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2025 Supreme(Bom) 712
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR
ANIL S. KILOR, J.
Mahadeo S/o Shankar Jadhav - Appellant
Versus
The State of Maharashtra - Respondents
Criminal Application (Apl) No.1623 of 2022
Decided on : 19-03-2025
Advocate Appeared:
For the Appellant :Mr A.A. Naik, Senior Advocate a/b Shri R.R. Deo, Adv. for Applicants
For the Respondent: Mr N.R. Rode, A.P.P. for Non-applicant/State.
The court emphasized that a complaint against directors must include specific averments of their involvement in the alleged offense, and procedural non-compliance can prejudice the accused's defense.
Headnote:
(A) Drugs and Cosmetics Act, 1940 - Sections 27(d), 28-A, 18(a)(i), 25(3), 25(4) - Criminal complaint for manufacturing substandard drugs - The complaint was quashed due to non-compliance with statutory provisions regarding the analytical report and the right to adduce evidence - The delay in providing the report prejudiced the applicants' defense. (Paras 4, 10, 62, 63)
(B) Criminal Procedure Code, 1973 - Section 482 - The court emphasized the need for a prima facie case before issuing process against individuals in a corporate context, highlighting the necessity of specific averments regarding vicarious liability. (Paras 12, 15, 66)
Facts of the case:
The applicants, directors of a pharmaceutical company, sought to quash a complaint alleging their responsibility for manufacturing substandard drugs, arguing procedural non-compliance and lack of evidence against them.
Findings of Court:
The court found that the complaint lacked necessary averments to establish the directors' liability and that the delay in the analytical report denied the applicants their right to contest it.
Issues: The main issues were whether the complaint against the directors was maintainable without specific averments of their involvement and whether the delay in the analytical report prejudiced the applicants' rights.
Ratio Decidendi: The court ruled that the lack of timely compliance with statutory requirements and the absence of specific allegations against the directors rendered the complaint unsustainable, emphasizing the need for a prima facie case before proceeding.
Result: The Criminal Application is allowed in terms of prayer clauses (A) to (E).
JUDGMENT :
ANIL S. KILOR, J.
1. Heard.
2. RULE. Rule is made returnable forthwith. Heard finally by consent of the parties.
3. The applicant No.1 is the Managing Director and applicant No.2, is a Director of M/s Care Formulator Private Limited, applicant No.3, have approached this Court by way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) by making following prayers :
“(A) Quash and set aside the criminal complaint being Regular Criminal Case No.20/2002 dated 14.01.2002 pending on the file of Chief Judicial Magistrate, Yavatmal;
(B) Quash and set aside the impugned order of issuance of process dated 14.01.2002 passed by the learned Chief Judicial Magistrate, Yavatmal in Regular Criminal Case No. 20/2002;
(C) Quash and set aside the impugned order dated 06.07.2022 passed by the learned Sessions Judge, Yavatmal, in Criminal Revision Application No.50/2018 (Annexure “H”);
(D) Quash and set aside the impugned order dated 05.09.2018 passed by the learned Chief Judicial Magistrate, Yavatmal in Regular Criminal Case No. 20/2002, rejecting the application for discharge preferred by the applicants;
(E) During the pendency and final disposal of the application, stay all further proceedings in Regular Criminal Case No.20/2002 pending before the learned Chief Judicial Magistrate, Yavatmal (Annexure-C);”
4. The brief facts of the present case are as under :-
The respondent filed a complaint namely Regular Criminal Case No.20 of 2002, for the offences punishable under Section 27(d) and 28-A read with Section 34 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “the Act of 1940”) before the Chief Judicial Magistrate, Yavatmal.
5. It is the case of the complainant that, he visited the premises of M/s Anup Pharmaceuticals situated at shop No.25, Dawa Bazar, Dutta Chowk, Yavatmal, and drew a sample of Careclox 500 mg. Capsules, manufactured by the applicant No.3, for the purpose of test and analysis as per the procedure laid down under Section 23 of the said Act.
6. It is stated that, on 01.02.2001, a Memorandum in Form-18 dated 01.02.2001 was prepared in triplicate and original copy of the Form-18 along with one sealed counter portion of the said sample was sent to the Government Analyst, Drugs Control Laboratory, Bandra East, Mumbai.
7. On 16.10.2001, the complainant received the analytical report in Form-13 dated 08.10.2001, and it was reported that “Not of Standard Quality”. It further states that, “Content of Cloxacillin in the sample is less (14.63%) than the labelled amount”. Accordingly, the complaint came to be filed.
8. Shri Naik, learned Senior Advocate argues that, the learned Chief Judicial Magistrate committed an error in issuing process, ignoring the non-compliance of provisions of the Act of 1940 and the Drugs Rules, 1945 (hereinafter referred to as “Rules of 1945”).
9. He further submits that, despite the objection to the analyst report dated 08.10.2001, and a request made by the authorized Competent Technical Person (Manufacturing) to adduce the evidence against the said analytical report, the same was not considered and such a right was denied.
10. Shri Naik, learned Senior Advocate has taken this Court through various provisions, namely Sections 23 and 25 of the Act of 1940 and Rule 45 of the Rules of 1945, to point out the right of the applicants to lead evidence against the analytical report and further the timeline fixed for providing such analytical report to show non- compliance of the said provisions. It is argued that such non-compliance vitiates the proceeding and to buttress this submission has placed reliance on the judgment of the Hon’ble Supreme Court of India in the case of Medicamen Biotech Limited and another vs.. Rubina Bose, Drug Inspector, (2008) 7 SCC 196.
11. As regards the right to adduce evidence to counter the analytical report, he has placed reliance on a judgment of the Coordinate Bench of this Court in the case of P.R. Naik and anot
