Crl. Misc. No. M- 1611 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 1611 of 2009 Date of decision: January 28, 2009 Narinder Bali and another ….. Petitioners Versus State of Punjab …. Respondent Present: Mr. B.S. Bhalla, Advocate for the petitioners. *** S.S. SARON, J. This petition under Section 482 of the Code of Criminal Procedure (“CrPC” – for short) has been filed for quashing complaint No.101 dated 26.11.2007 (Annexure P2) that has been filed against the petitioners under Section 18 (a)(i) with reference to Section 17-B and Section 18 (c) punishable under Sections 27(c) and 27 (b)(ii) of the Drugs and Cosmetics Act, 1940 (‘Act’-for short) and the Drugs and Cosmetics Rules, 1945 (‘Rules’-for short) framed thereunder as also the summoning order dated 26.11.2007 (Annexure P-3) passed by the learned Chief Judicial Magistrate, Moga. According to the petitioners, they are engaged in the business of manufacturing medicines for which they have a licence. They have been manufacturing a medicine by the name of GL-Spasgan for the last many years. On one occasion, they were issued a letter dated 04.06.2003 (Annexure P-1) by the State Drug Controller, Haryana. It was mentioned therein that the product GL-Spasgan tablets had been declared as not of standard quality by the Government Analyst, Haryana vide test report No.749 dated 17.02.2003. A show cause notice was served upon petitioner No.2 under Rule 85(2) of the Rules. The reply filed to the show cause notice after consideration was found unsatisfactory. Accordingly, permission Crl. Misc. No. M- 1611 of 2009 2 to manufacture GL Spasgan tablets was suspended for a period of one month from the date of receipt of the letter. Thereafter on 18.09.2003, the Drug Inspector, Moga inspected the shop of one M/s Friends Medical Store, Dharamkot Distt. Moga. At that time, Shri Rajesh Kumar Proprietor of M/s Friends Medical Store was present. Two samples of allopathic drug for test and analysis after intimating Shri Rajesh Kumar in Form No.17 were taken. Sample of the drug GL-Spasgan manufactured in May, 2003 by petitioner No.2 and the expiry date of which, was of 2006 was taken. The said sample was analyzed by the Government Analyst, Punjab, Chandigarh and it was declared as sub-standard. The Drug Inspector Moga after receiving the report asked M/s Friends Medical Store to disclose the name and particulars of the person along with detail from whom the drug in question was purchased. M/s Friends Medical Store replied to the Drug Inspector that the drug had been purchased from National Surgical Company, Fauji Market, Moga vide Bill No.7786 dated 17.09.2003. The Drug Inspector on 09.12.2004 issued notice to National Surgical Company, Fauji Market, Moga to disclose the name and other particulars of the person along with other details from whom the drug in question was purchased. The National Surgical Company replied to the Drug Inspector that it had purchased the drug from petitioner No.2 vide invoice No.1755 dated 15.09.2003. The Drug Inspector then sent a registered parcel containing one sealed portion of the drug in question along with a forwarding letter No.55 dated 11.01.2005 to the petitioners. After completing the formalities, the complaint (Annexure P-2) was filed. It has inter alia been alleged in the said complaint (Annexure P-2) that the State Drug Controller, Haryana vide letter No.2017-4 Drugs-1-2006/6987 dated 15.11.2006 informed the State Drug Controller, Punjab, Chandigarh that the Firm M/s Garratte Laboratories, Madanpur (petitioner No.2) had not been granted permission to manufacture the tablet Spasgan in the year 2003 to 2004. The relevant Crl. Misc. No. M- 1611 of 2009 3 record in 42 leaves was also submitted with the complaint (Annexure P-2). Photocopy of the letter dated 15.11.2006 was enclosed as Annexure P-24 and the relevant record in 41 leaves as Annexure P-24/I with the complaint (Annexure P-2). The Drug Inspector, Ludhiana sent a letter to the State Drug Controller, Punjab, Chandigarh requesting him to issue prosecution orders vide letter No. Drugs/2007/441 dated 21.2.2007. In response the State Drug Controller issued prosecution orders vide letter No. Drugs (1) Pb. 2007/6664 dated 6.6.2007 under Section 18(a)(i) read with Section 17-B punishable under Section 27(c) of the Act. It is also alleged that the petitioners violated Section 18(c) punishable under Section 27(b)(ii) of the Act/Rules. The office copy of the letter dated 21.2.2007 was enclosed as Annexure P-25 and original prosecution orders as Annexure P-25/1 with the complaint (Annexure P-2). On the basis of the documents produced, the learned Chief Judicial Magistrate, Moga, vide order dated 26.11.2007 (Annexure P3) dispensed with the recording of preliminary evidence. A perusal of the file and other documents, it was observed by the learned Chief Judicial Magistrate, Moga shows that prima facie there were sufficient grounds to proceed against the accused for having committed offences punishable under Section 18(a) read with Section 17-B (d) punishable under Sections 27(c) and 18(c) under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940. Accordingly, the respondents were ordered to be summoned. Learned counsel for the petitioners has contended that in terms of letter dated 4.6.2003 (Annexure P1), the State Drug Controller, Haryana had only suspended the licence of the petitioners for a period of one month from the date of receipt of the letter as the reply to the show cause notice was found unsatisfactory. It is submitted that the product of GL Spasgan was not found spurious. It is further contended that the Drug Inspector purchased GL-Spasgan vide Bill No.11983 in the Crl. Misc. No. M- 1611 of 2009 4 sum of Rs.24/-. However, in the form that he filled at the spot, it is mentioned that he took sample of BL-Spargan. Therefore, it was clear that sample of medicine BL- Spargan had been sent. The Government Analyst examined the sample purporting it to be that of BL-Spargan. As such, a wrong sample has been analyzed; besides, there was delay in sending the sample taken by the Drug Inspector on 18.09.2003 till 22.09.2003. It is submitted that the petitioners moved an application before Drug Inspector for re-analysis but the Drug Inspector did not take any action as he had taken a sample of BL-Spargan. The petitioner requested the Drug Inspector to send the sample of GL-Spasgan but he did not take any action. After giving my thoughtful consideration to the matter, it may be noticed that the summoning order was passed on 26.11.2007 (Annexure P3). The petitioners have sought to place reliance on a document dated 4.6.2003 (Annexure P-1). The said document is not liable to be taken into consideration at this stage and it would be more appropriate if the same is gone into and considered by the learned trial Court if it is produced in evidence. It is well-known that in exercise of the inherent jurisdiction of this Court under Section 482 CrPC, the Court is not to embark upon an inquiry and go into the veracity of the evidence and on the basis of the same reach at a conclusion that the offences as alleged are not made out. The document dated 04.06.2003 (Annexure P-1) is not a document that is per se admissible. The same is liable to be gone into if it is produced in defence. The same is not liable to be appreciated and gone into at this stage in exercise of the inherent jurisdiction of this Court under Section 482 Cr.P.C. It may also be noticed that the case involves disputed questions of facts which are not liable to be gone into in exercise of inherent jurisdiction of this Court. The question whether sample of GL-Spasgan or BL- Spargan was taken is purely a disputed question of fact and which is to be considered by the trial Court on the basis of evidence and documents that are produced and on Crl. Misc. No. M- 1611 of 2009 5 the basis of a plea in this regard being raised. The question whether the petitioners asked for analysis of second sample is also to be gone into by the trial Court. On the basis of material on record at this stage, the said question is not liable to be gone into at this stage. The case involves leading of evidence and after it is led, it would more appropriately be considered by the learned trial Court. It may be noticed that the learned counsel for the petitioners during the course of hearing has submitted that the petitioners had not manufactured the drug which is now said to be of sub-standard quality and a wrong sample was sent for analysis. However, there being a possibility of an inadvertent mistake cannot be ruled out as in the complaint (Annexure P-2), it has been mentioned that the product of GL Spasgan tablets was declared as not of standard quality by Government Analyst, Punjab, Chandigarh. Besides, it may be noticed that the primarily allegations are based on letter No.2017-4 Drugs-1- 2006/6987 dated 15.11.2006 from the State Drug Controller, Punjab, Chandigarh. The said letter has not been placed on record. Therefore, in the absence of relevant material even it would be inappropriate to go into the question as to whether the offences as alleged in the complaint (Annexure P2) are made out against the petitioners or not. In the facts and circumstances, it would be appropriate if the contentions as raised in the present petition are raised before the trial Court at the appropriate stage. In view the above, there is no merit in the petition and the same is accordingly dismissed. However, petitioners may take their defence as available to them before the trial Court itself. Besides, nothing stated herein shall be construed as an expression of opinion one way or the other on the merits of the case. (S.S. SARON) JUDGE January 28, 2009 amit/A.Kaundal