HASMUKHLAL D. VORA & ANR. versus THE STATE OF TAMIL NADU on 16 December 2022

[2022] 16 S.C.R. 113

HASMUKHLAL D. VORA & ANR.

v.

THE STATE OF TAMIL NADU

(Criminal Appeal No. 2310 of 2022)

DECEMBER 16, 2022

[KRISHNA MURARI AND S. RAVINDRA BHAT, JJ.]

Code of Criminal Procedure, 1973: s.482 – Quashing ofCriminal complaint – Before High Court, appellant sought forquashing of complaint filed against him for contravening provisionof Drugs and Cosmetics Act 1940 and Drugs and Cosmetics Rules1945, which was dismissed – On appeal, Held: The Court, whileexercising its power under s.482 only has to consider whether ornot the allegations in the complaint disclose the commission of acognizable offence – Quashing of a criminal complaint must bedone only in the rarest of rare cases but still it is the duty of theHigh Court to look into each and every case with great detail toprevent miscarriage of justice – In the instant case, no stock ofimpugned substance was found in the premises of the appellants –Even the impugned substance has been categorized as a bulk foodsubstance falling under the definition of food as per s.3(1)(j) of theFood Safety and Standards Act, 2006 – The alleged substance isnot included as a drug in the Indian Pharmacopoeia which furtherproves that it does not require license u/the Drugs and CosmeticsAct, 1940 – Further, there has been a gap of more than four yearsbetween the initial investigation and the filing of the complaint,and even after lapse of substantial amount of time, no evidence hasbeen provided to sustain the claims in the complaint – Moreover,respondent has provided no explanation for the extraordinary delayof more than four years between the initial site inspection, the showcause notice, and the complaint – While inordinate delay in itselfmay not be ground for quashing of a criminal complaint, however,unexplained inordinate delay of such length must be taken intoconsideration as a very crucial factor as grounds for quashing acriminal complaint – Hence, proceeding pending against appellantsto be quashed – Drugs and Cosmetics Act 1940.

113

A

B

CDEFG

H

114SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. For the quashing of a criminal complaint, theCourt, when it exercises its power under Section 482 Cr.P.C.,only has to consider whether or not the allegations in the complaintdisclose the commission of a cognizable offence. The Respondent,Bin the impugned complaint, stated that during the inspection ofthe Appellants’ premises, it was found that the Appellants hadpurchased 75 kg (as 3 x 25 kg packets) of the impugned substance.However, no stock of the impugned substance was found on thepremise of the Appellants. [Paras 8 and 12][118-E-F; 122-A-B]

C2. Upon perusal of the legal nature of the impugnedsubstance, the impugned substance has been categorized as abulk food substance falling under the definition of food as perSection 3(1)(j) of the Food Safety and Standards Act, 2006. Theimpugned substance has specifically been mentioned as a foodingredient in Serial No.4(ii) of the Schedule-I of the Food SafetyDand Standards Regulations, 2016. The alleged substance is notincluded as a drug in the Indian Pharmacopoeia. The fact that itis mentioned as “food” as per Section 3(1)(j) of the Food Safetyand Standards Act, 2006, further only proves that the impugnedsubstance does not require a specific license under the DrugsEand Cosmetics Act, 1940. [Paras 16 and 17][122-E-F]

3. Respondent has made no effort to prove that the allegedsubstance is only a drug and not a food manufacturing substance.No scientific evidence or otherwise has been furnished to provethat the alleged substance is solely used for manufacturing drugFand not food items. Prima Facie, due to the lack of evidenceadduced by the Respondent in the four-year period between theinitial enquiry and the complaint, this court cannot presume thatthe alleged substance can only be classified as a “drug”. If it isassumed that the impugned substance is solely used for drugmanufacture, even then, the Appellants would not be liable underGthe Drugs and Cosmetics Act, 1940 since the Appellants alreadyhave the necessary Wholesale Drug License as per form 20Band 21B of the Drugs and Cosmetics Rules, 1945. In such ascenario, even if the allegations made in the complaint are taken H

A

in toto, no case for an offence would still be made out, makingthe entire process frivolous. [Paras 19 and 20][123-B-D]

4. In the present case, the Respondent has provided noexplanation for the extraordinary delay of more than four yearsbetween the initial site inspection, the show cause notice, andthe complaint. In fact, the absence of such an explanation onlyprompts the Court to infer some sinister motive behind initiatingthe criminal proceedings. While inordinate delay in itself maynot be ground for quashing of a criminal complaint, in such cases,unexplained inordinate delay of such length must be taken intoconsideration as a very crucial factor as grounds for quashing acriminal complaint. [Paras 24 and 25][124-D-E]

B

C

5. The High Court while passing the impugned judgment,has failed to take into consideration to the facts and circumstancesof the case. While it is true that the quashing of a criminalcomplaint must be done only in the rarest of rare cases, it is stillthe duty of the High Court to look into each and every case withgreat detail to prevent miscarriage of justice. The law is asacrosanct entity that exists to serve the ends of justice, and thecourts, as protectors of the law and servants of the law, mustalways ensure that frivolous cases do not pervert the sacrosanctnature of the law. [Para 28][125-A-C]

D

E

State of Haryana & Ors. v. Bhajan Lal & Ors. (1992)Supp 1 SCC 335 : [1991] 1 Suppl. SCR 387;State of Andhra Pradesh v. Golconda Linga Swamy &Anr. (2004) 6 SCC 522 : [2004] 3 Suppl. SCR 147; R.P. Kapur v. State of Punjab [1960] 3 SCR 388; BijoySingh & Anr. v. State Of Bihar (2002) 9 SCC 147 :[2002] 3 SCR 179 – relied on.

F

Case Law Reference

H

ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2310 of 2022.

From the Judgment and Order dated 23.08.2021 of the High Courtof Madras in Crl. O.P. No. 6445 of 2018.

K. Ramakanth Reddy, Sr. Adv., Ms. Komal Agarwal, K. KrishnaBKumar, Advs. for the Appellants.

V. Krishnamurthy, Sr. Adv., Dr. Joseph Aristotle S., Nupur Sharma,Shobhit Dwivedi, Ms. Richa Vishwakarma, Ms. Vaidehi Rastogi, Advs.for the Respondent.

CThe Judgment of the Court was delivered byKRISHNA MURARI, J.

Leave Granted.

2. The present appeal is directed against the final order dated23.08.2021 passed by the High Court of Madras (hereinafter referred toDas “High Court”) in Criminal O.P. No. 6445 of 2018, where theAppellants’ plea under Section 482 of the Cr.PC to quash the criminalcomplaint against them was dismissed.

3. Briefly, the facts relevant for the purpose of this Appeal are asfollows:E

I.Appellant No.1 is the proprietor of an established companyunder the name of M/s. Chem Pharm, a trader of rawmaterial chemicals used in food, food supplements, medicinalpreparations etc. Appellant No.2 is the son and employeeof Appellant No. 1.

F

II.During the course of their business, the Appellantspurchased 75 Kg of pyridoxal-5-phosphate (as 3 x 25Kgpacks) from one M/s Antoine & Becouerel OrganicChemical Co., vide invoice dated 19.03.2013.

GIII.On 19.11.2013, the then Drug Inspector, KodambakkamRange, inspected the Appellants’ premises and allegedcontravention of S.18(c) of the Drugs and Cosmetics Act1940 read with Rule 65(5)(1)(b) of the Drugs and CosmeticsRules 1945. It was claimed that the Appellants broke upthe bulk quantity of pyridoxal-5-phosphate and sold it toHdifferent distributors.

IV.It is alleged that the Appellant had broken up the bulk quantityof raw materials into various pack sizes containing quantities0.5kg, 1kg, 10kg and 15kg and had sold the same to variousdrug manufacturers.

V.On 30.03.2016, the Drug Inspector issued a show causememo to the Appellants after nearly three years. TheAppellants, after the show cause memo on 02.04.2016,submitted their reply to the same.

VI.On 11.08.2017, after a further lapse of one year and fourmonths, the Respondent, filed a complaint against theAppellants.

4. The Appellants, in the High Court of Madras, sought for quashingof the above-mentioned complaint, and the same was dismissed videimpugned order dated 23.08.2021 on the grounds that a trial was necessaryto ascertain the facts of the case, and an order was passed to expeditethe trial. The relevant part of the order is extracted below:

“Though several grounds have been raised by the learnedcounsel for the Appellants, however, this Court is of theopinion the issue is a triable issue and the grounds raised bythe counsel for the Appellants are all factual in nature, and itrequires an appreciation of evidence, and this Court cannotdecide the same in exercise of its jurisdiction under Section482 of Criminal Procedure Code. It is left open to theAppellants to raise all the grounds before the Court, and thesame shall be considered on its own merits and in accordancewith the law. This Court is not inclined to interfere with theproceedings pending before the Court below.”

5. Being aggrieved by the same, the Appellants filed the presentAppeal, seeking to quash the criminal complaint against them.

ARGUMENTS ON BEHALF OF THE APPELLANTS

6. The Ld. Counsel Appearing on behalf of the Appellantscontended that:

a) The Respondent/Drugs Inspector has prima facie failed to giveany evidence indicating that the substance “Pyridoxal 5 Phosphate”(Hereinafter referred to as Impugned Substance) is a drug onlyfalling under the Drugs and Cosmetics Act, 1940.

A

B

C

D

E

G

H

Ab) The impugned substance is a bulk food substance falling underthe definition of “food” as per Section 3(1)(j) of the Food Safetyand Standards Act, 2006 Rules and Regulations thereunder, andnot a drug under Section 3(b) of the Drugs and Cosmetics Act,1940.

Bc) The Respondent/ Drugs Inspector cannot exercise powersunder Section 22 of the Drugs and Cosmetics Act, 1940, as it issubject to Section 23 of the same Act.

d) Schedule K and Rule 123 of the Drugs and Cosmetics Act,1940 exempt all substances that are capable of being used both inCfood manufacture and drug manufacture from all the requirementsof Chapter IV of the Drugs and Cosmetics Act, 1940.

e) Even if the impugned substance is assumed to be a drug, theAppellants have a valid Wholesale Drug License in forms 20Band 21 B of the Drugs and Cosmetics Rules, 1945.

Df) The Respondent has provided no evidence to prima facieestablish that the Appellants broke open and repackaged the items,causing the nature of the Act to become manufacturing.

ANALYSIS

7. We have heard the counsels appearing on behalf of theEAppellants and the Respondents in great detail.

8. For the quashing of a criminal complaint, the Court, when itexercises its power under Section 482 Cr.P.C., only has to considerwhether or not the allegations in the complaint disclose thecommission of a cognizable offence.F

9. This Court, in State Of Haryana & Ors. Vs Bhajan Lal &Ors.[1], has laid down broad guidelines for quashing a criminal complaintas under:- “In the backdrop of the interpretation of the various relevantGprovisions of the Code under Chapter XIV and of theprinciples of law enunciated by this Court in a series ofdecisions relating to the exercise of the extraordinary powerunder Article 226 or the inherent powers under Section 482of the Code which we have extracted and reproduced above, HASMUKHLAL D. VORA & ANR. v. THE STATE OF TAMILNADU [KRISHNA MURARI, J.]

we give the following categories of cases by way of illustrationwherein such power could be exercised either to preventabuse of the process of any court or otherwise to secure theends of justice, though it may not be possible to lay down anyprecise, clearly defined and sufficiently channelized andinflexible guidelines or rigid formulae and to give anexhaustive list of myriad kinds of cases wherein such powershould be exercised.

(1) Where the allegations made in the first information reportor the complaint, even if they are taken at their face valueand accepted in their entirety, do not prima facie constituteany offence or make out a case against the accused.

(2) Where the allegations in the first information report andother materials, if any, accompanying the FIR do not disclosea cognizable offence, justifying an investigation by policeofficers under Section 156(1) of the Code except under anorder of a Magistrate within the purview of Section155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIRor complaint and the evidence collected in support of thesame do not disclose the commission of any offence and makeout a case against the accused.

(4) Where, the allegations in the FIR do not constitute acognizable offence but constitute only a non-cognizableoffence, no investigation is permitted by a police officer withoutan order of a Magistrate as contemplated under Section155(2) of the Code.

(5) Where the allegations made in the FIR or complaint areso absurd and inherently improbable on the basis of whichno prudent person can ever reach a just conclusion that thereis sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of theprovisions of the Code or the concerned Act (under whicha criminal proceeding is instituted) to the institution andcontinuance of the proceedings and/or where there is aspecific provision in the Code or the concerned Act, providingefficacious redress for the grievance of the aggrieved party.

AB

C

D

E

F

G

H

A(7) Where a criminal proceeding is manifestly attended withmala fide and/or where the proceeding is maliciously institutedwith an ulterior motive for wreaking vengeance on the accusedand with a view to spite him due to private and personalgrudge.”B10. In State of Andhra Pradesh Vs. Golconda Linga Swamy& Anr.[2], this Court elaborated on what evidence and material the HighCourt can get into in cases where a prayer for quashing a complaint hasbeen made. The Court held:

“…..Authority of the Court exists for advancement of justice,Cand if any attempt is made to abuse that authority so as toproduce injustice, the Court has power to prevent such abuse.It would be an abuse of the process of the Court to allow anyaction which would result in injustice and prevent promotionof justice. In exercise of the powers court would be justifiedto quash any proceeding if it finds that initiation orDcontinuance of it amounts to abuse of the process of Court orquashing of these proceedings would otherwise serve the endsof justice. When no offence is disclosed by the complaint, theCourt may examine the question of fact. When a complaint issought to be quashed, it is permissible to look into theEmaterials to assess what the complainant has alleged andwhether any offence is made out even if the allegations areaccepted in toto.”

11. In R.P. Kapur Vs. State of Punjab[3], this Court summarisedsome categories of cases where inherent power can and should beFexercised to quash the proceedings:

“It is well-established that the inherent jurisdiction of the HighCourt can be exercised to quash proceedings in a proper caseeither to prevent the abuse of the process of any court orotherwise to secure the ends of justice. Ordinarily criminalGproceedings instituted against an accused person must be triedunder the provisions of the Code, and the High Court wouldbe reluctant to interfere with the said proceedings at aninterlocutory stage. It is not possible, desirable or expedient 2 (2004) 6 SCC 522H3 (1960) 3 SCR 388

HASMUKHLAL D. VORA & ANR. v. THE STATE OF TAMILNADU [KRISHNA MURARI, J.]

to lay down any inflexible rule which would govern theexercise of this inherent jurisdiction. However, we may indicatesome categories of cases where the inherent jurisdiction canand should be exercised for quashing the proceedings. Theremay be cases where it may be possible for the High Court totake the view that the institution or continuance of criminalproceedings against an accused person may amount to theabuse of the process of the court or that the quashing of theimpugned proceedings would secure the ends of justice. Ifthe criminal proceeding in question is in respect of an offencealleged to have been committed by an accused person and itmanifestly appears that there is a legal bar against theinstitution or continuance of the said proceeding the HighCourt would be justified in quashing the proceeding on thatground. Absence of the requisite sanction may, for instance,furnish cases under this category. Cases may also arise wherethe allegations in the First Information Report or thecomplaint, even if they are taken at their face value andaccepted in their entirety, do not constitute the offencealleged; in such cases no question of appreciating evidencearises; it is a matter merely of looking at the complaint or theFirst Information Report to decide whether the offencealleged is disclosed or not. In such cases it would be legitimatefor the High Court to hold that it would be manifestly unjustto allow the process of the criminal court to be issued againstthe accused person. A third category of cases in which theinherent jurisdiction of the High Court can be successfullyinvoked may also arise. In cases falling under this categorythe allegations made against the accused person do constitutean offence alleged but there is either no legal evidenceadduced in support of the case or evidence adduced clearlyor manifestly fails to prove the charge. In dealing with thisclass of cases it is important to bear in mind the distinctionbetween a case where there is no legal evidence or wherethere is evidence which is manifestly and clearly inconsistentwith the accusation made and cases where there is legalevidence which on its appreciation may or may not supportthe accusation in question.”

ABCDEF

G

H

A12. The Respondent, in the impugned complaint, stated that duringthe inspection of the Appellants’ premises, it was found that the Appellantshad purchased 75 kg (as 3 x 25kg packets) of the impugned substance.However, no stock of the impugned substance was found on the premiseof the Appellants.B13. Subsequently, on verification of the sale invoices of theAppellants’ company, it was found that the Appellants had broken up theimpugned substance and packaged it into various smaller packs. Thesesmaller packs were then sold to various other drug manufacturers.

A

14. This alleged breaking up of the impugned substance into smallerCpackages and further distribution of the same is being classified by theRespondent as “manufacturing”, and hence a case is being made outagainst the Appellants under Section 18(c) read with Section 3(f) of theDrugs and Cosmetics Act, 1940.

15. This Court in R.P. Kapur Vs State Of Punjab (Supra), asDmentioned above, has clarified that the court can exercise its powers toquash a criminal complaint, provided that the evidence adduced is clearlyinconsistent with the accusations made, or no legal evidence has beenpresented.

16. Upon perusal of the legal nature of the impugned substance, itEcan be seen that the impugned substance has been categorized as a bulkfood substance falling under the definition of food as per Section 3(1)(j)of the Food Safety and Standards Act, 2006. The impugned substancehas specifically been mentioned as a food ingredient in Serial No.4(ii) ofthe Schedule-I of the Food Safety and Standards Regulations, 2016.

F17. From a bare perusal of the relevant laws and regulations, itcan also be seen that the alleged substance is not included as a drug inthe Indian Pharmacopoeia.

The fact that it is mentioned as “food” as per Section 3(1)(j) ofthe Food Safety and Standards Act, 2006, further only proves that theimpugned substance does not require a specific license under the DrugsGand Cosmetics Act, 1940.

18. The Appellants claim that the impugned substance is a dual-use substance, which can be used both for food and drug manufacture.For such dual-use substances, Schedule K and Rule 123 of the Drugs and Cosmetics Act, 1940, clearly state that such substances are exemptfrom the requirements of Chapter IV of the Drugs and Cosmetics Act,1940.

19. It is also worth mentioning that the Respondent has made noeffort to prove that the alleged substance is only a drug and not a food-manufacturing substance. No scientific evidence or otherwise has beenfurnished to prove that the alleged substance is solely used formanufacturing drug and not food items. Prima Facie, due to the lack ofevidence adduced by the Respondent in the four-year period betweenthe initial enquiry and the complaint, this court cannot presume that thealleged substance can only be classified as a “drug”.

20. If we were to go one step further and assume that the impugnedsubstance is solely used for drug manufacture, even then, the Appellantswould not be liable under the Drugs and Cosmetics Act, 1940 since theAppellants already have the necessary Wholesale Drug License as perform 20B and 21B of the Drugs and Cosmetics Rules, 1945. In such ascenario, even if the allegations made in the complaint are taken in toto,no case for an offence would still be made out, making the entire processfrivolous.

21. Further, it is more than apparent from the record that eventhough the complaint was made by the Drug Inspector but no evidencehas been provided by the officer to sustain the complaint. No recoveryhas been made from the premise of the Appellants, and no evidence hasbeen provided to sustain the argument that the impugned substance iscategorized only as a drug and requires a specific license.

22. While the sale of the alleged substance is an admitted fact bythe Appellants, no efforts have been made by the officer to prove thatthe alleged substance is a drug which comes only under the purview ofthe Drugs and Cosmetics Act, 1940. No efforts have also been made toshow that the packaging of the impugned substance was broken up intovarious-size packets different from the original packaging from the originalmanufacturer. No recovery of the sold packets has been made toascertain whether the original packaging was tampered with.

23. There has been a gap of more than four years between theinitial investigation and the filing of the complaint, and even after lapseof substantial amount of time, no evidence has been provided to sustain AB

C

D

E

F

G

H

Athe claims in the complaint. As held by this Court in Bijoy Singh & Anr.Vs State Of Bihar[4], inordinate delay, if not reasonably explained, can befatal to the case of the prosecution. The relevant extract from thejudgment is extracted below:-

“Delay wherever found is required to be explained by theBprosecution. If the delay is reasonably explained, no adverseinference can be drawn, but failure to explain the delay wouldrequire the Court to minutely examine the prosecution versionfor ensuring itself as to whether any innocent person hasbeen implicated in the crime or not. Insisting upon the accusedCto seek an explanation of the delay is not the requirement oflaw. It is always for the prosecution to explain such a delayand if reasonable, plausible and sufficient explanation istendered, no adverse inference can be drawn against it.”

24. In the present case, the Respondent has provided no explanationDfor the extraordinary delay of more than four years between the initialsite inspection, the show cause notice, and the complaint. In fact, theabsence of such an explanation only prompts the Court to infer somesinister motive behind initiating the criminal proceedings.

25. While inordinate delay in itself may not be ground for quashingEof a criminal complaint, in such cases, unexplained inordinate delay ofsuch length must be taken into consideration as a very crucial factor asgrounds for quashing a criminal complaint.

26. While this court does not expect a full-blown investigation atthe stage of a criminal complaint, however, in such cases where theFaccused has been subjected to the anxiety of a potential initiation ofcriminal proceedings for such a length of time, it is only reasonable forthe court to expect bare-minimum evidence from the InvestigatingAuthorities.

27. At the cost of repetition, we again state that the purpose ofGfiling a complaint and initiating criminal proceedings must exist solely tomeet the ends of justice, and the law must not be used as a tool to harassthe accused. The law, is meant to exist as a shield to protect the innocent,rather than it being used as a sword to threaten them.

CONCLUSION

28. It must be noted that the High Court while passing theimpugned judgment, has failed to take into consideration to the facts andcircumstances of the case. While it is true that the quashing of a criminalcomplaint must be done only in the rarest of rare cases, it is still the dutyof the High Court to look into each and every case with great detail toprevent miscarriage of justice. The law is a sacrosanct entity that existsto serve the ends of justice, and the courts, as protectors of the law andservants of the law, must always ensure that frivolous cases do notpervert the sacrosanct nature of the law.

29. In view of above facts and discussions, the impugned orderdated 23.08.2021 passed by the High Court is not liable to be sustainedand is hereby set aside. The proceedings of C.C. No. 6351 of 2017pending in the Court of Metropolitan Magistrate-IV, Saidapet, Chennaistands quashed.

30. Accordingly, the appeal stands allowed.

Devika Gujral(Assisted by : Shevali Monga, LCRA)

Appeal allowed.

A

B

C

D

E

F

G

H