CRL.MC NO.9290 OF 2019 AGAINST THE ORDER/JUDGMENT IN ST 401/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NILAMBUR

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945`** ## **`CRL.MC NO. 9290 OF 2019 AGAINST THE ORDER/JUDGMENT IN ST 401/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NILAMBUR`** ## **`PETITIONER/S:`** ``` ROSSMARYVARGHESE AGED35YEARS W/O.JOSSYGEORGE THUNAKKALHOUSE.P.O.,NILAMBURKERALA-679329, PROPRITRIXOFM/S.JOELMEDICALSVPBUILDING, THALUKHOSPITALROAD,NILAMBUR ``` ``` BYADVS. P.K.RAMKUMAR SRI.K.A.AUGUSTINE ``` ``` RESPONDENT/S: ``` ``` 1STATEOFKERALA REPBYPUBLICPROSECUTORATHIGHCOURTOFKERALA 2THEDRUGSINSPECTOR (INTELLIGENCEBRANCH,INCHARGE)KOZHIKODE 3M/S.LAENNECPHARMACEUTICALS,IX/365/C-2, - LAKSHMYCOMPLEXKOORKANCHERRY - THRISSUR-680007 (DELETEDASPERORDERDATED21/3/23INCRLMA1/23INCRL MC9290/19) 4C.G.SUNIL S/O.GOVINDAN.C.K, CHITTATHUPARAMBILHOUSE,KUTTUR.P.O., THRISSUR680013(MANAGINGPARTNEROFDEFUNCT, LAENNECTPHARMACEUTICALSIX/365/C-2, LAKSHMICOMPLEXKOORKANCHERYTHRISSUR-680007 ``` ``` CRL.MCNO.9290OF2019 ``` ``` 2 ``` ``` 5M/S.PROSPERDRUGLINES, XVIII/406,NILAMBURRROAD, WANDOOR,MALAPPURAMPIN-679328 (DELETEDASPERORDERDATED21/3/23INCRLMA1/23INCRL MC9290/19) 6SUDHAKARAN.K.C KALARIKKALHOUSE,VAZHANGOD, PATTIKKAD.P.O,MALAPPURAM-679325(PIN), (MANAGINGPARTNEROFDEFUNCTPROSPERDRUGLINES, WANDOOR,MALAPPURAM),PIN-679328 7SINDHUKRISHNAKUMAR SECRETARY, NILAMBURPANCHAYATVANITHACO-OPERATIVEBANKLTD, NO.M555,NILAMBUR(P.O),MALAPPURAM-679329 (LICENSEEOFNEETHIMEDICALSTORE,P.M.COMPLEX, HOSPITALROAD,NILAMBUR) 8C.K.JACOB S/O.C.J.KOSHY, SECRETARY, THENILAMBURSERVICE-OPERATIVEBANKLTDNO.D-1972, CHANDAKKUNNUP.O,NILAMBUR,MALAPPURAM-679349 (LICENSEEOFM/S.NEETHIMEDICALSTORE,NO.XII/110-A, NILAMBURTALUK,HEADQUARTERSHOSPITAL, NILAMBUR.P.O,PIN-679329 BYADVS. ADDL.DIRECTORGENERALOFPROSECUTION SRI.G.SREEKUMAR(CHELUR) SRI.SAJITHKUMARKANGHINGHAT ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 06.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.9290OF2019 ``` ``` 3 ``` ## **ORDER** The petitioner herein is the 7th accused in S.T. No. 401/2019 on the files of the Judicial Magistrate of First Class, Nilambur. In the said case, the allegation against the petitioner is that she has violated the provision of Section 18(a)(i) r/w Section 27(c) of the Drugs and Cosmetics Act, 1940. 2. The prosecution allegation is that Lactum SB (Ceftriaxone and Sulbactam for injection) 1500 mg manufactured by Ultra Drugs Pvt. Ltd. Manpura, which is marketed by the 1st accused in the complaint, was purchased by the petitioner through the wholesale distributors, who have been arrayed as accused Nos. 3 and 4. Petitioners 5 and 6 are the Secretaries of the Nilambur Service Co-Operative Bank, and the petitioner/the 7th accused is the proprietor of M/s Joel Medicals. The Accused 5 to 7 are arrayed as accused on the allegation that they had purchased spurious drugs manufactured by the 1st accused through their distributor, the 3rd accused and that they had stocked for sale the drugs and thereby violated Section 18(a)(i) of the Act punishable under Section 27(c) of the Act. 3. Sri P.K. Ramkumar, the learned counsel appearing for the petitioner, submitted that the drugs seized from the medical shop run by the ``` CRL.MCNO.9290OF2019 ``` ``` 4 ``` petitioner were purchased from an authorized dealer. According to the learned counsel, other than seizing the drugs, the Drugs Inspector has not endeavored to take any sample from the shop of the petitioner, and the same was not sent for analysis as mandated under the law. If that be the case, there is no material to substantiate that the drugs seized from the shop of the petitioner are spurious so as to invite the prosecution under the Act, contends the learned counsel. 4. In response, Sri. Gracious Kuriakose, the learned Additional Director General of Prosecution, fairly submitted that the prosecution records will not disclose that the drugs seized from the shop of the petitioner was sent for analysis 5. I have considered the submissions advanced. 6. I find that there are no materials to suggest that the drugs seized from the shop were spurious or not of standard quality and also that the petitioner had sold any spurious drugs to any person. 7. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offenses to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail ``` CRL.MCNO.9290OF2019 ``` ``` 5 ``` by this Court in **State of Haryana v. Bhajan Lal[1]** . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under: **102.** In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. - (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. - (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. - (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose 1 [1992 Supp (1) SCC 335 ``` CRL.MCNO.9290OF2019 ``` ``` 6 ``` the commission of any offence and make out a case against the accused. - (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. - (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. - (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. - (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. **103.** We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. ## 8. Having considered the facts of the instant case, in the light of the principles laid down by the Apex Court in **Bhajan Lal** (supra), I am of ``` CRL.MCNO.9290OF2019 ``` ``` 7 ``` the view that the uncontroverted allegations made in the FIR and the charge and the evidence collected in support of the same do not disclose the commission of any against the petitioner. In that view of the matter, this Court will be well justified in invoking its powers under section 482 of the Code to quash the criminal proceedings against the petitioner. Resultantly, this petition will stand allowed. Annexure A1 complaint and all further proceedings pursuant thereto against the 7th accused in S.T. No. 401/2019 on the files of the Judicial Magistrate of First Class, Nilambur, will stand quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` CRL.MCNO.9290OF2019 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 9290/2019`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE1TRUECOPYOFTHEIMPUGNEDCOMPLAINTINSTNO.401/19 OFTHEJFCMCOURTNILAMBUR ```