State of Kerala v. M.P. Gangadharan, K.P. Varghese, and Jacob P. Mathews

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931** **Crl.Rev.Pet.No. 248 of 2002()** **-----------------------------** **AGAINST THE ORDER DATED 16/11/2001 IN CRMP 4031 /2001 IN CC.152/1999 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM** **....................** ## **REVN. PETITIONER(S):** **---------------------** **STATE OF KERALA,REP.BY PUBLIC PROSECUTOR** **BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU** **RESPONDENT(S): ACCUSED** **----------------------** **1. M.P.GANGADHARAN, SHELTER. B.T.P. NAGAR,\ TRIVANDRUM.** **2. K.P.VARGHESE, KANIANTHARA HOUSE, STATUE ROAD, NAZRETH,COCHIN 682 002.** ## **3. JACOB P.MATHEWS,THINDIYIL PUTHEMPARAMBIL** - **M.O.WARD,ALAPPUZHA.** **ADV. SRI.JOHN VARGHESE FOR R1 SRI.LAJI SAM ZACHARIA FOR R1** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.Q.BARKATH ALI, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.R.P.No.248 OF 2002** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of November, 2009 ## **ORDER** This is a revision petition filed by the State challenging the order of the Judicial First Class Magistrate , Kottayam dated 16-11-2001 in Crl.M.P.No.4031/2001 in C.C.No.152/99 refusing the request of the prosecution to withdraw the case. 2. The facts in brief are these: The Drugs Inspector, Kottayam filed complaint against the three accused persons alleging offences under Section 18(a(i), 18(a)(iv) and 18(a)(6) of the Drugs and Cosmetic Act 1940. The allegation in the complaint was that Sri.C.K.Mohandas Drug Inspector, Kottayam, CW2 took the sample of Salbutamol tablet I.P. 2 mg. from the District Medical Store, Kottayam on August 11, 1997 and one portion of the sample was sent to Government Analyst , Thiruvananthapuram for analysis. The Analyst by report dated 8-6-1998 reported that the sample is not of standard quality as it contained only 1.178 mg. of Salbutamol I.P. as against the label claim of 2 mg. The sample had Crl.R.P.No.248/2002 Page numbers only 58.9% of stated amount of Salbutamol I.P. The prescribed quantity must be not less and 90% and not more than 110% of the stated amount of Salbutamol I.P. The first accused is the sole proprietor and licencee who manufactured the drug and second accused is the Expert staff responsible for manufacture and third accused is the Analytical Chemist appointed by the first accused. 3. The Public Prosecutor filed a report before the trial court seeking permission to withdraw the case alleging that CW2 who took the sample is now abroad and prosecution may not be able to produce sufficient evidence to sustain the charge and that the Principal Secretary to Government of Kerala as per letter dated October 10, 2001 has directed withdrawal of the case. 4. The trial court found that the withdrawal of the prosecution is not in public interest or in good faith and it will only affect stifling or thwarting the process of law which cannot be supported and further that the first accused is a former Minister and present MLA of the ruling front in Kerala and therefore dismissed the petition refusing to grant permission to withdraw the case. Crl.R.P.No.248/2002 Page numbers 5. The Public Prosecutor appearing for the State argued that the only consideration in withdrawing the case is the satisfaction of the Public Prosecutor considering all relevant materials placed before him, that there cannot be any successful prosecution and that in the present case CW2 the Drug Inspector is abroad. 6. The guidelines for withdrawal of the prosecution has been laid down by the Honourable Supreme Court in **Rahul Agarwal v. Rakesh Jain and another** (2005(2)SCC 337) where in the Supreme Court has observed thus : “ From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the ## Crl.R.P.No.248/2002 Page numbers cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321, Code of Criminal Procedure is to be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be Crl.R.P.No.248/2002 Page numbers punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same.” 7. In the light of the principles laid down in the above decision, I shall consider whether any valid ground is made out for seeking withdrawal. 8. The contention of the petitioner that CW2 is abroad and that therefore there cannot be a successful prosecution in this case cannot be accepted. If the presence of CW2 cannot be procured, the person who filed the complaint CW1 can be examined and all the documents can be proved through him. Further coercive steps can also be taken for the presence of CW2. Therefore, the contention that CW2 is abroad and that therefore the complaint cannot be validly prosecuted cannot be accepted. The Public Prosecutor arguing the revision Crl.R.P.No.248/2002 Page numbers submitted that the second portion of the sample has not been sent to the Central Laboratory as provided in Drugs and Cosmetics Act 1940 which will weaken the case. But the accused has not applied before the lower court as provided under Section 25(4) of the Act for sending the sample to the Central Drugs Laboratory. Therefore, the above objection raised by the prosecution also fails. 9. In the present case, the sample was taken from the District Medical Store , Kottayam which are the medicines to be supplied to government hospitals in the district. The Chemical Analyst has reported that there is reduction in the standard of the sample taken. Further first accused in this case is a former Minister and present MLA . It is clear from the above that the intention behind withdrawal is not in public interest , but to save the accused from the prosecution. Under these circumstances, I am of the view that the lower court has rightly refused to grant permission to withdraw the case. Therefore, I find no merit in the revision petition and the same is hereby dismissed. The case is of the year 1999. Therefore, the learned Magistrate is directed to dispose of the case as early as possible, but not Crl.R.P.No.248/2002 Page numbers later than six months from the date of receipt of a copy of this order. ## **P.Q.BARKATH ALI JUDGE** sv. Crl.R.P.No.248/2002 Page numbers