IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 7 of 2008 Reserved on: 10.3.2008 Date of decision: 17.3.2008 Jayeshkumar & Ors. ... Petitioners Versus The State of H.P. & Anr. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioners: Mr. Rashmin Jani and Mr. C.N. Singh, Advocates. For the respondents: Mr. J.S. Guleria, Law Officer, for respondent No. 1. V.K. Ahuja, J.: This is a petition filed by the petitioners under Article 227 of the Constitution of India and under Section 482 Cr.P.C., for quashing and setting aside the complaint pending before the Additional Chief Judicial Magistrate, Hamirpur, for offences under Sections 18(a)(i) and 17-A of the Drugs and Cosmetics Act, 1940, punishable under Section 27(d) and 27(b)(i) of the said Act. A notice of the petition was issued to the State of H.P. who filed reply. Supplementary affidavit was also filed by the petitioners. Heard. The submissions made by the learned counsel for the petitioners firstly were that the complainant had not complied with the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 mandatory provisions of Section 25, sub clauses (3) and (4) by supplying the copy of the report of the Government analyst. Secondly, that there was non-compliance of the provisions of Section 34 of the Act since in case of offence by companies the person who could be sued by the Drug Inspector was the person responsible to the company for the conduct of the business of the company and who was Incharge for the conduct of the business of the company. It was submitted that the petitioners are not the persons who were Incharge of the company but they are Directors of the company and the Drug Inspector only sought information about the names of the Directors of the company which was supplied to him and he impleaded the petitioners as accused and, therefore, the order summoning the petitioners is bad in the eyes of law. It was also submitted that there are no allegations in the complaint as who was Incharge of the affairs of the company and in the absence of these allegations, no cognizance could be taken as against the petitioners and, therefore, the proceedings pending before the learned trial Court are liable to be quashed. On the other hand, the submissions made by the learned Law Officer for the State were that these points are to be considered by the learned trial Court once the petitioners put up appearance before the trial Court and they had not so far put up appearance and are avoiding service. It was also submitted that it is for the trial Court to see as to whether the report of public analyst was supplied or not as well the names of Incharge when this plea is raised before it and, therefore, no case is made out for quashing of the orders by exercise of extra ordinary jurisdiction by this Court or under inherent jurisdiction by this Court. I have gone through the present petition filed by the petitioners for invoking the powers of the Court under Article 227 of the 3 Constitution of India and under Section 482 Cr.P.C.. I have gone through the petition in detail and there are no specific allegations made in the petition that copy of the report of the public analyst was not supplied or the provisions of Section 25 sub clauses (3) and (4) of the Drugs and Cosmetics Act, 1940 were not complied with before filing the complaint. There is nothing in the petition also that there was non-compliance of the provisions of Section 34 of the Act or that the petitioners were not the Incharge of the business. In view of the fact that these points were not specifically pleaded in the petition, these cannot be looked into by this Court and as such, the relief prayed for in favour of the petitioners cannot be granted. Apart from the above, there is another reason to hold that the petitioners are not entitled to the relief claimed by them that the proceedings be quashed pending before the learned trial Court since according to law the petitioners have a right to raise all these points before the learned trial Court during the course of the trial of the case or at the stage when notice of accusation under Section 251 Cr.P.C. is put up to the petitioners. The question raised by the petitioners in regard to non-compliance of the report of the public analyst or non-compliance of the provisions of Section 34 of the Act in regard to the fact as who was Incharge of the business of the company are questions of fact which are firstly to be considered and decided by the trial Court if and when raised before it at either of the two stages mentioned above i.e. during trial or at the stage of putting of notice of accusation under Section 251 Cr.P.C. In coming to this conclusion I place reliance upon the decision of the Apex Court in Smt. Maneka Gandhi Vs. Union of India and another, AIR 1978 Supreme Court 597, wherein a constitution Bench of the Apex Court had considered the question of personal liberty. This decision and 4 other decisions were considered by Delhi High Court in S.C. Rastogi Vs. Smt. Renu Kalra, 2002 CRI. L.J. 2269, and reliance was also placed upon the decision of Hon’ble Apex Court in K.M. Mathew Vs. State of Kerala, 1992 Cri. LJ 3779, in which it was held that the power to drop the proceedings against the accused is vested in the Court, even after he is summoned. It was further observed in Para-6 that it therefore follows that the accused would be entitled to hearing at the notice stage even in a summons trial case. The accused cannot be forced to go through the mill of trial if he demonstrates on the basis of admitted facts that no case against him is made out. In such a situation the Court would be well within its jurisdiction to revoke the cognizance. It follows from above discussion that the points raised by the petitioners can be considered by the trial Court during trial or at the notice stage and as such, there is no occasion for this Court to exercise the extra ordinary jurisdiction vested in it since the facts are yet to be proved and the petitioners can invoke their right to challenge the order before the learned trial Court during the stage of accusations being put to them. The petitioners have not even put up appearance before the Court, though bailable warrants have been issued for petitioners No.1, 2 and 3 by the Court below. In view of the above discussion, I accordingly hold that there is no merit in the petition filed by the petitioners and the petition is liable to be dismissed and is dismissed accordingly. However, the parties through their counsel are directed to put up appearance before the learned trial Court on 5th May, 2008, the date fixed in the case, failing which, the trial Court shall be entitled to issue non-bailable warrants for their arrest or such coercive method as it deems fit and proper in view of the facts of the case. 5 Cr.M.P. No. 39 of 2008: In view of the dismissal of the main petition, this application has become infructuous. ( V.K. Ahuja ), March 17, 2008 Judge (BSS)