IMPORTANT POINT : Transfer of complaint – If a complaint petition as well as police case launched for same occurrence against same accused is allowed to proceed independently, then in that event, there would be flagrant violation of mandate of law.

Judgment :

Transfer of Complaint, bearing File No.01/A, titled as State through Drug Inspector v. Akhil Gadoo and others, from the court of Additional District & Sessions Judge (TADA/POTA) Srinagar, designated Special Court under Drugs & Cosmetics Act, 1940 (for brevity “court below”) to the court of Special Judge (Anti-Corruption Cases), Jammu, is implored for in the application in hand.

2. The case summarized by the applicant is that applicant is duly registered global pharmaceutical company operating since 1969, and manufacturing various drugs. It is being maintained that applicant came to know through media reports that certain samples of drugs lifted from government hospitals had been declared as “Not of Standard Quality” by the Government Analyst of the Drugs Laboratory under the Drugs & Food Control Organisation, which included the drug, named as Maximizin 625 (Amoxicillin Trihydrate and Potassium Clavunate) Batch no.PBT 1583, allegedly manufactured by applicant-company and supplied by M/s Lifeline Pharmaco Surgicals. It is being claimed by applicant that he enquired and found that M/s Lifeline Pharmaco Surgicals – proforma respondent herein, has used forged, fabricated and tampered authorisation certificate/reports of applicant-company, to avail the tender for supply of the aforesaid drugs to government hospitals and that in this regard applicant-company also issued a clarification that applicant has not authorised any party directly or indirectly to supply the above drug to the hospitals in J&K.

It is being further averred that in view of seriousness of the matter, the Government constituted a three members Committee vide Order no. 239-HME of 2013 dated 4th April 2013, which reported that M/s Lifeline Pharmaco Surgical used forged, fabricated and tampered authorisation certificate/reports of applicant-company and that in pursuance of communication no.PS/CS/H&ME/76/2013 dated 20th April 2013, an FIR No.10/2013 came to be registered in police station Crime Branch Jammu for commission of offences punishable under Sections 274, 420, 465, 467, 468, 471, 120-B RPC read with Section 5(2) P.C. Act, Section 27 of Drugs and Cosmetics Act, 1940. Notwithstanding this fact, it is next stated by applicant, the Drugs Departments without waiting for completion of investigation by the Crime Branch, hastened to file a complaint before the court below, implicating therein applicant-company as one of the accused in the complaint with the allegations that applicant has conspired with other accused persons in manufacture, marketing and distribution of spurious drugs for commission of offences under Section 17-B, 18 (a) (I) read with Section 27(a) of Drugs & Cosmetics Act 1940.

It is being further averred that applicant challenged cognisance order before this Court in a petition under Section 561-A Cr.P.C. bearing 561-A No.66/2013, in which proceedings against applicant vide order dated 3rd May 2013 were stayed and the said petition was subsequently heard along with PIL No.06/2013, which was disposed of vide order dated 23rd May 2013, asking petitioner to appear before the court below and agitate all the grounds taken in the said petition.

According to applicant, the Crime Branch has now completed the investigation in case FIR No.10/2013 and filed charge-sheet before the court of Special Judge (Anti-Corruption) Cases, Jammu, against 14 persons, establishing commission of offences under Section 274, 420, 465, 467, 468, 471, 120-B RPC read with Section 5(2) P.C. Act and 27 Drugs & Cosmetics Act 1940. It is being claimed by applicant that Crime Branch has not found the role of applicant in preparation or supply of fake drugs and, therefore, absolved it of criminal charges and that in view of filing of charge-sheet by the Crime Branch, the complaint filed by Drug Inspector before the court below cannot proceed as there cannot be two separate trials with respect to the offences arising out of the same transaction which may result into a contradictor