The Magistrate must provide a reasoned order reflecting application of mind when summoning accused, ensuring sufficient grounds exist for proceeding with the case.

JUDGMENT :

Rakesh Kainthla, J.

The petitioner has filed the present petition for quashing of complaint No.05/2021 dated 18.08.2021, titled Union of India Vs. M/s. Nepture Life Sciences & Ors. pending before the learned Judicial Magistrate First Class, Nalagarh (learned Trial Court). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present petition are that the complainant, Drug Inspector, filed a complaint against the accused for the commission of offences punishable under Section 18(a)(i) read with Section 16 punishable under Section 27(d) of the Drugs & Cosmetics Act, 1940. It was asserted that the Drug Inspector drew the sample of the Permetherin Lotion and sent it to the Government analyst, Regional Drugs Testing Laboratory, Chandigarh, for analysis after completing the codal formalities. The Government Analyst issued a report declaring that the sample was not of standard quality as it did not conform to the claim as per patent and propriety in respect of assay of Permetherin. The Drug Inspector issued the notices to the manufacturer who recalled the drug from the market. The manufacturer also replied that the control sample was tested in the laboratory, and it was found to be of standard quality. One sealed portion of the sample was submitted to the Court for sending it to the Director, Central Drugs Laboratory, Kolkata, for analysis. The Director, Central Drugs Laboratory, Kolkata, issued a test report stating that the sample was not of standard quality because it did not conform to the claim with respect to assay of Permetherin. The Drugs Inspector obtained permission and filed the complaint before the Court.

3. Being aggrieved by the filing of the complaint, the petitioners have filed the present petition for quashing it. It was asserted that the sample was drawn on 19.05.2017 and was sent to the Government Analyst, Chandigarh, on 31.05.2017 after the lapse of 12 days. The copy of the memorandum in Form 1 and the specimen impression of the seal were to be sent separately by registered post. The Drugs Inspector did not say how the sample was sent for analysis. There is a violation of Section 34 of the Drugs & Cosmetics Act because it was not mentioned in what manner, petitioners Nos. 2 and 3 were in charge and responsible for the Company for its conduct. No gazette notification was issued for appointing the Drugs Inspector for the specified area of Himachal Pradesh. The complaint was filed after the expiry of the shelf life of the drug. The valuable right of the petitioner was violated. There was nothing in the complaint regarding the storage condition of the drug. There was a variation in the report of the Government Analyst and the Central Drugs Laboratory, which suggests that the storage conditions were not proper. The sanction was not properly granted. The summoning order is not proper. The preliminary inquiry was not conducted. The complaint was time-barred. There were discrepancies in the investigation. The cognisance could not have been taken by the learned Magistrate. Therefore, it was prayed that the present petition be allowed and the complaint pending before the learned Trial Court be quashed.

4. The petition is opposed by filing a reply making a preliminary submission regarding the lack of maintainability. The contents of the petition were denied on merit. It was asserted that when the offences are committed by the Company, every person who is responsible for the commission of the offence is liable to be proceeded against and punished accordingly. The Company provided the record mentioning the name of the Managing Director and the Director. The complainant rightly proceeded against them as per the law. The matter is pending before the learned Trial Court, which has to apply its judicial mind to the complaint. The complaint was filed as per the provisions of the Drugs and Cosmetics Act.