IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 Crl.MC.No. 4496 of 2010(F) ------------------------------------- [C.C. NO.302/06 OF THE J.F.M.C KATTAKADA] ......... PETITIONER/ACCUSED 1 TO 6: --------------------------------------------- 1. MAIDEN PHARMACEUTICALS LTD., 81, HSIDC, INDISTRIAL AREA, KUNDLI 131 028 HARYANA. 2. NARESH KUMAR GEOL, DIRECTOR, MAIDEN PHARMACEUTICALS, 81, H.S.I. D.C. INDUSTRIAL AREA, KUNDLI 131 028, HARYANA, RESIDING AT BJ-3, WEST SHALIMAR BAGH, DELHI-52. 3. BALRAJ KUMAR GOEL, DIRECTOR, MAIDEN PHARMACEUTICALS LTD. OF DO. 4. ROSHAN LAL GOEL, DIRECTOR, MAIDEN PHARMACEATICALS LTD. OF DO- 5. VINOD KUMAR GOEL, DIRECTOR, MAIDEN PHARAMACEUTICALS LTD., OF DO- 6. MINAY KUMAR GOEL, DIRECTOR, MAIDEN PHARAMACEUTICALS LTD. OF DO- BY ADVS. SRI.R.T.PRADEEP, SRI. V. VIJULAL. RESPONDENTS/COMPLAINANT & 7TH ACCUSED: ----------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE DRUGS INSPECTOR, OFFICE OF THE DRUGS CONTROLLER, THIRUVANANTHAPURAM. CRL.M.C. NO.4496/2010-F: 3. B.L. TIKOO, S/O. M.L.TIKOO, PRODUCTION MANAGER MAIDEN PHARMACEUTICALS LTD. 81, HSIDC.INDUSTRIAL AREA, KUNDLI 131 028, HARYANA, RESIDING AT 185/186, FLAT NO.4 GALI NO.3 PANDAV NAGAR, PATPAR GANJ, DELHI – 110 001. R1 & R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4496 of 2010 --------------------------------------- Dated this 28th day of January, 2011 ORDER This petition is filed by the accused in C.C.No.302 of 2006 of the court of learned Judicial First Class Magistrate, Kattakada for offence punishable under Sec.27(d) of the Drugs and Cosmetics Act, 1940 (for short, "the Act”). Case is instituted on a complaint preferred by respondent No.2. First petitioner is a private limited company of which petitioner Nos.2 to 6 are the Directors. Case is that drugs manufactured by the first petitioner was sold to the Government and its sample was found to be not conforming to the prescribed standard. According to the petitioners their right under Sec.25(4) of the Act has been taken away, there is no material to hold that drugs kept by the company complying with the label specification, the Government Analyst analysed the drug without obtaining protocol of the subject drug from the Haryana Drugs Control Authority and learned Judicial First Class Magistrate, Kattakada lacked territorial jurisdiction to entertain the complaint and take cognizance of the said offences. Learned counsel has pointed out that in a similar case (S.T.No.2192 of 2005 of the court of learned Judicial First Class Crl.M.C.No.4496 of 2010 -: 2 :- Magistrate, Neyyatinkara) accused No.2 to 4 were discharged accepting their plea under Sec.34 of the Act as raised in the present proceeding. Learned counsel in the circumstances request this court to quash proceedings against petitioners. Learned Public Prosecutor submitted that even in S.T.No.2192 of 2005 relied on by learned counsel prosecution against accused Nos.1 and 5 has been sustained. 2. Now the question is whether at this stage this court is required to interfere under Sec.482 of the Code of Criminal Procedure (for short, "the Code). The Full Bench of this court in Moosa v. Sub Inspector of Police (2006(1) KLT 552) stated the guidelines for invoking the power under Sec.482 of the Code and held that the fact that accused can seek discharge under the relevant portions of the Code in the normal course, in the absence of compelling reasons is a valid reason for the High Court not to invoke its extraordinary power under Sec.482 of the Code. Having heard learned counsel for petitioner and the learned Public Prosecutor I do not find any compelling reason why petitioners should not take recourse to the remedy, if any available before the learned Magistrate. There is also no reason why this court should interfere under Sec.482 of the Code. Hence the request cannot there be allowed. Petitioners can seek Crl.M.C.No.4496 of 2010 -: 3 :- appropriate relief in the trial court as provided under law. Learned counsel made a request that petitioners may be exempted from appearance in the court below while pleading for discharge. The Supreme Court has held in Manoj Narain Agrawal Vs. Shashi Agrawal & Ors. (2009(4) Supreme 85) that the High Court is not justified in granting exemption under Sec.482 of the Code. Hence that request cannot be allowed in this proceeding. Petitioners have to make appropriate application before the learned Magistrate for exemption under Sec.205 of the Code. If any such request is made learned Magistrate has to consider that application having regard to the facts and circumstances of the case and pass appropriate orders. I make it clear that I have not made any observation regarding merit of the contentions raised by petitioners, either way. Resultantly with the above observation this application is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-