Dismissed

Khushi Ram Agarwal v. the State of Jharkhand

Jharkhand HC5 Sept 2023Cr.M.P./321/2023

Case brief

AI extract

What is this about?

The High Court dismissed a petition seeking quashing of criminal proceedings for alleged spurious drugs. The court distinguished precedents relying on sample analysis defects, holding that where charges are based on fake labels and documents under Section 17B, Section 23 sampling rules are not fatal even if prosecution procedure wasn't followed.

What did the court decide?

The criminal miscellaneous petition seeking quashing of the order dated 18.07.2022 rejecting discharge was dismissed as without merit.

Khushi Ram Agarwal Vs the State of Jharkhand — Quashing and FIR | Jharkhand HC (2023)

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1 Cr.M.P. No. 321 of 2023

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 321 of 2023

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Khushi Ram Agarwal, aged about 60 years, son of Jaikishan Lal Agarwal

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Sanju Agarwal, aged about 38 years, son of Khushi Ram Agarwal, both resident of 29/A, Shakti Nagar Co-operative colony, near Jain Mandir, P.O.- Dhanbad, P.S.- Bank More, Dist.- Dhanbad ........ Petitioners

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Versus The State of Jharkhand ….. Opposite Party

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For the Petitioners : Mr. Vikram Sinha, Adv. For the State : Mr. Abhay Kr. Tiwari, Addl.PP

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding and the order dated 18.07.2022 passed by learned Additional Sessions Judge- II- CumSpecial Judge, CBI-cum- Special Judge, (Cyber Crime Cases & Electricity Act Cases), Dhanbad in connection with Misc. Criminal Application No. 1262 of 2022 arising out of Drugs and Cosmetics Case no. 01 of 2021 whereby and whereunder learned Additional Sessions Judge-II has rejected the application filed under Section 227 of the CrPC by petitioners for their discharge in the case.

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The allegation against the petitioners is that the Drug Inspector seized one articles in the name and style of Phencyrex Cough syrup (100 ML) Batch no. 33097-SMB1, manufacturing date Sep. 2017, Expiry Date – August, 2019 manufactured by M/s Smilex Healthcare Pvt. Ltd. -54, EPIP-1, Jharmajri, Baddi-174103, Dist.Solan, H.P., Licence no. – L/15/1665/MNB seized from the establishment / shop of the accused M/s Baba Medical Agency, Dhanbad, of which, undisputedly, both the petitioners are the

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Cr.M.P. No. 321 of 2023

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partners and the allegation that said Phencyrex Cough syrup was having fictitious and fake label of M/s Smilex Healthcare Pvt. Ltd, as the said company on the date of alleged manufacturing; as mentioned in label was not in operation on the said address as mentioned in the label, thus it is alleged that the said drug sold by petitioners, was not the product of the alleged manufacturer. It is further alleged that M/s Baba Medical Agency, Dhanbad even though provided the purchase documents of the Phencyrex Cough syrup from M/s Megha Medical but M/s Megha Medicals denied issuing any such purchase documents of the medicines in favour of M/s Baba Medicals. Learned Special Judge, Drugs and Cosmetics Act, on the basis of the materials placed before it, took cognizance for the offences punishable under Section 27 (C ) and 27 (d) of the Drugs and Cosmetics Act, 1940 for violation of Section 17B (C) and 17 B (e ) read with Section 65 (5) (3) of Drugs and Cosmetics Act, 1940 inter alia against the petitioners. The petitioners filed a petition for discharge under Section 227 of CrPC contending therein, that since the manufacturer company did not conclusively state that the sample is actually a counterfeit drug hence, in depth examination of the same is required to reach any conclusion and the ground of the contention of the Drug Inspector, that M/s Smilex Healthcare Pvt. Ltd, did not manufacture the same, is based on incomplete and insufficient information but subsequently, the said M/s Smilex Healthcare Pvt. Ltd, has intimated that it manufactured the said drug and the Drug Control Administration of Himachal Pradesh also, after inquiry in the matter and detail investigation , submitted a report to the complainant by merely mentioning that the seized drug has been manufactured by M/s Smilex Healthcare Pvt. Ltd.

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The learned Special Judge, considered that the seized Phencyrex Cough syrup , from the petitioners, was stated to be manufactured in September, 2017 but as per the report dated 23.08.2019, the Drug Inspector, Solan, Himachal Pradesh, M/s Smilex Healthcare Pvt. Ltd. 54, EPIP-1, Jharmajri Baddi-174103, has wound up its business and was no longer operational on the said address of

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Cr.M.P. No. 321 of 2023

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plot no. 54 since the year 2016 and on the date of manufacturing vide ‘ control sample ’, the company was operational from plot no. 23 with the remaining address being same. The manufacturer also confirmed vide letter dated 03.10.2018 and 28.01.2019 that the said product was not manufactured by them. Learned Special Judge, also considered that bare perusal of the label of the ‘ control sample ’ and the label of the seized sample annexed with the record, it is apparent that not only the plot number mentioned on both the labels i.e. 23 and 54 is different but also in the warning portion of the labels, which is statutorily / mandatorily required to be mentioned on the label; are also different, as detailed in the order. Learned Special Judge, also considered that M/s Baba Medical agency could not provide the purchase of Phencyrex Cough syrup manufactured by M/s Smilex Healthcare Pvt. Ltd. , nor the petitioners could produce the authenticated documents and bills related to manufacturing, purchasing or storage of the said seized articles and bill of M/s Megha Medical, when inquired, was found to be fictitious, hence, prima facie it appears that the seized sample is not part of the same batch number as mentioned on the drug manufactured by the firm concerned, and that the company has not manufactured the said drug from plot no. 54 as mentioned in the seized sample after year 2016 and the fake voucher has been produced by the accused, which has been denied by the source; hence, the material is sufficient to constitute the offences, for which provisions, the cognizance has been taken and sufficient to frame charge against said offences and rejected the petition for discharge.

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Learned counsel for the petitioners submits that without proper inquiry, the seized Phencyrex Cough syrup is assumed to be a counterfeit drug; thoigh the manufacturing company did not conclusively state that it is a counterfeit drug. It is next submitted that the complainant has not considered that the report submitted after detailed investigation, by the Drug Control Administration, to the effect that the drug has been manufactured by the firm, on valid drug and manufacturing loan licence and drug permission

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Cr.M.P. No. 321 of 2023

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of the said drug. It is next submitted by learned counsel for the petitioners that the drug inspector could not follow the procedure for taking the sample as envisaged under Section 23 of the Drugs and Cosmetics Act, 1940. Further relying upon the judgment of the Hon’ble Supreme Court of India in the case of Laborate Pharmaceuticals India Ltd vs State of Tamil Nadu reported

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in AIR 2017 SC 2423, para 7 and 9 of which, reads as under :-

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“7. A reading of the provisions of Section 23(4) and 25 of the Act would indicate that in the present case the sample having been taken from the premises of the retailer had to be divided into four portions; one portion is required to be given to the retailer; one portion is required to be sent to the Government Analyst and one to the Court and the last one to the manufacturer whose name, particulars, etc. is disclosed under Section 18A of the Act. In the present case, admittedly, one part of the sample that was required to be sent to the appellant (manufacturer) under Section 23(4)(iii) of the Act was not sent. Instead, what was sent on 22nd March, 2012 was only the report of the Government Analyst. When the part of the sample was not sent to the manufacturer, the manufacturer could not have got the same analyzed even if he wanted to do so and, therefore, it was not in a position to contest the findings of the Government Analyst. In the present case, the sample was sent to the appellant-manufacturer on 10th August, 2012 and on 13th September, 2012 the appellant had indicated its desire to have another part of the sample sent to the Central Laboratory for re-analysis. This was refused on the ground that the aforesaid request was made much after the stipulated period of 28 days provided for in Section 25(3) of the Act.

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9. All the aforesaid facts would go to show that the valuable right of the appellant to have the sample analyzed in the Central Laboratory has been denied by a series of defaults committed by the prosecution; firstly, in not sending to the appellant-manufacturer part of the sample as required under Section 23(4) (iii) of the Act; and secondly, on the part of the Court in taking cognizance of the complaint on 4th March, 2015 though the same was filed on 28th November, 2012. The delay on both counts is not attributable to the appellants and, therefore, the consequences thereof cannot work adversely to the interest of the appellants. As the valuable right of the accused for re-analysis vested under the Act appears to have been violated and having regard to the possible shelf life of the drug we are of the view that as on date the prosecution, if allowed to continue, would be a lame prosecution.”

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It is submitted by learned counsel for the petitioners that therein, it has been held by the Hon’ble Supreme Court of India that the valuable right of the accused to the have sample analyzed in the Central Laboratory has been envisaged in Section 23 of the Act and denial of the same to the accused, for any reason, not attributable to the accused, if allowed to continue, would be a lame prosecution.

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learned counsel for the petitioners further relied upon the judgment of a co-ordinate Bench of this court in the case of Krishna Mohan Prasad, vs. The State of Jharkhand

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Cr.M.P. No. 321 of 2023

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reported in 2021 4 JLJR 265 wherein the co-ordinate Bench in the facts of that case, where the allegation against the accused person of that case, was that where the complaint was lodged pursuant to a report received by the complainant from the Jharkhand State Drug Testing Laboratory, in connection with the drug, involved in that case, and where neither the sample nor the test report in connection with the drug, for which, criminal case was lodged against the petitioner, were not sent to the petitioner, and there was non-compliance of the statutory provisions, as contained in Section 23 (4) , 25 (2) of the Drugs and Cosmetics Act, 1940, the co-ordinate Bench held that the violation of mandatory provisions of the Act, vitiates the entire criminal proceedings against the petitioner and quashed the criminal proceedings qua the petitioner of that case, hence, it is submitted that the entire criminal proceeding and the order dated 18.07.2022 passed by learned Additional Sessions Judge- II- Cum- Special Judge, CBIcum- Special Judge, (Cyber Crime Cases & Electricity Act Cases), Dhanbad in connection with Misc. Criminal Application No. 1262 of 2022 arising out of Drugs and Cosmetics Case no. 01 of 2021 be quashed and set aside.

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Learned Addl. PP on the other hand vehemently opposes the prayer of quashing the entire criminal proceeding and the order dated 18.07.2022 passed by learned Additional Sessions Judge- IICum- Special Judge, CBI-cum- Special Judge, (Cyber Crime Cases & Electricity Act Cases), Dhanbad in connection with Misc. Criminal Application No. 1262 of 2022 arising out of Drugs and Cosmetics Case no. 01 of 2021 and submits that unlike the facts of the cases relied upon by the learned counsel for the petitioners, this is not a case, where, the complaint was lodged after receiving the test report of any laboratory. Drawing attention of the court to Section 17 B of the Drugs and Cosmetics act, 1940, which reads as under :-

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“ 17B. Spurious drugs .—For the purposes of this Chapter, a drug shall be deemed to be spurious,—

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(a) if it is manufactured under a name which belongs to another drug; or

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(b) if it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label

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Cr.M.P. No. 321 of 2023

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or container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug; or

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(c) if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist; or

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(d) if it has been substituted wholly or in part by another drug or substance; or (e) if it purports to be the product of a manufacturer of whom it is not truly a product.

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Learned Addl. PP submits that spurious drugs includes if label of the container bears the name of the individual or the company purported to be the manufacturer of the drug which, individual or company is fictitious or does not exists or if it purports to be the product of a manufacture r of w hom it is not truly a product, and this is a case where no test for analysis of the sample is required nor it is to be sent to any government analyst for test or analysis, hence, the principle of non-compliance of Section 23 of the Drugs and Cosmetics Act, 1940 is not attracted to the facts of this case, as in this case, the inspector did not take the sample of the drug for the purpose of the test or analysis. It is next submitted that had the inspector taken the drug for the test or analysis, certainly, it was incumbent upon such drug inspector to comply with the procedure as envisaged in Section 23 of the Drugs and Cosmetics Act, hence, in the facts of this case, the judgments relied upon by the learned counsel for the petitioners are not applicable to facts of the case. It is next submitted by learned Addl.PP that it is a settled principle of law that mere strong suspicion and prima facie materials in the record, against the accused is sufficient to frame charges for the offences against the accused persons, of the case and in view of the letter dated 03.10.2018 and 28.01.2019, of the manufacturer, which confirms that the said seized product was not manufactured by them, coupled with the fact, that the petitioners failed to produce any bills, as to from where, they procured the drugs, and the bills, which were produced by the petitioners, purported to be bills by which, they procured the medicines, were found to be fake and fictitious upon inquiry from M/s Megha Medicals, situated in the Burdwan, West Bengal,

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Cr.M.P. No. 321 of 2023

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as well as the discrepancy in the plot no. and warning portion, as mentioned in details in the order dated 18.07.2022, passed by learned Special Judge, are sufficient to constitute strong suspicion and prima facie materials for framing of the charge, hence, there is no illegality in the order dated 18.07.2022 passed by learned Additional Sessions Judge- II- Cum- Special Judge, CBI-cumSpecial Judge, (Cyber Crime Cases & Electricity Act Cases), Dhanbad in connection with Misc. Criminal Application No. 1262 of 2022 arising out of Drugs and Cosmetics Case no. 01 of 2021 and accordingly, this criminal miscellaneous petition being without any merit be dismissed.

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Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that to Section 23 (3) of the Drugs and Cosmetics Act, 1940; envisages the procedure for the inspector, who takes a sample of the drug for the purpose of test or analysis but here in this case, the complainant claims that the drug was spurious in view of the definition, of the same as envisioned in Section 17B(c ) and Section 17 B (e ) of the Drugs and Cosmetics Act, 1940, which is to the effect that interalia if the label bears the name of the company, purporting to be the manufacturer of the drug; which company does not exists or the label purports to be the product of a manufacturer, of whom it is not truly a product. When there is allegation of such nature, certainly, the test for analysis of such drugs as envisioned in Section 23 (3) of the Drugs and Cosmetics Act, 1940, is not required and in such cases, mere non-compliance of the provisions as envisaged under Section 23 (3) of the Drugs and Cosmetics Act, 1940, will not be fatal for the prosecution.

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So far as the contention of the petitioners that there are subsequent letters of the Drugs and Cosmetics administration of Himachal Pradesh and the manufacturer M/s Smilex Healthcare Pvt. Ltd., that the drug concerned was manufactured by them, is concerned; in view of the fact that there are two clear cut letters by the same manufacturers dated 03.10.2018 and 28.01.2019 to the effect that the said product was not manufactured by them as also,

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Cr.M.P. No. 321 of 2023

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the difference in plot numbers of two labels and the warning portion of the labels as mentioned in detail in the order dated 18.07.2022, passed by learned Special Judge; this court does not find any illegality in the order passed by the learned Special Judge, in coming to the conclusion that there is a strong suspicion to the effect that the seized sample is not a genuine product of the alleged firm- M/s Smilex Healthcare Pvt. Ltd., and thus, spurious under Section 17B (c ) and 17B (e ) of the Drugs and Cosmetics Act, 1940.

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So far as the judgment relied upon by the learned counsel for the petitioners; as already indicated above, in this judgment, this is not a complaint lodged on the basis of report of the drug testing laboratory and as already indicated above, that for the such type of complaints, test and analysis is not essential hence, this court is of the considered view that non-compliance of Section 23 (3) of the Drugs and Cosmetics Act, 1940 will not be fatal for such type of prosecution and the facts of the judgments relied upon by the learned counsel for the petitioners being different from the facts of this case, the said judgments have no relevance in the facts of this case.

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In view of the discussions made above, this court does not find any illegality in the order 18.07.2022 passed by learned Additional Sessions Judge- II- Cum- Special Judge, CBI-cum- Special Judge, (Cyber Crime Cases & Electricity Act Cases), Dhanbad in connection with Misc. Criminal Application No. 1262 of 2022 arising out of Drugs and Cosmetics Case no. 01 of 2021, accordingly, this criminal miscellaneous petition being without any merit is dismissed.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated, the 5^th September, 2023 Smita /AFR

Khushi Ram Agarwal v. the State of Jharkhand

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Khushi Ram Agarwal v. the State of Jharkhand

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