IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50935 of 2006 THE DIRECTOR,LUPIN LABORATORIES LTD. & ANR Versus STATE OF BIHAR ----------- 5 13/8/2008 Heard the parties. In this application two petitioners, namely, the Director, Lupin Laboratories and Lupin Laboratories Ltd had made a prayer for quashing the order dated 21.7.2004 passed by the Chief Judicial Magistrate, Sitamarhi in Complaint Case No. C II/02/04 taking cognizance of the offence under section 27 of the Drugs and Cosmetics Act, 1940 ( hereinafter referred to as the Act ). Counsel for the petitioners with reference to the impugned order has submitted that even if the entire allegation as made in the complaint petition are taken to be true, they do not constitute any prima-facie offence or make out a case against the petitioner. In this context it has been submitted that the ingredients of the offence under section 18 (a) (i) of the Act which is punishable under section 27 A of the Act is not made out and as such continuance of the prosecution against them would amount to an abuse of the process of the court. Counsel for the petitioner in this context has relied on the judgment of the Apex Court in the case of State of Haryana Vs. Brij Lal Mittal reported in 1998 (III) JT. page 584 = 1998 Cr.L.J. 3287 and the judgment of the Bombay High Court in the case of Umesh Sharma and another Vs. S.G. Bhakta and others reported in 2002 Cr.L.J.page 4843. Counsel for the State, on the other hand, 2 has submitted that at the stage of cognizance the Magistrate was not required to look anything beyond the prosecution report and if in the opinion of the State Controller of Medicines such offence was committed and it was backed by the report of the Government analyst of Bihar Drugs Control Laboratory, Patna, that by itself was sufficient for at least taking of cognizance against the petitioner. This Court, on perusal of the prosecution report submitted by the State Controller of Medicines dated 29.2.2003 and its enclosures being certificate of test or analysis by the Government analyst under section 25 (1) of the Act, is satisfied that the prosecution against the petitioners cannot proceed, in as much as, it is clear from the same that the mandatory provisions as laid down in section 23(i)(iii)(iv) of the Act were not observed which requires that the Drugs Inspector while taking sample of the drug in question has to intimate such purpose in writing in the prescribed form to the proprietor of the medicine centre from where such samples were taken. It is to be also observed that despite requirement of statute of collecting four samples, the said Drugs Inspector had collected two portions of the samples and as such there was a clear violation of mandatory provisions. It has also been stated in paragraph no.11 of this quashing application that the Drugs Inspector while taking the sample did not supply a portion of the same to the medicine centre from where such sample was collected and as such 3 requirement of statutes of section 23(iv) of the Act was also not complied. This part of the statement of the petitioners in paragraph-11 has not been controverted by the Informant, Drugs Inspector which has been conveniently replied in paragraph-11 of his counter affidavit by stating that the same is not concerned to the petitioners and the same is actually concerned to the shopkeeper. This Court fails to understand such explanation because the shopkeeper is not being proceeded and in fact it is the petitioners, manufacturer and supplier of the drugs who are being prosecuted and therefore they have every right to question launching of the prosecution including mandatory violation of the statutes. As a matter of fact, what would really go to the root of the matter is the report of the Government analyst, in as much as, the Government analyst was sent such sample after a period of four months from the date of its collection by the Drugs Inspector as is apparent from the report of the Government analyst which clearly goes to show that though sample was collected on 20.4.2002 from the M/S Hanuman Medicine Centre but the said sample was received by the Government analyst on 19.8.2002, and the Government analyst having made such scientific analysis has submitted a report on 27.3.2003, i.e, after almost one year. This Court also finds from the report of the Government analyst that the samples which were seized and sent for chemical analysis by the Government analyst being tablets of Ethambutol Hydrochloride 4 Isoniazid and capsuls of Rifampicin were sent in damaged condition and in fact were already moisturized and also broken. In such a situation when the samples were not preserved and sent in a safe manner so as to elicit the correct chemical analysis report the very basis of the prosecution gets shaken and ultimately when it is found that such report of the chemical analyst dated 27.3.2003 was sent to the office of petitioner no.2 on 18.7.2003 which was received only on 13.8.2003 and were replied immediately by taking specific objection that they were sent after expiry date of the medicine which has been clearly indicated in the report of the Government analyst sent in the month of May, 2003, is itself sufficient to hold that the requirement of law under section 25 (3) of the Act was not followed. It may be noted that in section 25(3) a safeguard has been given to the manufacturer of the medicine or any other person who is sought to be prosecuted under the Act to get the samples and the report of the Government analyst cross checked and verified, but here the report itself was sent after expiry date of the medicine. This Court is therefore satisfied that the mandatory requirement of law of section 25(3) of the Act was not followed and consequently, the ratio laid down by the Apex Court in the case of Brij Lal Mittal (supra) to the effect that that the prosecution launched after expiry of life of the medicine was fit to be quashed, is fully applicable in facts of this case. There is yet another aspect of the matter 5 which goes to the root of the prosecution case, in as much as, when the petitioner’s company on receipt of the letter of the Drugs Inspector had sent reply on 24.8.2003 questioning correctness of the report of the Government analyst and informed the Drugs Inspector that the company had intended to adduce evidence for controverting the report of the Government analyst, the Drugs Inspector did not submit the sample before the court of Judicial Magistrate for its being sent to the Central Laboratory for analysis and as such allegation of the Drugs Inspector remained one sided version and definitely lacked credibility. In any event, the prosecution launched against the petitioners by a prosecution report dated 15.12.2003 as with regard to drugs in question being tablets and capsules whose life had already expired in the month of May, 2003 would itself vitiate the entire prosecution case including order taking cognizance. There is also sufficient force in the second submission of counsel for the petitioner that in the entire complaint petition not a word has been said against petitioner no.1 nor even it is suggested that petitioner no.1 was day to day incharge or responsible for conduct of business of the company. The liability of the Director of a company in respect to criminal offence can only be fastened on him if there is specific allegation of his playing any defined role. In absence of such allegation against petitioner no.1, this Court will have no difficulty in holding that the judgment of Apex Court in Brij Lal Mittal (supra) 6 and followed by Bombay High Court in the case of Umesh Sharma (Supra) where it has been laid down as proposition of law that if no specific allegation was to be found in terms of Section 34 of the Act in the prosecution report against the Director of a company sought to be prosecuted for violation of panel provisions of the Act, such prosecution was fit to be quashed. It has to be noted that in the quashing application in paragraph 22 a specific statement has been given with regard to petitioner no.1 which reads as follows:- “That, as regards the liability of the Director of the petitioner company it is necessary to mention here that there is not even an averment in the complaint that at the time of the alleged occurrence act the Director was responsible and in-charge of the business and in any manner the Director was responsible for any of the alleged acts. And in that view of the matter prosecution of the Director is liable to be quashed. “ In the counter affidavit which has been filed by the opposite party no.2, the complainant launching prosecution, has been answered in paragraph-22 of the counter affidavit which read as follows:- “ That in reply to paragraph No. 22 of the quashing application, it is submitted that it is upto the petitioner to fix the responsibility and bring the culprit to the book. “ 7 It thus appears to this Court that basics of the criminal prosecution under the provisions of the Act is not known to the complainant Drugs Inspector, in as much as, an individual liability of criminal prosecution can be fixed only when there is specific allegation against a particular person. There being no denial to this fact either in the counter affidavit or there being no averment at all with regard to any specific overtact committed by petitioner no.1 in the petition of complaint, this Court has to hold that the criminal prosecution of even petitioner no.1 was not permissible. On the basis of what has been discussed above, this Court has no hesitation in quashing the criminal prosecution including the impugned order taking cognizance and accordingly, this application is allowed in the aforementioned terms. ( Mihir Kumar Jha, J. ) Abhay Kumar