sent for analysis to Maharashtra State Drugs Control Laboratory, Bombay on 4-7-1991. The report of the analysis dt/- 17-7-1991 was received by Drugs Inspector on 1-8-1991. The copy of the report was forwarded to the accused by the Drugs Inspector vide letter dt/- 3-8-1991. Accused received the same on 8-8-1991. On 14-11-1991, a letter was received from the accused with the request to send another sample to be sent to Central Laboratory, Calcutta. According to the accused, earlier letter was sent to the same effect on 2-9-1991. The Drugs Inspector filed the complaint in the Court of Judicial Magistrate, First Class, Balapur on 24-12-1991. An application was moved by the Drugs Inspector requesting the Judicial Magistrate, First Class, Balapur, to forward another sample to the Central Drugs Laboratory, Calcutta for test and report. On 24th December, 1991 itself, the learned Judicial Magistrate, First Class, Balapur, registered the case as Criminal Case No. 209/91 and issued process to the non-applicants for the offence punishable under Sections 18(a)(1) read with Sections 17,17A and 17B of the Drugs and Cosmetics Act. After the receipt of the report of Analyser, specifying that the drug is sub-standard with further report that the contents of cloxacilline is less than prescribed amount of 42.61% and after obtaining permission from the Competent Authority, the complaint was filed in the Court of J. M. F. C., Balapur.

3. The non-applicants/accused received the summons of the Court on 25-2-1993 directing them to remain personally present before the Judicial Magistrate, First Class, Balapur, on 29-3-1993. Being aggrieved by the order of the issue o

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Judicial Analysis

1995 Supreme(Bom) 344

BOMBAY HIGH COURTB. U. WAHANE, J. STATE OF MAHARASHTRA THROUGH V.VERSUSK. BIYANI, APPLICANT V. M/S. PLETHICO PHARMACEUTICALS, NON APPLICANTS.Cri. Rev. Appln. No. 105 of 1994,Decided On : 7 -8 -1995

The order of issue of process, without application of mind and considering the material placed on record, definitely affects the rights of the party, such order can be treated as 'intermediate order' or 'interim order'.

Judicial Analysis

BOMBAY HIGH COURT
B. U. WAHANE, J.
STATE OF MAHARASHTRA THROUGH V.
VERSUS
K. BIYANI, APPLICANT V. M/S. PLETHICO PHARMACEUTICALS, NON APPLICANTS.
Cri. Rev. Appln. No. 105 of 1994,
Decided On : 7 -8 -1995