M/S Piramal Healthcare (Formerly Piramal Healthcare Ltd) and N. Santhanam v. State of Kerala and The Drugs Inspector, Palakkad

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 22 [ ND ] DAY OF AUGUST 2023 / 31ST SRAVANA, 1945 ``` ``` CRL.MC NO. 2191 OF 2017 ``` ## **`AGAINST THE ORDER/JUDGMENT CC 93/2016 OF CHIEF JUDICIAL MAGISTRATE PALAKKAD`** ## **`PETITIONERS:`** ``` 1 M/S.PIRAMAL HEALTHCARE FORMERLY KNOWN AS PIRAMAL HEALTHCARE LTD, HAVING ITS REGISTERED OFFICE AT PIRAMAL TOWER,GANPATRAO KADAM MAR, LOWER PAREL, MUMBAI - 400013. REPRESENTED BY EXECUTIVE DIRECTOR AND CHIEF FINANCIAL OFFICER N. SANTHANAM. ``` ``` 2 N. SANTHANAM, AGED 60 YEARS AGED 60 YEARS, FORMER EXECUTIVE DIRECTOR AND CHIEF FINANCIAL OFFICER OF PIRAMAL HEALTHCARE LTD, NOW KNOWN AS M/S. PIRAMAL ENTERPRISES, HAVING ITS REGISTERED OFFICE AT PIRAMAL TOWER, GANPATRAO KADAM MAR, LOWER PAREL, MUMBAI - 400013. BY ADVS. ``` ``` GILBERT GEORGE CORREYA ARJUN MAHAJAN BY ORDER SRI.ALAN PAPALI SRI.ANTONY ROBERT DIAS SRI.NISHIL.P.S. SRI.J.VIMAL SRI.A.VELAPPAN NAIR B.RAMAN PILLAI (SR.)(R-260) ``` ## **`RESPONDENTS:`** ``` 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682031. ``` **Crl.M.C No.2191 of 2017** **: 2 :** ``` 2 THE DRUGS INSPECTOR OFFICE OF THE DRUGS INSPECTOR, COURT ROAD, PALAKKAD 678001 ``` ``` (IMPLEADED AS ADDITIONAL R2 VIDE ORDER DATED 11.10.2018 IN CRL.M.A.No.1/2018. ``` ``` SRI. VIPIN NARAYAN, SR. PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **Crl.M.C No.2191 of 2017** **: 3 :** ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure (for short, the Code) seeking to quash all further proceedings in C.C.No.93/2016 on the files of the Chief Judicial Magistrate Court, Palakkad. The said complaint is filed by the State through the Drug Inspector under Section 32 of the Drugs and Cosmetics Act, 1940 (the Act, for short) against the accused for having committed the offences punishable under Section 18 (a)(i) punishable under Section 27(d) of the Act. 2. The brief facts of the case are as under: On 12.5.2009, the Drug Inspector, Palakkad, is stated to have drawn a sample of the drug STEMETIL MD, from M/s. Monarch Pharmaceuticals in accordance with the provisions of Section 23 of the Act. The above drug is stated to have been manufactured by M/s. Piramal Enterprises, the 1st petitioner herein. After seizing the sample in accordance with the provisions of the Act and Rules framed thereunder, one sealed portion was sent to the Drug Testing Laboratory on 13.5.2009. On 13.07.2009, the Govt. analyst, Drug Testing Laboratory, Thiruvananthapuram, gave a report that the collected sample was ‘Not of Standard Quality. It is stated therein that the **Crl.M.C No.2191 of 2017** **: 4 :** content of Prochlorperazine Maleate was not within the limit of Schedule V of the Act. A copy of the report was forwarded to M/s. Monarch Pharmaceuticals and they were directed to furnish the details of the manufacturer. On receiving intimation from the Drug Inspector, the petitioner is stated to have furnished their details. By Annexure-V letter, a copy of the test report and laboratory protocol report was forwarded to the petitioner on 16.12.2009. Immediately thereafter, Annexure-VI application was filed by the Drug Inspector to forward the second sample to the Central Drug Testing Laboratory as requested by the petitioner. The Central Lab issued Annexure-VII report stating that the sample was not of standard quality. Thereafter, on 12.04.2013, a letter was sent to the petitioner by the Drug Inspector calling for information about the persons in charge and responsible for the day-to-day conduct of the business of the company. To the said letter, the petitioner is stated to have responded by issuing Annexure-IX. Thereafter, Annexure-X complaint was lodged before the learned Magistrate on 23.03.2016, purportedly under Section 32 of the Act. 3. Sri. B Raman Pillai, the learned Senior counsel appearing for the petitioner, submitted that the order issuing process to the petitioner is liable **Crl.M.C No.2191 of 2017** **: 5 :** to be interfered with as the complaint was lodged after the statutory period. The learned counsel would point out that the offences alleged against the petitioners are punishable under Sections 18(a)(i) and Section 27(d) of the Drugs and Cosmetics Act which carries imprisonment for up to three years. No application for condonation of delay as contemplated under Section 473 of the Cr.P.C was filed by the Drug Inspector before the court. In the case on hand, the report of the Government Analyst was dated 13.7.2009, and in that view of the matter, the complaint ought to have been filed on or before 13.7.2012. In the case on hand, the complaint was lodged after seven years from the date of knowledge of the commission of the offence. The learned counsel would rely on the law laid down by the Apex Court in **State of Rajasthan vs. Sanjay Kumar[ 1 ]** and it is submitted that this delay is enough and more reason to interdict the prosecution proceedings. Though the petitioners preferred Annexure-III letter on 28.11.2009 and Annexure-IV letter on 08.02.2010 to the Drug Inspector to forward the sample to the Central Laboratory, the same was forwarded only on 19.4.2010. By that time, the shelf life of the sample had expired on April 2010. The valuable right of the petitioners to get the sample reanalyzed from the Central Drugs > 1 [AIR 1998 SC 1919] **Crl.M.C No.2191 of 2017** **: 6 :** Laboratory was thus lost. Reliance is placed on the law laid down in **Medicamen Biotech ltd. Vs. Rubina Bose** [2008 (7) SCC 196] to buttress his contention that on the above ground, the prosecution proceedings are liable to be quashed. 4. I have heard the learned Public Prosecutor and have gone through the records. 5. The question is whether the complaint lodged by the Drug Inspector is barred by limitation. The essence of the allegation against the petitioners is that they had sold drugs that were not of standard quality and thereby violated the provisions of the Act. The samples were drawn on 12.5.2009 and one of the samples was forwarded as per Form 18 of the Act to the Drug Analyst on 13.5.2009. It was on 13.7.2009 that the government analyst issued Annexure-I certificate reporting that the collected sample was not of standard quality as per the report in Form No.13. In **State of Rajasthan Vs. Sanjay Kumar and others** [1998 (5) SCC 82] it was observed by the Apex Court that it was only when the report of the government analyst was received that it would be revealed that the provisions of the Act had been violated and the drugs which are offered for **Crl.M.C No.2191 of 2017** **: 7 :** sale are not of standard quality. It was held that clause (b) of Section 469(1) of the Cr.P.C would be attracted, and it would be from such day that limitation would commence. 6. The Apex Court in **Sarah Mathew v. Institute of Cardio Vascular Diseases[ 2 ]** had occasion to lay down the principles that are relevant for the purpose of computing the period of limitation under Section 468 of the Code. It was held as follows in paragraph 51 of the judgment. **51.** In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559] which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394] lays down the correct law. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC. 7. The observations in Sarah Mathew (supra) were clarified by the Apex Court in **Amritlal v Shantilal Soni and Others[ 3 ]** , wherein after dilating > 2 (2014) 2 SCC 62 > 3 2022 SCC Online SC 266 **Crl.M.C No.2191 of 2017** **: 8 :** ## on the statutory provisions, the principles were expounded thus: 8. In Sarah Mathew, the Constitution Bench of this Court examined two questions thus:— 3. No specific questions have been referred to us. But, in our opinion, the following questions arise for our consideration: - 3.1.(i) Whether for the purposes of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence? - 3.2.(ii) Which of the two cases i.e. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121] or Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559] (which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394]), lays down the correct law? 9. The Constitution Bench answered the aforesaid questions as follows:— 51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559] which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394] lays down the correct law. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 : 1990 SCC (Cri) 646] will have to be restricted to its own facts and it is not the **Crl.M.C No.2191 of 2017** **: 9 :** authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC. 10. Therefore, the enunciations and declaration of law by the Constitution Bench do not admit of any doubt that for the purpose of computing the period of limitation under Section 468 CrPC, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance of the offence. The High Court has made a fundamental error in assuming that the date of taking cognizance i.e., 04.12.2012 is decisive of the matter, while ignoring the fact that the written complaint was indeed filed by the appellant on 10.07.2012, well within the period of limitation of 3 years with reference to the date of commission of offence i.e., 04.10.2009. 8. It was held that the enunciations and declaration of law by the Constitution Bench do not admit of any doubt that for the purpose of computing the period of limitation under Section 468 CrPC, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance of the offence. 9. The maximum punishment that can be imposed for the offence under Section 18(a)(i) punishable under Section 27(d) of the Act is any drug is with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty **Crl.M.C No.2191 of 2017** **: 10 :** thousand rupees. Section 468 speaks about a Bar to take cognizance after the lapse of the period of limitation. The said provision says that no Court shall take cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation. The period of limitation shall be three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. In view of the principles above, in respect of a cause of action that arose on 13.7.2009, that Annexure-X complaint was lodged on 23.03.2016. 10. Of course, the court is well empowered to take cognizance of an offence after the expiry of the period of limitation if it is satisfied that, in the facts and circumstances of the case, the delay has been properly explained or that it is necessary so to do in the interest of justice. However, the said discretion should be judicially exercised and cannot be done in an arbitrary manner. The delay cannot be condoned as a matter of routine without sufficient reasons. It is incumbent upon the learned magistrate to show on record that he applied his mind to the question of limitation and that he was satisfied on the facts and circumstances that the interest of justice demands that cognizance should be taken. Ideally, in cases like the instant case, where **Crl.M.C No.2191 of 2017** **: 11 :** the delay in filing the complaint is more than 7 years, notice ought to have been issued to the accused of the filing of the application for extension of the period of limitation, and the accused ought to have been heard before condoning the same. In the case on hand, all that is stated in the complaint is considerable time has been taken to complete the investigation, and a request was made to condone the delay. However, the learned Magistrate, without adverting to the limitation aspect has taken cognizance.. 11. In **Pepsi Foods Ltd. v. Special Judicial Magistrate[ 4 ]** , the Apex Court had held that the summoning of an accused in a criminal case is a serious matter and the learned Magistrate before issuing process shall endeavor to apply his mind to the facts of the case. It was held as follows in paragraph 28 of the judgment. **28.** Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the > 4 (1998) 5 SCC 749 **Crl.M.C No.2191 of 2017** ## **: 12 :** complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. ## 12. Quite recently, in **Sunil Todi and Others v State of Gujarat** **and Another**[ 5 ] , the Apex Court had occasion to refer to the past precedents, and it was observed as under in paragraph 39 of the judgment: **39.** This Court has held that the Magistrate is duty bound to apply his mind to the allegations in the complaint together with the statements which are recorded in the enquiry while determining whether there is a prima facie sufficient ground for proceeding. In **Mehmood UI Rehman v. Khazir Mohammad Tunda** (2015) 12 SCC 420, this Court followed the dictum in **Pepsi Foods Ltd. v. Special Judicial Magistrate** (1998) 5 SCC 749 and observed that setting the criminal law in motion against a person is a serious matter. Hence, there must be an application of mind by the Magistrate to whether the allegations in the complaint together with the statements recorded or the enquiry conducted constitute a violation of law. The Court observed: “20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial > 5 2021 SCC OnLine 1174 **Crl.M.C No.2191 of 2017** **: 13 :** notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.” *** “22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. 13. In that view of the matter, I am of the considered opinion that the learned Magistrate has issued process to the accused without proper application of mind. The complaint is filed much beyond the period of limitation. In that view of the matter, I hold that the petitioner is entitled to succeed. **==> picture [455 x 84] intentionally omitted <==** **Crl.M.C No.2191 of 2017** **: 14 :** This petition will stand allowed. Annexure-X complaint against the petitioners in CC No.93/2016 on the files of the Chief Judicial Magistrate Court, Palakkad are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** PS /22/8/2023 **Crl.M.C No.2191 of 2017** **: 15 :** ## **`APPENDIX OF CRL.MC 2191/2017`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE 1 TRUE COPY OF THE REPORT OF THE GOVERNMENT ANALYST DATED 13.07.2009. ``` ``` ANNEXURE II TRUE COPY OF THE LETTER DATED 27.10.2009 ISSUED TO THE PETITIONER BY THE DRUG INSPECTOR. ``` ``` ANNEXURE III TRUE COPY OF THE LETTER DATED 28.11.2009 ISSUED BY THE 1ST PETITIONER TO THE DRUG INSPECTOR, PALAKKAD. ``` ``` ANNEXURE IV TRUE COPY OF THE LETTER DATED 18.02.2010 ISSUED BY THE 1ST PETITIONER TO THE DRUG INSPECTOR, PALAKKAD. ``` ``` ANNEXURE V TRUE COPY OF THE LETTER DATED 16.12.2009 ISSUED TO THE PETITIONER BY THE DRUG INSPECTOR, PALAKKAD. ``` ``` ANNEXURE VI TRUE COPY OF THE CRIMINAL MISCELLANEOUS PETITION FILED BEFORE THE COURT BELOW DATED 19.04.2010. ``` ``` ANNEXURE VII TRUE COPY OF THE REPORT OF THE CENTRAL DRUGS TESTING LABORATORY DATED 28.05.2010. ``` ``` ANNEXURE VIII TRUE COPY OF THE LETTER ISSUED TO THE PETITIONER COMPANY DATED 12.04.2013 BY THE DRUG INSPECTOR, PALAKKAD. ``` ``` ANNEXURE IX TRUE COPY OF THE LETTER DATED 17.05.2013 ISSUED BY THE PETITIONER TO THE RESPONDENT IN RESPONSE TO THE LETTER DATED 12.04.2013. ``` **Crl.M.C No.2191 of 2017** **: 16 :** ``` ANNEXURE X TRUE COPY OF THE COMPLAINT CC93/16 DATED 23.03.2016 FILED BEFORE THEN HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD. ``` ``` ANNEXURE XI TRUE COPY OF THE ORDER DATED 10.05.2016 ISSUED BY THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD SUMMONING THE PETITIONERS. ```