Subhrangsu Mukherjee Vs the State of Jharkhand

2025:JHHC:17490

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.427 of 2023

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Subhrangsu Mukherjee @ Subhrangsu Mukherji, aged about 56 years, son of Dilip Mukherjee, resident of Praxair India Pvt. Ltd., Near L town gate Sakchi, P.O. Sakchi, P.S. Sakchi, Town Jamshedpur, Purbi Singhbhum. … Petitioner

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Versus

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The State of Jharkhand

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Drug Inspector, Ranchi-III, having office address at District Food & Drugs Control Office, Sadar Hospital Complex, P.O. G.P.O., P.S. Kotwali, District Ranchi (Jharkhand).

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… Opposite Parties

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For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. A.K. Sah, Advocate Mr. Kumar Kislay, Advocate For the State : Mr. Pankaj Kumar, P.P.

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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 of the Code of Criminal Procedure Code, 1973 with a prayer to quash the entire criminal proceeding of Drugs and Cosmetics Case No.01 of 2019, including the order taking cognizance dated 01.02.2019 whereby and where under the learned Court of Additional Judicial Commissioner-II, Ranchi has taken cognizance of the offences punishable under Sections 18(c), 27(d), 27(b)(ii) and 27(d)(ii) of the Drugs and Cosmetics Act, 1940 inter alia against the petitioners.

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The brief fact of the case is that at the time of the commission of the

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alleged offence, the petitioner was the Plant Manager of M/s Praxair India

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Pvt. Ltd., located in Jamshedpur, Jharkhand, which is a company engaged in the manufacturing and distribution of industrial gases globally. At the time of commission of the alleged offence, M/s Praxair India Pvt. Ltd. had a valid license for manufacturing and supply of oxygen I.P. On 23.06.2008 M/s Praxair India Pvt. Ltd., entered into a Tripartite Agreement with M/s Sciemed Healthcare Pvt. Ltd., and RIMS, Ranchi for supply of medical oxygen to RIMS, Ranchi at its hospital. M/s Sciemed Healthcare Pvt. Ltd. was awarded work order by RIMS for supply and installation of medical oxygen system with medical gases pipe lines system and M/s Praxair India Pvt. Ltd. was to deliver Oxygen I.P. in liquid form directly into the equipment at RIMS’s hospital and M/s Sciemed Healthcare Pvt. Ltd.,/ RIMS was to arrange for immediate decantation of M/s Praxair India Pvt. Ltd. tankers as soon as they reach the RIMS’s hospital. The undisputed fact remains that M/s Praxair India Pvt. Ltd. inter alia assembled, erected and commissioned the equipment at the premises of RIMS, Ranchi for storage of oxygen and run the storage equipment for 07 days, subsequent to the installation of the storage equipment, installed by M/s Praxair India Pvt. Ltd., at the premises of RIMS, Ranchi, under its complete supervision and monitoring. It is undisputed that there is no license to sell or store oxygen in the premises of RIMS, Ranchi either with M/s Praxair India Pvt. Ltd. or M/s Sciemed Healthcare Pvt. Ltd. The Drugs Inspector, Ranchi-III lodged the complaint against M/s Praxair India Pvt. Ltd and M/s Sciemed Healthcare Pvt. Ltd. who were selling oxygen I.P., which is a drug and stocked for sale at RIMS, Ranchi without license and in violation of Rule 62 of the Drugs and Cosmetics Rules, 1945. The petitioner being the Plant Manager of the concerned plant of M/s Praxair India Pvt. Ltd., has also

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arrayed as an accused person in the case for having committed the aforesaid offences.

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On the basis of the official complaint lodged by the Drug Inspector, Ranchi-III, the learned Special Judge, Drugs and Cosmetics Cases –cumAdditional Judicial Commissioner-II, Ranchi has taken cognizance of the said offences inter alia against the petitioner. It is submitted by the learned counsel for the petitioner that there is no dispute that oxygen I.P. is a drug under Drugs and Cosmetics Act being a life saving drug. It is then submitted that the petitioner has not committed any offence as at the time of the incident, the petitioner was the Plant Manager of M/s Praxair India Pvt. Ltd. The plant at Jamshedpur was transferred from M/s Praxair India Pvt. Ltd. to Air Water India Pvt. Ltd. on 12.07.2019. The complaint has erroneously been filed. M/s Praxair India Pvt. Ltd., supplied Oxygen I.P. through M/s Sciemed Healthcare Pvt. Ltd. to RIMS, Ranchi but M/s Sciemed Healthcare Pvt. Ltd. has no valid license to supply the drugs.

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Relying upon the judgment of Hon’ble Supreme Court of India in the case of “ Lalankumar Singh and Others Vs. State of Maharashtra” reported in 2022 SCC OnLine SC 1383, it is submitted by the learned counsel for the petitioner that in the facts of that case the Hon’ble Supreme Court was of the considered view that as the complaint of that case, was totally lacking the requirement of Section 34 of the Drugs and Cosmetics Act; set aside the order issuing process. It is then submitted that there is no statutory provision as Section 27(d)(ii) in the Drugs and Cosmetics Act. It is next submitted that the order taking cognizance is a vague and non-speaking order. Hence, it is submitted that the prayer as prayed in this Cr.M.P. be allowed.

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3 Cr. M.P. No.427 of 2023

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The learned Public Prosecutor on the other hand vehemently opposes the prayer. It is submitted by the learned public prosecutor that the undisputed facts remains that neither M/s Praxair India Pvt. Ltd. nor M/s Sciemed Healthcare Pvt. Ltd., had the license for sale or storage of oxygen in Ranchi within the premises of RIMS but since indisputably M/s Praxair India Pvt. Ltd. erected and set up the said storage facility within the premises of Ranchi and run it under its supervision for 07 days, so the same was done in violation of Rule 62 of the Drugs and Cosmetics Rules, 1945 which mandates a separate license for drugs to be sold or stocked for sale at more than one place. It is also submitted that since petitioner in the Plant Manager of M/s Praxair India Pvt. Ltd. and in the license issued to M/s Praxair India Pvt. Ltd. the name of the petitioner also appears in capacity of the authorised person of M/s Praxair India Pvt. Ltd., being its plant Manager, the petitioner is squarely responsible for the acts of omission and commission of M/s Praxair India Pvt. Ltd.. It is also submitted that, therefore, the petitioner and rightly been arrayed as an accused in this case. It is then submitted that there is ample material in the record to suggest that the Oxygen I.P. was stored within the premises of RIMS, Ranchi, and the storage facility was run by M/s Praxair India Pvt. Ltd. for 7 days, obviously under the tutelage of petitioner, being the authorised person of M/s Praxair India Pvt. Ltd. It is next submitted that the contentions of the petitioner that he was not the Plant Manager at the date of the occurrence but he was the Regional Manager and he was having a different job profile and has got nothing to do with the sale or storage of oxygen within the premises of RIMS, Ranchi, is a defence of the petitioner which he can take during the trial but this Court in exercise of the power under Section 482 of the Code of

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Criminal Procedure cannot delve into finding of a fact; as to whether on the date of occurrence, the petitioner was actively involved in the affairs of the M/s Praxair India Pvt. Ltd. or not when there is documentary evidences in the shape of the license issued for manufacturing of Oxygen I.P. in the name of the petitioner, who is stated to be the authorised person being the Plant Manager of M/s Praxair India Pvt. Ltd.. It is then submitted that the facts of

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Lalankumar Singh and Others Vs. State of Maharashtra (supra) are entirely different from the facts of this case, as in this case, there is direct and specific allegation against the petitioner that the petitioner was squarely responsible for the affairs of the M/s Praxair India Pvt. Ltd., and there is documentary evidence in support of such contention of the complainant in shape of the copy of license, which is kept at Page 71 of this brief, wherein it has categorically been mentioned that the petitioner is the authorised person being the Plant Manager of M/s Praxair India Pvt. Ltd.. Hence, it is submitted that this Cr.M.P. being without any merit be dismissed.

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Having heard the submissions made in the Bar and after going through the materials in the record, it is pertinent to refer to the judgment of Hon’ble Supreme Court in the case of “ Dinesh B. Patel. and Others Vs. State of Gujarat and Another”, reported in (2010) 11 SCC 125 paragraph Nos.8 and 10 which reads as under:-

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“8. In our opinion, the factual situation in both the matters is quite different which is apparent from the fact that firstly, the controversy of the complaint not having any necessary averments was not present before the High Court in the reported decision. Secondly, in that case, there was only a bald statement that the respondents were directors of the manufacturers. In the present matter, however, the respondents were not arrayed only because they were the Directors. That is certainly one reason. However, in addition to that, a statement has been made in Para 6 of the complaint that by manufacturing of the medicine concerned for sale, the Company and its Directors had committed the breach of the Act. Thus, there was an

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5 Cr. M.P. No.427 of 2023

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2025:JHHC:17490

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allegation that the directors were privy to the manufacturing of medicine by the Company.

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10. Under the peculiar circumstances of this case and realising the seriousness of the allegations, we would not take a technical view based on pleadings in the complaint. Mr Raichura contended that as per the settled law by this Court in complaints under Section 138 of the Negotiable Instruments Act, 1881 against a company and its directors also specific averment about the active role of directors in running the company has to be made, failing which the directors cannot be proceeded against. The same logic should apply even in the present case. We cannot agree. Firstly, the language of Section 34(2) of the Act substantially differs from the language of Section 141 of the Negotiable Instruments Act. Secondly, here we are dealing with an offence which has a direct impact on public health. We, therefore, would choose not to interfere with the order of the High Court. It will be open for the Directors to show to the trial court that they had nothing to do with the manufacturing process and, therefore, they should not be held liable under Section 34(2) of the Act.”

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Now coming to the facts of the case, the undisputed fact remains that the license for manufacturing Oxygen I.P. has been issued to the M/s Praxair India Pvt. Ltd., Company though the petitioner being the authorised person in capacity of Plant Manager of M/s Praxair India Pvt. Ltd.

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As has rightly been submitted by the learned Public Prosecutor that documentary evidence in the record suggests that the petitioner is squarely responsible for offence of the company. If the petitioner wants to take a plea that the same is not true, certainly the petitioner can take this defence during the trial of the case but this Court at this stage in exercise of power under Section 482 of the Code of Criminal Procedure cannot give a finding of fact, for which evidence is required to be recorded. The undisputed facts remains that M/s Praxair India Pvt. Ltd., run the storage facility within the premises of RIMS for at least 07 days without having a valid license for the same as is required under Rule 62 of the Drugs and Cosmetics Rules, 1945, so there is certainly a clear case made out against the petitioner that the petitioner used to sell and stock oxygen within the premises of RIMS, Ranchi without having a valid license for the same, in contravention of Rule

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62 of the Drugs and Cosmetics Rules, 1945, which gives rise to the offence punishable under Section 27(d) of the Drugs and Cosmetics Act.

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Of course it has rightly been submitted by the learned counsel for the petitioner that the Drugs and Cosmetics Act does not contain any provision numbered as Section 27(d)(ii), so the portion of the order of the learned Special Judge in taking cognizance of the offence punishable under Section 27(d)(ii) of the Drugs and Cosmetics Act is certainly not sustainable in law; in the absence of any such provision in the statute, but so far as the other portion of the said order dated 01.02.2019 by which cognizance has been taken by the Special Judge-cum-Additional Judicial Commissioner-II, Ranchi is concerned, in the considered opinion of this Court at this nascent stage, the same do not warrant interference of this court, in exercise of its power under Section 482 of the Code of Criminal Procedure, since the contention of the petitioner involves disputed questions of fact, which of course, the petitioner can agitate at the time of trial but certainly not a ground for which the entire proceeding be quashed and set aside.

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Accordingly, the Cr.M.P. is allowed in respect of the prayer to quash the portion of the cognizance order dated 01.02.2019 in connection with Drugs and Cosmetics Case No.01 of 2019 for the offence punishable under Section 27(d)(ii) of the Drugs and Cosmetics Act, 1940 while maintaining the remaining portion of the said order.

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In the result, this Criminal Miscellaneous Petition is allowed to the aforesaid extent only.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 02^nd July, 2025 AFR/ Sandeep

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Cr. M.P. No.427 of 2023

Subhrangsu Mukherjee v. the State of Jharkhand

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Subhrangsu Mukherjee v. the State of Jharkhand

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