CRMMO/81/2011 of D.P.GHOSH Vs STATE on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MMO No. 81 of 2011

Date of decision: 29.12.2011

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Dr. D.P. Ghosh son of Dr. B.P. Ghosh, Senior Vice President (Technical), Albert David Limited, B-12, 13 Meerut Road, Industrial Area Ghaziabad (UP) 201003.

.....Petitioner.

Versus

State of Himachal Pradesh through Drug Inspector, Shimla, Tehsil and district Shimla (HP).

.....Respondent.

Petition under Section 482 of the Code of Criminal Procedure.

Coram

The Hon'ble Mr. Justice V.K. Sharma, J.1 Whether approved for reporting? No.

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For the petitioner:Mr. Neeraj Gupta, Advocate.For the respondent:Mr. Anil Jaswal, Dy. AG.

V.K. Sharma, J.(Oral).

This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') for quashing of Criminal Complaint No. 31-3 of 2003, titled State of Himachal Pradesh vs. Dr. D.P. Ghosh, pending against the petitioner in the Court of the learned Chief Judicial Magistrate, Shimla, under Section 18(a)(i) of the Drugs and Cosmetics Act, 1990, mainly on the ground that due to inordinate delay in launching the 1Whether reporters of Local Papers may be allowed to see the judgment? No.

proceedings the right vested in the petitioner under Section 25(3) and 25(4) was lost and thereby causing grave prejudice to him.2.Factual matrix is as follows. On 06.10.2001, the complainant, Drug Inspector, took the sample of “Ringer Lactate Solution for Injections” IP (500 ml), Batch No. PIA-1459-A manufactured by M/s. Albert David Limited, Ghaziabad, for the purpose of analysis through Shri Sanjeev Kumar Soni, Pharmacist, In-charge of the store of medicines maintained by the Chief Medical Officer, Shimla. In all, 16 bottles of the said injections were taken and each bottle was sealed with the official seal of the Drug Inspector and was further marked by observing the codal formalities. Four portions comprising of four bottles in each portion were made, out of which one portion alongwith Form No. 17 was given to the said Shri Sanjeev Kumar Soni, Pharmacist In-charge of the store against written acknowledgment. He was also offered a sum of ` 187.20 as cost of the sample, which he refused to receive vide written acknowledgment, Annexure C. One sealed portion of the sample alongwith Form No. 18 was sent to the Government Analyst, Composite Testing Laboratory, Kandaghat, alongwith seal impression used for sampeling the same and report, Annexure F, was obtained. The Drug Inspector also informed the Chief Medical Officer, Shimla, regarding the alleged substandard nature of the drug alongwith analysis report vide Annexure G. In response thereto the Chief Medical Officer sent reply and submitted the purchase invoice vide which the drug in question was purchased by his office. The manufacturer of the Drug, M/s. Albert David Limited, Ghaziabad, was also informed alongwith a copy of the analysis report and a sealed portion of the drug in question vide Annexure I. In response thereto the company sent letters dated 11.06.2002, 27.06.2002, 03.07.2002 and 29.07.2002 requesting for supply of the report of the Government Analyst. Accordingly, the company was supplied photocopy of the said report. However, the company informed that they did not agree with the report of the Government Analyst, Kandaghat and requested for re-analysis of the sample by sending the same to the Central Drugs Laboratory, Calcutta at their cost and expenses.

3. I have heard the learned counsel for the petitioner and learned Deputy Advocate General and perused the record.

4. It would be seen from the records that though the sample was lifted by the Drug Inspector as early as 06.10.2001, yet for the reasons best known to him, the complaint was presented to the court only on 29.03.2003 and more so when the name of the manufacturer of the drug, i.e., M/s. Albert David Limited, Ghaziabad, was revealed to him by the aforesaid Shri Sanjeev Kumar Soni on the very day the sample was taken. The record further reveals that process was issued against the petitioner in the complaint only on 22.06.2004 pursuant to which he appeared before the learned trial Magistrate on 21.07.2004. However, by that time the shelf life (expiry date) of the sample had already come to an end in the month of May, 2004, as is specifically indicated in Column No. 3 in the table contained in Form No. 17, Annexure P-2, to the petition (Annexure–B to the complaint).

5. In view of the above, the complaint against the petitioner cannot be permitted to proceed further as such a course would amount to gross misuse of process of law and is liable to be quashed on the sole ground that his valuable right under Section 25(3) and 25(4) of the Drugs and Cosmetics Act has been lost owing to delayed filing of the complaint for which no explanation, what to say of a reasonable explanation, is coming forth, as has been held by Hon'ble Supreme Court in Medicamen Biotech Limited and another vs. Rubina Bose, Drug Inspector, (2008) 7 Supreme Court Cases 196, wherein it has been held as under vide para 19 of the judgment:

“19.In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred as the appellant had avoided service of summons on it till 9-5-2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed. Likewise, we observe that the requests for retesting of the drug had been made by the appellant in August/September 2001 as would be clear from the facts already given above and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred as the appellant had avoided service of summons on it till 9-5-2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed. Likewise, we observe that the requests for retesting of the drug had been made by the appellant in August/September 2001 as would be clear from the facts already given above and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting well within time. We are, therefore, of the opinion that the facts of the case suggest that the appellants have been deprived of a valuable right under Sections 25(3) and 25(4) of the Act which must necessitate the quashing of the proceedings against them.”

6. Still further there is not even a demur in the complaint that the petitioner “at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company”, as required under Section 34 of the Drugs and Cosmetics Act, 1990. The complaint is also liable to be quashed on this ground as well, as has been held by this court in M/s. Merind Limited vs. State of H.P. and others, 2006(2) Shimla Law Cases 176, vide para 5 of the report, which reads as under:

Facts

“5.Applying the aforesaid ratio to the facts of this case and clearly noticing that in the entire complaint there is no allegation or a statement (of fact) that the aforesaid accused was incharge of the company and/or was also responsible to the company for the conduct of its business at the time when the alleged offence was committed, the only inescapable conclusion which emerges is that such allegation/statement of fact being a sine qua non for the launching and maintainability of the prosecution against the petitioner-accused, and it not being there in the complaint, the proceedings against the petitioner-accused at the threshold are held as not being maintainable and thus these deserve to be quashed. Actually a careful perusal of the complaint also reveals that what to speak of the aforesaid specific allegation, even a bald statement has not been made in this complaint about the description of the petitioner-accused, or any role having been and clearly noticing that in the entire complaint there is no allegation or a statement (of fact) that the aforesaid accused was incharge of the company and/or was also responsible to the company for the conduct of its business at the time when the alleged offence was committed, the only inescapable conclusion which emerges is that such allegation/statement of fact being a sine qua non for the launching and maintainability of the prosecution against the petitioner-accused, and it not being there in the complaint, the proceedings against the petitioner-accused at the threshold are held as not being maintainable and thus these deserve to be quashed. Actually a careful perusal of the complaint also reveals that what to speak of the aforesaid specific allegation, even a bald statement has not been made in this complaint about the description of the petitioner-accused, or any role having been played by him with respect to the affairs of the company.”

7. In view of the above, the petition is allowed. Consequently, the complaint Case No. 31-3 of 2003, titled State through Drug Inspector vs. D.P. Ghosh under Section 18(a)(i) of the Drugs and Cosmetics Act, 1948, pending against the petitioners in the Court of the learned Chief Judicial Magistrate shall stand quashed.

8. Before parting, this Court cannot help, but observe that the concerned Drug Inspector, who is stated to be one Shri Sher Singh, had been grossly negligent verging on criminal neglect of his duties in filing the complaint after about two and half years from the date of taking of the sample, for reasons best known to him, but beyond the comprehension of this Court. Accordingly, it is ordered that the learned Registrar General of this Court shall send a copy of this judgment to the Principal Secretary (Health) to the Government of Himachal Pradesh for appropriate action against the said official on administrative side as may be deemed appropriate in the facts and circumstances of the case.

9. The petition, so also pending Cr.MP(s), shall stand disposed of in the above terms.

29[th] December, 2011

(virender)

(V.K. Sharma) Judge