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2019 Supreme(J&K) 300
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Rashid Ali Dar, J.
Harihar Nath Gandotra – Appellant
Versus
State of J&K - Respondent
CRMC No.217/2015, IA Nos.01/2015 and 01/2018
Decided on 30.10.2019
Advocate Appeared:
For the Petitioner(s):Mr. Rajnesh Raina, Advocate
For the Respondent(s): Mr. Mir Suhail, AAG, vice Mr. Shah Aamir, AAG
Headnote:
Criminal Procedure Code, 1973 - section 266 to 277 - Drug and Cosmetic Act, 1940 - Section 28-A – Offence of commission - Complaint is also sought to be quashed - In order to appreciate contentions raised in terms of instant petition brief factual narration of facts may be pertinent herein - Respondent herein presented complaint before learned Chief Judicial on December wherein commission of offence Section read with Section Drug and Cosmetic for short Act)was alleged to have been made by Cecil Pharmaceuticals allegations put forth in this regard in the complaints are gathered from certified copy placed on record of file of Principal Sessions – Held, Documents referred to above and which according to complainant and Court pointed that Raman been either Directors or otherwise related with company do not make out that they while running affairs of the company and had not obeyed instructions of complainant Drug Inspector - Proceedings initiated and pending presently against petitioner herein are patently abuse of process of law and so liable to be quashed - For what is stated above court of opinion that petitioner herein has made out case for exercising power Section for quashing proceedings initiated and presently pending against petitioner - Consequently order dated December passed by Chief Judicial and order dated of passed by Principal Sessions Judge Lenin criminal complaint titled State through Drug Inspector Cecil Pharmaceuticals are quashed - complaint as presented before Court of learned Chief Judicial along with material available on trial record shall be remitted back to said Court for passing appropriate orders in accordance with law – Respondent Drug Inspector is given liberty to place before Magistrate further material to enable Magistrate to record satisfaction in terms of Section and scope for issuance process against person against whom liability could be fastened either for misbranding of drug or thereafter for infraction instruction given for parting with information - Observations made herein shall not be treated as an opinion on merits which necessitate to hold an inquiry or trial – Order accordingly
Judgment
Rashid Ali Dar, J.—In this petition, proceedings initiated pursuant to an order passed on 20th of December, 2012, by Chief Judicial Magistrate, Leh, on a complaint filed by respondent herein are sought to be quashed, so far same pertains to the prosecution against the petitioner. Further prayer is made that the order passed on 16th of December, 2014 by the same Court in the said complaint be also quashed. Order dated 12th of August, 2015 passed by learned Sessions Judge, Leh, in the said complaint is also sought to be quashed.
2. In order to appreciate the contentions raised in terms of the instant petition, a brief factual narration of the facts may be pertinent herein. The respondent herein presented a complaint before learned Chief Judicial Magistrate, Leh on 20th of December, 2012, wherein commission of offence under Section 28-A read with Section 18-B of Drug and Cosmetic Act, 1940 (for short the Act), was alleged to have been made by Cecil Pharmaceuticals Pvt. Ltd. Some of the allegations put forth in this regard in the complaint, as are gathered from the certified copy placed on record of file No.3 of 2014 of Principal Sessions Judge, Leh, are:
1. The applicant notified as Drugs Inspector District Leh vide SRO 288 dated 28.8.1989 lifted a legal sample of drug Amocil Oral Suspension batch No.ALS-1001 manufactured by M/S Cecil Pharmaceuticals Pvt. Ltd. Plot No.2, 3, 8, 9, EPIP, SIDCO, Katholi, Bari Brahmana, Jammu – 18133 – from the Drug Store of CMO Leh on 11.10.2010 in the presence of Sh. Rigzen Wangchuk Storekeeper for testing/analysis under Section 22(b)(i) of the Drugs and Cosmetics Act, 1940 and the rules there under.
(The applicant is the complainant Drug Inspector-respondent herein)
2. The sample was divided into four portions and each portion was sealed in front of Sh. Rigzen Wangchuk, the Drug Storekeeper, Chief Medical Officer, Leh, with the impression and seal of the Drug Inspector on each sample portion the Drug Storekeeper was also allowed to put his signature on each portion of the sample as required under Section 23(3) of the Drugs and Cosmetics Act, 1940. Accordingly, the intimation Form-17 duly filled was supplied to him along with the one portion of the sample of the Drug as required under section 23(3) and 23(4) of the Drugs and Cosmetics Act, 1940.
3. Another portion of the sample of the drug was sent to Government Analyst Drug Laboratory Dalgate Srinagar along with the memorandum to Government Analyst in Form-18 on 20.02.2011 for testing/analysis as required under section 23(4)(i) of the Drugs and Cosmetics Act, 1940 and the rules there under
4. The Government Analyst Drug Laboratory Dalgate, Srinagar, has declared the sample of drug as note of standard quality vide their test report No.L/DA/2011-12/19 dated 15.04.2011 for the reason that label does not bear a red vertical line on the left said of it hence “Misbranded”.
5. Sh. Rigzen Wangchuk, the Drug Storekeeper Chief Medical Officer, Leh, was informed about the test report and supplied with the original test report as required under section 25(2) of the Drugs and Cosmetic Act, 1940 and the rules there under, through this office memo vide No.DI/L/Testing/Sample/98/4057-60 dated 27.04.2011.
6. The Chief Medical Officer, Leh, through their reply vide No.CMOL/1482-85 dated 24.05.2011 has disclosed the name of M/S Cecil Pharmaceuticals Pvt. Ltd. Plot No.2, 3, 8, 9, EPIP, SIDCO, Kartholi, Bari Brahmana, Jammu – 18133, from whom the said drug in question was purchased vide invoice No.0545 dated 03.02.2010.
7. Accordingly, M/S Cecil Pharmaceuticals Pvt. Ltd. Plot No.2, 3, 8, 9, EPIP, SIDCO, Kartholi, Bari Brahmana, Jammu – 18133, was issued memo vide DI/L/Testing/ Sample/98/1471-74 dated 26.5.2011 and was informed about the test report and supplied with the original test report bearing No.L/DA/2011-12/19 dated 15.04.2011, as required under section 25(2) of the Drugs and Cosmetic Act, 1940 and the rules there under. The manufacturer was also asked
