Naved Rehmat and 2 Others Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:79342

Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 13436 of 2025 (Leading Application) Applicant :- Naved Rehmat And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sandeep Kumar Srivastava Counsel for Opposite Party :- G.A.

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with

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Case :- APPLICATION U/S 528 BNSS No. - 14351 of 2025 (Connected C1 Application) Applicant :- Naved Rehmat And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sandeep Kumar Srivastava Counsel for Opposite Party :- G.A.

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with Case :- APPLICATION U/S 528 BNSS No. - 14356 of 2025 (Connected C2 Application) Applicant :- Naved Rehmat And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sandeep Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Heard Shri Sandeep Kumar Srivastava, learned counsel for the applicants in the leading and connected C1, C2 applications and Sri Jai Bahadur Singh, learned AGA for the State.

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The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.

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The case set-forth in the leading application is that the opposite party No.2, Drug Inspector on the basis of a complaint dated 09.11.2022 inspected the firm of the applicant no.1 and 6 samples

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of drugs were taken in the presence of the applicant no. 1 which was also sealed and a memo was prepared of the recovered samples on which signature was taken. Thereafter the aforesaid sample was sent to Government laboratory and as per the report of the Government Laboratory, the samples contained positive identity of Sidenafil Citrate. According to the learned counsel for the applicants, a complaint stood filed on 28.08.2024 against the applicants which were registered as Case No. 9519 of 2024, Special Case No. 484 of 2024 (State v. Naved Rahmat and others), under Sections 18(a)(i), 18(c)/27(b)(i), 27(b)(ii) of the Drugs and Cosmetics Act before the Court of Chief Judicial Magistrate, Amroha. The Chief Judicial Magistrate, Amroha on 28.08.2024 proceeded to summon the applicants under Sections 18(a)(i), 18(c)/27(b)(i), 27(b)(ii) of the Drugs and Cosmetics Act.

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Questioning the summoning order, the present application has been filed.

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This Court while entertaining the present application, proceeded to pass the following orders on 06.05.2025:

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"1. Contention of the learned counsel for the applicants is that the summoning order is cryptic and non-speaking as it does not even recite the case of the complainant and the same has been passed by total nonapplication of mind. He seeks to rely upon the judgment of the Hon'ble Apex Court in the case of M/s J.M. Laboratories v. State of Andhra Pradesh: 2025 INSC 127.

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2. Sri Indrajeet Singh Yadav, learned A.G.A. seeks time to obtain instructions.

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3. Put up this case on 14.05.2025 at 02:00 P.M. as fresh."

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Shri Jai Bahadur Singh has produced before this Court an instruction on behalf of the opposite party No. 2 dated 13.05.2025.

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As regards, the connected C1 application is concerned, the same is with respect to the parties, which are in the leading application

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and here also a complaint was also lodged on 28.08.2024 on the basis of the inspection dated 09.11.2022 and the chemical examination report dated 13.02.2023. The Chief Judicial Magistrate, Amroha on 28.08.2024 proceeded to summon the applicants under Sections 18(a)(i), 18(c)/27(b)(i), 27(b)(ii) of the Drugs and Cosmetics Act.

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This Court entertained the present application on 05.05.2025, wherein the following orders were passed:

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"1. Contention of the learned counsel for the applicants is that the summoning order dated 28.08.2024 is cryptic and non-speaking as it does not even recite the case of the complainant and the same has been passed by total non-application of mind. He seeks to rely upon the judgment of the Hon'ble Apex Court in the case of M/s J.M. Laboratories v. State of Andhra Pradesh: 2025 INSC 127.

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2. Sri Indrajeet Singh Yadav, learned A.G.A. seeks time to obtain instructions.

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3. Put up this case on 14.05.2025 at 02:00 P.M. as fresh."

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With respect to the connected C2 application is concerned, the same has also been preferred against the summoning order dated 28.08.2024 under Sections 18(a)(i), 18(c)/27(b)(i), 27(b)(ii) of the Drugs and Cosmetics Act, pursuant to the complaint lodged on 28.08.2024.

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This Court entertained the present application on 05.05.2025, wherein the following orders were passed:

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"1. Contention of the learned counsel for the applicants is that the summoning order dated 28.08.2024 is cryptic and non-speaking as it does not even recite the case of the complainant and the same has been passed by total non-application of mind. He seeks to rely upon the judgment of the Hon'ble Apex Court in the case of M/s J.M. Laboratories v. State of Andhra Pradesh: 2025 INSC 127.

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2. Sri Indrajeet Singh Yadav, learned A.G.A. seeks time to obtain instructions.

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3. Put up this case on 14.05.2025 at 02:00 P.M. as fresh."

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Shri Sandeep Kumar Srivastava, counsel for the applicants while questioning the summoning order dated 28.08.2024 passed by the court below has sought to argue that first of all, the summoning order is cryptic in nature as it does not contain any prima facie satisfaction regarding attraction/ application of the penal provisions. He submits that summoning is a serious issue and it cannot be proceeded with as a matter of routine as there has to be in application of mind which should be reflected in the order itself. He seeks to rely upon the judgment in the case of M/s. JM Laboratories vs State of Andhra Pradesh 2025 INSC 127 . He further submits that as per Section 223 first proviso to Section 223 of the BNSS, once the complaint was lodged on 28.08.2024 post enforcement of the BNSS on 01.07.2024 then the first proviso to Section 223 of the BNSS would come into play. According to which, no cognizance of the offence is to be taken by the Magistrate without giving accused an opportunity of being heard. He thus submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.

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Shri Jai Bahadur Singh who appears for the State submits that from the perusal of the allegations in the complaint as well as the documents available on record, it is apparently clear that offences have been committed giving an occasion to invoke the penal provisions under the Act, but according to him, the summoning order has not been passed in correct perspective as per the mandate of the Hon'ble Apex Court in the case of M/s. JM Laboratories (supra). He thus submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.

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I have heard learned counsel for the parties and gone through the records carefully.

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Since the summoning orders dated 28.08.2024 in leading, connected C1 & C2 applications are verbatim and the same, thus, for ready reference, the summoning order which is subject matter in the leading application is being quoted hereinunder:

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" आजयहपररववद - पतअभभययकगणनवववदरहमतरहमत , मवससरजजययहररहवलथकवयरपतव खसरवनन 0 2615/16, भनसवरनगर , खयशकतवलवर , ककलशवरयड , अमरयहववमकससरजजययहरर हवलथकवयर , पतव 119 कवपप०सटटपट , अमगहवजजलवअमरयहवकवभवरदअनतगरतधवरव 18 (a) (i), 18(c) दणडनपयअनतगरतधवरव 27 (b) (i), 27(b) (ii) औषजधएवनपसवधनअजधभनयम कवपसतयतहहआ।अरलयकनभकयवगयव।पररववदकवरपममदजररजजसटरहय।

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समसतपपततकवअवलयकनभकयव , चचनभकपररववदपलयकस व कहक।अततरयवनअनतगरतधवरव 200 दन०प०सन०ककआवशयकतवनहहहक।पररववदकवअवलयकनसवभवभदतहयतवहकभकउक अभभययकगणकयधवरव 18 (a) (i), 18(c)/27(b)(i), 27(b)(ii) औषजधएवनपसवधन अजधभनयमकवअपरवधकवजलएतलरभकयवजवनवकवआधवरपयवरपहक।अततधवरव 202 कव रयवनतककभपआवशयकतवनहहहक।

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अततउकअभभययकगणकयधवरव 18 (a) (i). 18(c)/27(b)(i), 27(b)(ii) औषजधएवन पसवधनअजधभनयमकवअपरवधममभवचवरणहवतयतलरभकयवजवतवहक।अभभययकगणकवभवरद समनभदनवनक 24.09.2024 कवजलएजवरपहत। "

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A perusal of the summoning order would reveal that the same is dedicated in three paragraphs, first is dedicated towards the lodging of the proceedings and registration of the same, second paragraph talks about only bare reference to the fact that the complaint has been filed under the said sections for summoning and there are appropriate grounds to summon and the third paragraph is dedicated towards summoning of the applicants. A bird's eye view to the summoning order would reveal that the same even does not recite the case of the complainant and also prima facie consideration thereof regarding application of the said

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sections for summoning the applicants.

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As a matter of fact, summoning is a serious business and the same has to be strictly in accordance with law speaking, reasoned and also show due application of mind and consideration and sufficiency to be recorded in that regard. Since there is nothing in the summoning order so as to suggest that it has been passed in accordance with the mandate of the Hon'ble Apex Court in the case of M/s. JM Laboratories (supra) , thus this Court has no option but to set aside the summoning orders, while remitting the matter back to the court below to pass fresh orders.

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Accordingly, the applications stand disposed of in the following manner:

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The summoning order dated 28.08.2024 passed in leading, connected C1 & C2 applications are set aside.

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The matter stands remitted back to pass fresh order strictly in accordance with law.

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For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 30.05.2025 and the court below shall proceed to decide the said proceeding with most expedition.

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Needless to point out that the Court has not adjudicated upon the merits of the case.

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Accordingly, the applications stand disposed of .

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Order Date :- 14.5.2025 A. Prajapati

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Digitally signed by :- ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

Naved Rehmat and 2 Others v. State of U.P. and Another

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