M/S Zee Laboratories v. Drug Inspector and State of Kerala

**“C.R”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** ## **Crl.MC.No.5707 OF 2019(C)** **(CC NO.262/2018 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM, KOZHIKODE)** ## **PETITIONERS/ACCUSED NOS.1 & 2:** **1 M/S. ZEE LABORATORIES, 47,INDUSTRIAL AREA, PAONTA SAHIB, HIMACHAL PRADESH-173025, REPRESENTED BY ITS PARTNER, RAJEEV MUKUL, AGED 55 YEARS, S/O JAGADEEP CHAND, RESIDING AT 251-OLD HOUSING BOARD COLONY, KARNAL, HARYANA. 2 RAJEEV MUKUL, AGED 55 YEARS, S/O.JAGADEEP CHAND, RESIDING AT 251-OLD HOUSING BOARD COLONY, KARNAL, HARYANA.** **BY ADVS. SRI.P.V.KUNHIKRISHNAN SRI.P.V.ANOOP** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 DRUG INSPECTOR, OFFICE OF THE ASSISTANT DRUG CONTROLLER, CIVIL STATION, KOZHIKODE, PIN-670020. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **R2 BY SMT. K. SHEEBA, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.08.2019, ALONG WITH Crl.MC.5713/2019(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MCs.5707 & 5713 OF 2019 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** **Crl.MC.No.5713 OF 2019(D)** **(CC NO.261/2018 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM, KOZHIKODE)** ## **PETITIONERS/ACCUSED NOS.1 & 2:** **1 M/S.ZEE LABORATORIES, 47, INDUSTRIAL AREA, PAONTA SAHIB, HIMACHAL PRADESH-173025, REPRESENTED BY ITS PARTNER, RAJEEV MUKUL, AGED 55 YEARS, S/O. JAGADEEP CHAND, RESIDING AT 251-OLD HOUSING BOARD COLONY, KARNAL, HARYANA. 2 RAJEEV MUKUL, AGED 55 YEARS, S/O. JAGADEEP CHAND, RESIDING AT 251-OLD HOUSING BOARD COLONY, KARNAL, HARYANA.** **BY ADVS. SRI.P.V.KUNHIKRISHNAN SRI.P.V.ANOOP** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 DRUG INSPECTOR, OFFICE OF THE ASSISTANT DRUG CONTROLLER, CIVIL STATION, KOZHIKODE, PIN-670 020.** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **R2 BY SMT. K. SHEEBA, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.08.2019, ALONG WITH Crl.MC.5707/2019(C), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MCs.5707 & 5713 OF 2019 3** ## **ORDER** The 1[st] petitioner is a Pharmaceutical Company having its registered office in the State of Himachal Pradesh and the 2[nd] petitioner is one of its partners. A complaint alleging violation of various provisions of the Drugs and Cosmetics Act, 1940 was filed before the Judicial Magistrate of First Class, Kunnamangalam. The case was taken on file by the learned Magistrate and process was issued for appearance of the accused. Since they failed to appear, coercive proceedings have been initiated. It is at this juncture that the petitioners have approached this Court challenging the initiation of prosecution proceedings against them. 2. Sri.P.V.Kunhikrishnan, the learned counsel appearing for the petitioners, raised numerous contentions before this Court to bolster the case of the petitioners that the prosecution proceedings initiated against them cannot be sustained. He, however, focused his main attention on the failure of the court below to strictly comply with Section 202(1) of the Cr.P.C. According to the learned counsel, Section 202(1) mandates that in those cases, where the accused is residing at a place beyond the area in which the learned Magistrate exercises his jurisdiction, an inquiry should be conducted by the learned Magistrate before deciding to issue process. It is urged by the learned counsel that the said provision has been held to be mandatory by the Apex Court in **Crl.MCs.5707 & 5713 OF 2019 4** **Vijay Dhanuka and Others** v. **Najima Mamtaj and Others[1] , Brila Corporation Ltd. and Another** v. **Adventz Investments and Holdings Ltd. and Others[2]** and **Abhijit Pawar** v. **Hemant Madhukar Nimbalkar and Another[3] .** 3. In view of the assertion made by the learned counsel appearing for the petitioners, a report was called for from the learned Magistrate. In report dated 20.8.2019, it has been stated that the inquiry contemplated u/s.202(1) Cr.P.C. has not been conducted in both cases. 4. I have considered the submissions advanced by the learned counsel appearing for the petitioners, the learned Public Prosecutor and have perused the report of the learned Magistrate. 5. It is the crystalized position of law that in those cases, where the accused is residing at a place beyond the area in which the learned Magistrate exercises his jurisdiction, it is mandatory on the part of the learned Magistrate to conduct an inquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, which came into effect from 22.06.2006. The amended provision casts an obligation on the Magistrate to conduct inquiry or direct > 1 [2014 (14) SCC 638] > 2 [2019 KHC 6559] > 3 [2017 (3) SCC 528] ## **Crl.MCs.5707 & 5713 OF 2019 5** investigation before issuing the process, so that false complaints can be filtered and rejected. 6. The Hon’ble Supreme Court in **Vijay Dhanuka** (supra), had occasion to speak on the essence and purpose of the amendment and it was held as under: “12. The words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows: “False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.” The use of the expression “shall” prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. **Crl.MCs.5707 & 5713 OF 2019 6** The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.” 7. The very same view was taken in **Mehmood Ul Rehman** v. **Khazir Mohammad Tunda[4]** , **Abhijit Pawar** v. **Hemant Madhukar Nimbalkar and Another[5]** and in **Brila Corporation Ltd. and Another** v. **Adventz Investments and Holdings Ltd. and Others[6]** . 8. Thus, the requirement of conducting inquiry or directing investigation before issuing process is not an empty formality. While elaborating on the said aspect, the Apex Court in **Vijay Dhanuka** (supra), has observed that the exercise by the Magistrate for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused is nothing, but an inquiry envisaged under Section 202 of the Code. As is evident from the report, > 4 [2015 (12) SCC 420] 5 [2017 (3) SCC 528] > 6 [2019 KHC 6559] **Crl.MCs.5707 & 5713 OF 2019 7** no such inquiry has been conducted in the instant case. 9. For the aforementioned reasons, the order issuing process will stand set aside and the non-bailable warrant issued against the petitioners are quashed. C.C. Nos.261 of 2018 and 262 of 2018 are remanded back to the learned Magistrate for fresh consideration in accordance with law and in strict compliance with the procedure contemplated under Section 202 of the Cr.P.C. These petitions are disposed of with the above observations. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** DSV/22.8.19 //TRUE COPY// P.A. TO JUDGE **Crl.MCs.5707 & 5713 OF 2019 8** ## **APPENDIX OF Crl.MC 5707/2019** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A**|**TRUE COPY OF THE COMPLAINT FILED BY THE 1ST**| |---|---| ||**RESPONDENT DATED 30.04.2018 WHICH IS NOW**| ||**PENDING AS C.C.NO.262/2018 ON THE FILE OF**| ||**THE JUDICIAL FIRST CLASS MAGISTRATE**| ||**COURT,KUNNAMANGALAM.**| |**ANNEXURE B**|**TRUE COPY OF THE RELEVANT PAGES OF THE**| ||**TENDER CONDITIONS FOR THE PROCUREMENT OF**| ||**DRUGS OF THE KMSCL.**| |**ANNEXURE C**|**TRUE COPY OF THE CERTIFICATES OF ANALYSIS**| ||**IN ZEE LABORATORIES DATED 04.02.2015 OF**| ||**BATCH NO.715-70 AMOXYLLIN ORAL SUSPENSION.**| |**ANNEXURE D**|**TRUE COPY OF THE ENVELOPE OF 'AMOXHYLLIN**| ||**ORAL SUSPENSION'(ENLARGED ONE).**| |**ANNEXURE E**|**A COPY OF THE RECEIPT IN FORM 17A DATED**| ||**11.09.2015.**| |**ANNEXURE F**|**TRUE COPY OF THE CASE DETAILS OF**| ||**C.C.N.262/2018 ON THE FILE OF JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT,KUNNAMANGALAM.**| |**ANNEXURE G**|**A COPY OF THE CERTIFICATE OF TEST OR**| ||**ANALYSIS BY GOVERNMENT ANALYST IN FORM**| ||**NO.13-SW/3922/15/DTL DATED 03.12.2015**| ||**PRODUCED ALONG WITH ANNEXURE A COMPLAINT.**| |**ANNEXURE H**|**TRUE COPY OF THE LABORATORY PROTOCOL**| ||**NO.1462/15 DATED 02.12.2015 PRODUCED ALONG**| ||**WITH ANNEXURE A COMPLAINT**| |**ANNEXURE I**|**TRUE COPY OF THE RELEVANT PAGES OF SPECIFIC**| ||**TEST/ANALYSIS PRESCRIBED IN OFFICIAL**| ||**PHARMACOPOEIA AS FAR WAS THE TEST FOR**| ||**'DISSOLUTION',RELATED SUBSTANCES AND ASSAY**| ||**FOR 'AMODYLLIN ORAL SUSPENSION'**| |**ANNEXURE J**|**TRUE COPY OF THE GAZETTE NOTIFICATION DATED**| ||**19.11.2001 PUBLISHED IN KERALA GAZETTE**| ||**DATED 20.12.2001 WHICH IS PRODUCED ALONG**| ||**WITH ANNEXURE A COMPLAINT AS DOCUMENT NO.1.**| **Crl.MCs.5707 & 5713 OF 2019 9** ## **RESPONDENT'S/S EXHIBITS:** **NIL** ## **APPENDIX OF Crl.MC 5713/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT DATED 26.04.2018 WHICH IS NOW PENDING AS C.C.NO.261/2018 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMANGALAM.** **ANNEXURE-B TRUE COPY OF THE RELEVANT PAGES OF THE TENDER CONDITIONS FOR THE PROCUREMENT OF DRUGS OF THE KMSCL. ANNEXURE-C TRUE COPY OF THE CERTIFICATE OF ANALYSIS IN ZEE LABORATORIES DATED 16.06.2014 OF BATCH NO.414792 OF 'RISPERIDONE TABLET'. ANNEXURE-D TRUE COPY OF THE ENVELOP OF 'RISPERIDONE TABLET' (ENLARGED ONE). ANNEXURE-E A COPY OF THE RECEIPT IN C.C.NO.261/2018 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMANGALAM. ANNEXURE-F TRUE COPY OF THE CERTIFICATE OF TEST OR ANALYSIS BY GOVERNMENT ANALYST IN FORM NO.13SW/3637/14/DTL DATED 06.05.2015 PRODUCED ALONG WITH ANNEXURE A COMPLAINT. ANNEXURE-G A COPY OF THE LABORATORY PROTOCOL NO.1386/14 DATED 06.05.2015 PRODUCED ALONG WITH ANNEXURE A COMPLAINT. ANNEXURE-H TRUE COPY OF THE RELEVANT PAGES OF SPECIFIC TEST/ANALYSIS PRESCRIBED IN OFFICIAL PHARMACOPOEIA AS FAR WAS THE TEST FOR 'DISSOLUTION, RELATED SUBSTANCES AND ASSAY FOR 'RISPERIDONE TABLET”. ANNEXURE-I TRUE COPY OF THE GAZETTEE NOTIFICATION DATED 19.11.2001 PUBLISHED IN KERALA GAZETTE DATED 20.12.2001 WHICH IS PRODUCED ALONG WITH** **Crl.MCs.5707 & 5713 OF 2019 10** ## **ANNEXURE A COMPLAINT AS DOCUMENT NO.1.** **ANNEXURE-J TRUE COPY OF THE PROCEEDINGS OF THE DRUG CONTROLLER, KERALA STATE DATED 27.04.2013 PRODUCED AS DOCUMENT NO.3. ANNEXURE-K TRUE COPY OF THE PROCEEDINGS OF THE DRUG CONTROLLER, KERALA STATE DATED 09.06.2016 PRODUCED AS DOCUMENT NO.2.** - **ANNEXURE-L TRUE COPY OF THE PARTNERSHIP DEED DATED 09.10.2003 WHICH IS PRODUCED ALONG WITH ANNEXURE A COMPLAINT AS DOCUMENT NO.19.** - **ANNEXURE-M TRUE COPY OF THE LICENSE NO.MNB/05/115 DATED 06.04.2005 FOR MANUFACTURING ISSUED IN FORM 25 AND FORM 28 TO THE 1ST PETITIONER WHICH IS PRODUCED AS DOCUMENT NO.22 IN THE COMPLAINT.** - **ANNEXURE-N TRUE COPY OF THE CERTIFICATE OF RENEWAL OF LICENSE TO MANUFACTURE FROM 06.04.2005 WHICH IS PRODUCED AS DOCUMENT NO.23 IN THE COMPLAINT.** - **ANNEXURE-O TRUE COPY OF THE SUPPLEMENTARY PARTNERSHIP DEED DATED 10.01.2014.** - **ANNEXURE-P TRUE COPY OF THE UNDERTAKING/AFFIDAVIT OF MR.AMIT KUMAR SRIVASTAVA DATED 21.05.2014.** - **ANNEXURE-Q TRUE COPY OF THE UNDERTAKING/AFFIDAVIT OF MR.ANURAG PANDEY DATED 22.01.2013.** - **ANNEXURE-R TRUE COPY OF THE UNDERTAKING/AFFIDAVIT OF MR.PARVEEN MISRA DATED 10.07.2014.** - **ANNEXURE-S TRUE COPY OF THE UNDERTAKING/AFFIDAVIT OF MR.RAJ KUMAR.** - **RESPONDENT'S/S EXHIBITS:** **//TRUE COPY// P.A.TO JUDGE**