High Court of KeralaSingle JudgePetition disposed of; liberty to raise contenti...

M/S. Adroit Pharmaceutical Pvt Ltd & Ors v. Drugs Inspector Intelligence Branch Office of the Assistant Drugs Controller South Bazar, Kannur & State of Kerala

Case / Petition Number:Crl.MC No. 7223 of 2014

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Ramakrishnan, J.
Judgment Date
2015-12-01
Court Decision / Holding
This petition is disposed of with liberty to the petitioners to raise their contentions before the Magistrate and to seek appropriate orders in view of Anandavel’s case. Interim stay is vacated and Crl.M.A. No.11650/2014 is dismissed. The Magistrate shall consider the absence of particulars and the contentions raised before it and may proceed accordingly; the petitioners are permitted to appear through counsel.
Final Disposition
Petition disposed of; liberty to raise contentions before the Magistrate; interim stay vacated; no quashing at this stage.

Parties to the Case

Appellants / Petitioners

  • M/S. Adroit Pharmaceutical Pvt Ltd
  • Dr. Abhimanyu H. Kukreja, Director, M/S. Adroit Pharmaceutical Pvt. Ltd.
  • Sanjay C. Kukreja, Director, M/S. Adroit Pharmaceutical Pvt. Ltd.
  • Bhupesh Kukreja, Director, M/S. Adroit Pharmaceutical Pvt. Ltd.

Respondents

  • The Drugs Inspector Intelligence Branch Office of the Assistant Drugs Controller, South Bazar, Kannur-670002
  • The State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam-682031

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri S. U. Nazar
  • • Sri B. Vinod
  • • Sri I. V. Pramod
  • • Sri Mansoor B. H.
  • • Smt. P. Usha Kumari

Counsels for Respondents

  • • Sri Reji Joseph, Public Prosecutor

Case Synopsis & Summary

The petition before the Kerala High Court challenges the proceedings in STC No.1908/2009 pending in the Judicial First Class Magistrate Court, Thalassery, under Section 482 CrPC, seeking quashing of the criminal proceedings against M/s Adroit Pharmaceutical Pvt. Ltd. and four of its directors for alleged offences under the Drugs and Cosmetics Act, 1940 (Sections 18(1)(a) read with 27(d)), as well as related provisions (Sections 34 and 23(2) and Rule 46 of the Drugs and Cosmetics Rules, 1945). The petition contends that the day-to-day responsibility for the company was not established as required by Section 34, and that the procurement of samples and the certification process violated statutory provisions (including Section 23(2)) and Rule 46; Annexure A3 allegedly lacks the full analysis protocol. The petition relies on Anandavel v. Food Inspector and a related dictum that where particulars of offence have not been read over, the Magistrate may terminate proceedings. The court directed a report from the Magistrate on whether particulars were read and, upon finding they were not read, indicated that the petition could be pursued before the Magistrate with a view to appropriate orders. Ultimately, the court disposed of the petition, not quashing; it granted liberty to the petitioners to raise contentions before the Magistrate and vacated an interim stay.

Provisions of Law Cited

CrPC Section 482Drugs and Cosmetics Act, 1940: Section 18(1)(a) read with Section 27(d)Drugs and Cosmetics Act, 1940: Section 34Drugs and Cosmetics Act, 1940: Section 23(2)Drugs and Cosmetics Rules, 1945: Rule 46

Legal Doctrines & Maxims

  • State of Haryana v. Briju Lal Mittal and Others (1998) 5 SCC 343 – principle that absence of clear responsibility for day-to-day affairs can affect maintainability of the complaint under the Drugs and Cosmetics Act.
  • Anandavel v. Food Inspector (2010) 3 KLT 49 – principle that where particulars of offence have not been read over, the Magistrate may drop proceedings; remedy under CrPC 482.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that there is no maintainable complaint under the Drugs and Cosmetics Act as no responsible person for day-to-day affairs has been identified under Section 34, the procurement of samples and the certificate are allegedly in violation of the Act, and Annexure A3 does not contain the full protocol as required under Rule 46. They rely on the lack of particulars of offence being read to the accused and invoke CrPC 482 to quash the proceedings; they rely on Anandavel’s case for an exit route if essential particulars are not supplied.

Contentions of Respondents

The respondents argue for continuation of proceedings, maintaining that the complaint is under the Drugs and Cosmetics Act and that the magistrate should proceed; they contend that technical deficiencies or the absence of some particulars do not automatically render the proceedings invalid; the prosecution should be afforded opportunity to present its case, with the court exercising appropriate discretion.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
State of Haryana v. Briju Lal Mittal and Others1998 5 SCC 343PositiveCited to support that absence of a clear responsible person for day-to-day affairs can render a complaint not maintainable under the Drugs and Cosmetics Act; the court relied on this dictum in deciding the maintainability of the complaint.
Anandavel v. Food Inspector2010 (3) KLT 49PositiveCited regarding the remedy when particulars of offence have not been read; empowers the Magistrate to consider and possibly drop proceedings; the High Court used this to direct that contentions be raised before the Magistrate.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 1ST DAY OF DECEMBER 2015/10TH AGRAHAYANA, 1937** **Crl.MC.No. 7223 of 2014 () ---------------------------** **AGAINST THE JUDGMENT IN STC 1908/2009 of J.M.F.C.,THALASSERY** **PETITIONERS/PETITIONERS/ACCUSED: --------------------------------** **1. M/S.ADROIT PHARMACEUTICAL PVT LTD 46, GARBIA MAIDAN, BASTI PRECINCT NAGPUR-440008 REPRESENTED BY DIRECTOR DR. ABHIMANYU H.KUKREJA.** **2. DR.ABHIMANYU H.KUKREJA DIRECTOR, M/S. ADROIT PHARMACEUTICAL PVT. LTD., 46 GARBIA MAIDAN, BASTI PRECINCT, NAGPUR-440008.** **3. SANJAY C.KUKREJA** **DIRECTOR, M/S. ADROIT PHARMACEUTICAL PVT. LTD., 46 GARBIA MAIDAN, BASTI PRECINCT, NAGPUR-440008.** ## **4. BHUPESH KUKREJA** **DIRECTOR, M/S. ADROIT PHARMACEUTICAL PVT. LTD., 46 GARBIA MAIDAN, BASTI PRECINCT, NAGPUR-440008.** **BY ADVS.SRI.S.U.NAZAR SRI.B.VINOD SRI.I.V.PRAMOD SRI.MANSOOR.B.H. SMT.P.USHAKUMARI** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **------------------------------------** **1. THE DRUGS INSPECTOR INTELLIGENCE BRANCH OFFICE OF THE ASSISTANT DRUGS CONTROLLER SOUTH BAZAR, KANNUR-670002.** **2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY PUBLIC PROSECUTOR REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-12-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 7223 of 2014 ()** ## **---------------------------** ## **APPENDIX** **PETITIONERS'ANNEXURES.** **-----------------------** **ANNEXURE A1: A CERTIFIED COPY OF THE COMPLAINT FILED BY THE IST RESPONDENT DATED 13.8.2009.** **ANNEXURE A2: A CERTIFIED COPY OF THE CERTIFICATE OF GOVERNMENT ANALYSIS DATED 10.2.2009 OF THE GOVERNMENT ANALYST, DRUGS TESTING LABORATORY, THIRUVANANTHAPURAM.** **ANNEXURE A3: A TRUE COPY OF THE CERTIFICATE OF ANALYSIS NO.2-1/2009SS/CC-127/714 DATED 11.9.2009 OF THE DIRECTOR, CENTRAL DRUGS LABORATORY.** ## **RESPONDENTS' ANNEXURES:NIL** **---------------------** **/TRUE COPY/** **P.S TO JUDGE** **cl** ## **K. RAMAKRISHNAN, J.** .................................................. Crl.M.C.No.7223 of 2014 ....................................................... Dated this the 1[st] day of December, 2015 ## **O R D E R** This petition is filed by the petitioners to quash the proceedings in STC.No.1908/2009 on the file of the Judicial First Class Magistrate Court, Thalassery under section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that petitioners were arrayed as accused 1 to 4 in STC.No.1908/2009 on the file of the Judicial First Class Magistrate Court, Thalassery facing prosecution under the provisions of the Drugs and Cosmetics Act. The complainant, Drug Inspector, sought to prosecute M/s.Adroit Pharmaceuticals Pvt.Ltd and three of its Directors for the offence under section 18(i)(a) read with 27(d) of the Drugs and Cosmetics Act, 1940. The petitioners appeared before the learned Magistrate and they were enlarged on bail. The Drug Inspector had not caused any investigation as to who is responsible for the day-to-day affairs of the company as per section 34 of the Drugs and Cosmetics Act and the procurement of sample is illegal and in violation of section 23(2) of the Drugs and Cosmetics Act. Annexure A3 does not contain the full 'protocol of analysis' as mandated under Rule 46 of the 2 Crl.M.C.No.7223 of 2014 Drugs and Cosmetic Rule, 1945. Since it was not mentioned as to who is responsible for the day-to-day affairs of the company, the complaint is not maintainable in view of the dictum laid down in **State of Haryana v. Briju Lal Mittal and others** (1998 5 SCC 343). So the petitioners have no other remedy except to approach this Court to quash the proceedings. 3. Considering the fact that the case is of the year 2009, this Court has called for a report from the Judicial First Class Magistrate Court, Thalassery as to whether particulars of offence were read over or not. If particulars of offence were read over, then it is not possible for the court below to consider the question as to whether complaint is maintainable or not. On the basis of the directions of this Court, a report has been received from the Judicial First Class Magistrate Court, Thalassery stating that particulars of offence have not been read over in this case and the Magistrate had informed the counsel for the accused and the complainant that if they are able to convince that there is no particulars of offence to be read over to the accused, further proceedings can be dropped in view of the dictum laid down in **Anandavel v.Food Inspector** (2010 (3) KLT 49). Crl.M.C.No.7223 of 2014 3 4. Heard Sri. B.H Manzoor, counsel appearing for the petitioners and Sri. Reji Joseph, Public Prosecutor appearing for the respondents. 5. Considering the fact that no particulars of offence have been read over, in view of the dictum laid down in the decision reported in **Anandavel's case** (cited supra), the Magistrate will not be precluded from prematurely terminating the proceedings. It is also mentioned in the report that particulars of offence have not been read over to the accused persons so far. So the petitioners are at liberty to convince the court below in view of the dictum laid down in the decision reported in **Anandavel's case** (cited supra) that even if the entire allegations are accepted, there is no ingredient of offence made out for the purpose of reading of particulars of offence as against the petitioners and if they were able to convince the Magistrate regarding the same, the Magistrate is at liberty to consider the same and pass appropriate orders in view of the dictum laid down in **Anandavel's case** (cited supra).So under the circumstances when such a remedy is available to the petitioners, this Court feels that it is not a fit case to invoke the power under section 482 of the Code to quash the 4 Crl.M.C.No.7223 of 2014 proceedings at this stage. This petition is disposed of with liberty to the petitioners to raise the contentions before the Magistrate as no particulars of offence have been read over so far and the Magistrate shall consider the same and dispose of the same in view of the dictum laid in **Anandavel's case** (cited supra). Till then, the petitioners can be permitted to appear through their counsel. Interim stay granted is vacated and Crl.M.A. No.11650/2014 is dismissed. With the above directions and observations, this petition is disposed of. Office is directed to communicate a copy of this order to the court below at the earliest. **==> picture [27 x 12] intentionally omitted <==** ## **K. RAMAKRISHNAN, JUDGE.** /true copy/ P.S to Judge cl Crl.M.C.No.7223 of 2014 5 Crl.M.C.No.7223 of 2014 6