The judgment emphasizes the requirement for evidence-based satisfaction for impleading an accused under Section 32A of the Drugs and Cosmetics Act and highlights the need for courts to adhere to proper legal procedures.

JUDGMENT :

SANJAY DHAR, J.

1. The petitioner has challenged the complaint filed by respondent Drugs Inspector alleging commission of offences under section 18(a)(i) of the Drugs and Cosmetics Act, 1940, as also order dated 10.10.2017, by virtue of which the Learned Chief Judicial Magistrate Pulwama, has impleaded the petitioner as an accused and issued process against him.

2. As per the record, respondent Drugs Inspector had filed a complaint inter alia against the Managing Director and proprietor of M/s. Haustus Biotech Pvt. Ltd, alleging therein that a sample of the drug, namely, Menthocare-D was lifted from the premises of M/s. Guru Nanak Pharmacy, Diver Tral, for testing and analysis. The said sample, upon analysis by the Government Analyst, was found to be not of standard quality. During investigation, it was found that the drug in question has been manufactured by M/s. Haustus Biotech Pvt. Ltd. Tahliwal Una, Himachal Pradesh. At the instance of the manufacturing company, the sample, under the direction of concerned Judicial Magistrate, was sent to Central Drugs Laboratory, Kolkata, for re-analysis. After reanalysis of the sample, it was reported by the Central Drugs Laboratory, Kolkata, that the sample is not of standard quality. Accordingly, the prosecution was launched against the manufacturer, suppliers and the retailer of the drug in question.

3. Initially the petitioner was not impleaded as an accused in the complaint but during the pendency of the complaint, learned trial Magistrate vide impugned order dated 10.10.2017 observed that the accused company has been sold to the petitioner and, as such, he is required to be impleaded as an accused. Accordingly, vide the aforesaid order, the petitioner has been impleaded as an accused in the complaint.

4. The petitioner has raised a number of grounds to challenge impugned complaint and the proceedings emanating therefrom but the main grounds that have prevailed during the course of arguments are that the petitioner has been impleaded as an accused in the complaint without there being any evidence against him and that the Learned Magistrate, while impleading the petitioner as an accused, has not followed the procedure prescribed under law. It has also been contended that there are no allegations against the petitioner in the impugned complaint, inasmuch as it is nowhere stated in the complaint that the petitioner was the person responsible for conducting the day-to-day business of the company. It is further contended that the company, of which the petitioner is the Director, has not been impleaded as an accused and, as such, the complaint cannot proceed against the petitioner.

5. The respondent/complainant in his reply narrated the facts alleged in the impugned complaint and has submitted that the petitioner has avoided his appearance before the Trial Magistrate, as a consequence whereof non-bailable warrants were issued against him. It has been contended that proper procedure was adopted by the learned Trial Magistrate while impleading the petitioner as an accused.

6. Heard learned counsel for the parties and perused the material on record including the trial court record.

7. At the very outset it has been contended by learned counsel for the petitioner that the Learned trial Magistrate, while impleading the petitioner as an accused, has not followed the proper procedure provided under law. It has been submitted that before impleading a person as an accused in a complaint relating to offences under Drugs and Cosmetics Act, the court has to record satisfaction as to the involvement of the proposed accused and the said satisfaction has to be recorded on the basis of the evidence adduced in the court. According to the learned counsel, no such satisfaction has been recorded by the Learned Trial Magistrate while impleading the petitioner as an accused.

8. In order to test the merits of this contention, we need to notice the provisions contained in Section 32A of the Drugs and Cosmetics