M/S Zest Pharma and Others v. The Drugs Inspector, Thrissur and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 ``` ## **`CRL.MC NO. 6128 OF 2017`** ## **`AGAINST THE ORDER/JUDGMENT IN CP 347/2013 OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR`** ## **`PETITIONERS/ACCUSED NOS.1 TO 4:`** ``` 1M/S.ZEST PHARMA 275,SECTOR F, SANWER ROAD, INDORE, MADHYA PRADESH 452015, REPRESENTED BY PETITIONERS 2 TO 4 2SUDHIR VORA S/O LATE NAVNEETLAL VORA, AGED 53, BG 99, SCHEME NO 74C,INDORE 3SANJAY ZATAKIA S/O. SHANTILAL ZATAKIA,AGED 41,BF 25, SCHEME NO 54,INDORE 4SHWETA VORA W/O. SUDHIR VORA,AGED 53,BG 99, SCHEME NO 74 C, INDORE BY ADV ``` ``` SRI.P.V.ANOOP ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** ``` 1THE DRUGS INSPECTOR OFFICE OF THE ASSISTANT DRUGS CONTROLLER THRISSUR 680 004 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 ``` ``` CRL.MC NO. 6128 OF 2017 ``` ``` 2 ``` ``` BY ADVS. ``` ``` ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR. ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 6128 OF 2017 ``` ``` 3 ``` ## **`ORDER`** This Crl. M.C. is filed by the petitioners herein challenging Annexure A complaint which is pending before the Chief Judicial Magistrate Court, Thrissur as C.C. No.347/2013. The 1[st] respondent submitted this complaint – Drugs Inspector, against the petitioners, herein alleging offences punishable under Section 18(a)(i) of the Drugs and Cosmetic Act, 1940 read with Section 27(d) of the Act. Initially, cognizance was taken as C.C. No.234/2008 by the Chief Judicial Magistrate, Thrissur and later, the same was renumbered as C.C. No.347/2013. 2. Heard Sri.P.V.Anoop, learned counsel appearing for the petitioners and Sri. Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State. 3. Even though several contentions have been raised in this Crl. M.C., the crucial contention among them is that the learned Magistrate took the cognizance in this case without conducting an inquiry under Section 202 of Cr.P.C. even though the accused persons were having their place of business as well as residence ``` CRL.MC NO. 6128 OF 2017 ``` ``` 4 ``` beyond the territorial jurisdiction of the court concerned. It is pointed out that the Hon’ble Supreme Court has clarified the aforesaid position of law in **Birla Corporation Ltd. and Another** ## **v. Adventz Investments and Holdings Ltd. and Others [2019 KHC 6559].** 4. When I consider the aforesaid contention, I find some force in the same. In the said decision rendered by the hon’ble Supreme Court, it was categorically held that conducting an inquiry under Section 202(1) of Cr.P.C. is mandatory. If the cognizance was taken without such inquiry being made, the entire proceedings are vitiated. 5. In this case, in the light of the aforesaid contention taken, a report was called for from the learned Magistrate as to whether any such inquiry has been contemplated or not. It was reported that no such inquiry was conducted. In such circumstances, in the light of the principles laid down by the Hon’ble Supreme Court in **Birla Corporation Ltd.** (supra), the proceeding which is now pending as C.C. No.347/2013 before the ``` CRL.MC NO. 6128 OF 2017 ``` ``` 5 ``` Chief Judicial Magistrate Court, Thrissur is vitiated. Therefore, I am of the view that this is a fit case in which powers of this Court under Section 482 of Cr.P.C. can be invoked. Accordingly, this Crl. M.C. is allowed, and the act of taking cognizance on Annexure A complaint and all further proceedings in C.C. No.347/2013 on the file of the Chief Judicial Magistrate Court, Thrissur are hereby quashed. The matter is remitted back to the Chief Judicial Magistrate Court, Thrissur, for appropriate orders in this regard. All the contentions of the petitioners and their rights are left open. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` SCS ``` ``` CRL.MC NO. 6128 OF 2017 ``` ``` 6 ``` ## **`APPENDIX OF CRL.MC 6128/2017`** |`PETITIONER`|`ANNEXURES`| |---|---| |`ANNEXURE A`|`TRUE COPY OF THE COMPLAINT FILED BY`| ||`THE FIRST RESPONDENT AGAINST THE`| ||`PETITIONERS DATED 1-12-2008 WHICH IS`| ||`NOW PENDING AS CC NO 347/2013(OLD C.C`| ||`NO 234/2008) ON THE FILE OF THE CHIEF`| ||`JUDICIAL MAGISTRATE COURT, THRISSUR`| |`ANNEXURE B`|`TRUE COPY OF THE FORM NO.1 DATED 18-`| ||`12-2008 ISSUED BY THE CHIEF JUDICIAL`| ||`MAGISTRATE, THRISSUR TO THE DIRECTOR,`| ||`CENTRAL DRUGS LABORATORY, CALCUTTA`| |`ANNEXURE C`|`TRUE COPY OF THE CERTIFICATE OF`| ||`TEST/ANALYSIS BY THE DIRECTOR, CENTRAL`| ||`DRUGS LABORATORY, CALCUTTA (FORM NO 2)`| |`ANNEXURE D`|`TRUE COPY OF THE COPY OF THE ORDER`| ||`DATED 22-12-2010 IN CMP NO 7149/2010`| ||`IN CC NO 234/2008 ON THE FILE OF THE`| ||`CHIEF JUDICIAL MAGISTRATE COURT,`| ||`THRISSUR`| |`ANNEXURE E`|`TRUE COPY OF THE ORDER DATED 10-02-`| ||`2011 IN CRLRP NO 11/2011 ON THE FILE`| ||`OF THE SESSIONS COURT, THRISSUR`| |`ANNEXURE F`|`TRUE COPY OF THE ORDER DATED 02-08-`| ||`2011 IN CRL.M.C NO 1524/2011 OF THIS`| ||`HON'BLE COURT`| |`ANNEXURE G`|`TRUE COPY OF THE PETITION DATED 22-12-`| ||`2016 FILED BY THE PETITIONERS UNDER`| ||`SECTION 259 CR.P.C`| |`ANNEXURE H`|`TRUE COPY OF THE ORDER DATED 23-06-`| ||`2017 IN C.M.P NO 696/2017 IN C.C NO`| ||`347/2013 ON THE FILE OF THE CHIEF`| ||`JUDICIAL MAGISTRATE COURT, THRISSUR`| |`ANNEXURE I`|`TRUE COPY OF THE ORDER DATED 20-07-`| ||`2017 IN C.C NO 347/2013 ON THE FILE OF`| ||`CHIEF JUDICIAL MAGISTRATE COURT,`| ||`THRISSUR`| |`ANNEXURE J`|`TRUE COPY OF THE GAZETTE NOTIFICATION`| ||`DATED 19-11-2001 PUBLISHED IN KEERALA`| ||`GAZETTE DATED 20-12-2001 WHICH IS`| ||`PRODUCED ALONG WITH ANNEXURE A`| ||`COMPLAINT AS DOCUMENT NO.4`| ``` CRL.MC NO. 6128 OF 2017 ``` ``` 7 ``` |`ANNEXURE K`|`TRUE COPY OF THE PROCEEDINGS OF DRUG`| |---|---| ||`CONTROLLER, KERALA STATE ORDER NO.E3`| ||`17597/2003/DC THIRUVANANTHAPURAM DATED`| ||`26-11-2003 WHICH IS PRODUCED ALONG`| ||`WITH ANNEXURE A COMPLAINT AS DOCUMENT`| ||`NO.1`| |`ANNEXURE L`|`TRUE COPY OF THE PROCEEDINGS OF DRUG`| ||`CONTROLLER, KERALA STATE ORDER NO.E3`| ||`1708/2007/DC THIRUVANANTHAPURAM DATED`| ||`19-05-2007 WHICH IS PRODUCED ALONG`| ||`WITH ANNEXURE A COMPLAINT AS DOCUMENT`| ||`NO.2`| |`ANNEXURE M`|`TRUE COPY OF THE PROCEEDINGS OF DRUG`| ||`CONTROLLER,KERALA STATE ORDER`| ||`NO.E3.11220/2007/DC`| ||`THIRUVANANTHAPURAMD ATED 15.11.2007`| ||`WHICH IS PRODUCED ALING WITH ANNEXURE`| ||`A COMPLAINT AS DOCUMENT NO.3`| |`ANNEXURE N`|`TRUE COPY OF THE PARTNERSHIP DEED`| ||`DATED 01-04-2004 PRODUCED AS DOCUMENT`| ||`NO.19 IN ANNEXURE A COMPLAINT`| |`ANNEXURE O`|`TRUE COPY OF THE AGREEMENT (GENERAL`| ||`POWER OF ATTORNEY) DATED 21-09-2005`| ||`PRODUCED AS DOCUMENT NO. 20 IN`| ||`ANNEXURE A COMPLAINT`| |`ANNEXURE P`|`TRUE COPY OF THE LICENCE NO.25/4/94`| ||`GRANTED ON 25-02-1994 PRODUCED AS`| ||`DOCUMENT NO.21 IN ANNEXURE A COMPLAINT`| |`ANNEXURE Q`|`TRUE COPY OF THE LICENCE NO 28/2/94`| ||`GRANTED ON 25-02-1994 PRODUCED AS`| ||`DOCUMENT NO. 22 IN ANNEXURE A`| ||`COMPLAINT`| |`ANNEXURE R`|`TRUE COPY OF THE GOVERNMENT ANALYST`| ||`REPROT DATED 02-08-2007 IN FORM NO.13`| |`ANNEXURE S`|`TRUE COPY OF THE SPECIFIC`| ||`TEST/ANALYSIS PRESCRIBED IN OFFICIAL`| ||`PHARMACOPOEIA 1996 WITH ITS ADDENDUM`| ||`2000 AS FAR AS THE OF 'DISSOLUTION`| ||`TEST OF 'OMEPRAZOLE CAPSULE'`| |`ANNEXURE T`|`TRUE COPY OF THE GENERAL NOTICES`| ||`APPENDED TO INDIAN PHARMACOPEIA 2007`| |`ANNEXURE U`|`TRUE COPY OF THE INDIAN PHARMACOPEIA`| ||`2007 WITH THE DETAILS OF DISSOLUTION`| ``` 8 ``` ## **`CRL.MC NO. 6128 OF 2017`** ## `TEST` ``` ANNEXURE VTRUE COPY OF THE COMPARISION TABLE SHOWING THE TEST PROCEDURE AS PER IP 1996 READ WITH ADDENDUM 2000 AND TEST PROCEDURE AS PER IP 2007 ``` ``` ANNEXURE WTRUE COPY OF THE IN HOUSE CERTIFICATE OF ANALYSIS OF 29-03-2007 ```