Criminal Revision No. 2667 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Revision No. 2667 of 2008 Date of decision: 26.11.2010 Gursewak Dass and others ......Petitioners Versus State of Haryana and another .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.S.Bains, Advocate, for the petitioners. Mr.Satyavir Singh Yadav, DAG, Haryana. **** SABINA, J. The petitioners were convicted for an offence under Sections 27(b)(i), 27(c), 27(d), 27(b) (ii), 28(A) and 22(3) of the Drugs and Cosmetics Act, 1940 (for short the Act) by the Chief Judicial Magistrate, Hisar vide judgment dated 6.6.2006. Vide order dated 8.6.2006, the petitioners were sentenced to undergo rigorous imprisonment as under:- Sr. No. Name of accused U/Section Punishment 1 Gursewak 27(b)(i) 2 years RI and to pay a fine of Rs.5,000/- Criminal Revision No. 2667 of 2008 2 Sr. No. Name of accused U/Section Punishment 27(c) 5 years RI and to pay a fine of Rs.5,000/- 27(d) 1 year RI and to pay a fine of Rs.1,000/- 27(b)(ii) 2 years RI and to pay a fine of Rs.5,000/- 28A 1 year RI and to pay a fine of Rs.1,000/- 22(3) 1 years RI and to pay a fine of Rs.1,000/- 2 Rajesh Sareen 27(b)(i) 2 years RI and to pay a fine of Rs.5,000/- 27(c) 5 years RI and to pay a fine of Rs.5,000/- 27(d) 1 year1 RI and to pay a fine of Rs.1,000/- 27(b)(ii) 2 years RI and to pay a fine of Rs.5,000/- 28A 1 year RI and to pay a fine of Rs.1,000/- 22(3) 1 year RI and to pay a fine of Rs.1,000/- 3 Ashwani Tulli 27(b)(i) 2 years RI and to pay a fine of Rs.5,000/- 27(c) 5 years RI and to pay a fine of Rs.5,000/- 27(d) 1 year RI and to pay a fine of Rs.1,000/- 27(b)(ii) 2 years RI and to pay a fine of Rs.5,000/- 28A 1 year RI and to pay a fine of Rs.1,000/- 22(3) 1 year RI and to pay a fine of Rs.1,000/- All the sentences were ordered to run concurrently. Aggrieved by the same the petitioners preferred appeals, which were dismissed vide judgment dated 27.11.2008 passed by the Criminal Revision No. 2667 of 2008 3 Additional Sessions Judge, Hisar. Hence, the present revision petition. The contents of the complaint (Annexure P-1 ) read as under:- “1. That the complainant is appointed as an Inspector U/s 21 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act) for whole of Haryana State vide Haryana Govt. Gazette notification No. 1/5/82-IHB-III dated 6th January, 1986 and has been posted and working as District Drugs Inspector-I Hisar Since August 12, 1987. 2. That on 28.8.1991, the complainant alongwith Peon Sh. Hari Ram visited the licensed sale premises of firm M/s Sat Kartar Medicos, Patel Nagar, Hisar for routine Inspection. This firm is holding retail sale drugs licence No. 882-B and 888-OB (valid upto 31.12.92) and Sr. Gopal Dass (accused No. 2) is the sale Proprietor of this firm Sh.Raj Kumar (accused No.1) was found present, who disclosed himself to be the Manager and Incharge of the business of the firm M/s Sat Kartar Medicos, Hisar (accused No. 3). The complainant disclosed his identity and purpose of visit to Sh. Raj Kumar. During inspection of the premises of the firm, the complainant found 12 tablets of drug Cetriprim DS (Trimethoprim and sulphamethoxazole Tablets IP) Batch No. P-117 Mfg. Date Dec 90 Exp. Date Nov. 93 Manufactured By M/s Rikar Organics (I) Pvt. Ltd. Criminal Revision No. 2667 of 2008 4 487/61/A Peragarhi, Delhi-41 in blister strip packing (1 X 10 and 1X 2) contained in a printed carton meant for 10 X10 Cetiprim DS Tablets duly stocked and exhibited for sale and distribution purposes alongwith the other trade stocks of drugs. The complainant purchased the entire quantity of this drug for test or analysis purposes. After writing down the details of this drug in the sample of this drug,the complainant divided this quantity of above said drug into four portions of 4 tablets, 4 tablets, 2 tablets and 2 tablets each by cutting blister pack strip of 1 X 10 tablets in three parts.The complaint,then effectively and separately sealed all these four portions, so made, or each of the said drug with his seal bearing seal impression DI GLSs and then suitably signed and marked all these four portion of the sample as Sample No. GLS- 89/91, all in the presence of Sh. Raj Kumar, who was then also asked to put any his seal or any mark on these sealed portions of the sample, who refused to do so and only signed all these four portions of the sample. One portion of the sample was in the original carton pack. A signed and written statement of Sh. Raj Kumar was obtained on sample intimation form No. 17. The complainant offered the sale price of this sampled drug to Sh.Raj Kumar but a credit memo No.552 dated 28.8.91 Criminal Revision No. 2667 of 2008 5 for Rs. 16.80 was issued for the price of this drug by Sh. Raj Kumar. One sealed portion of this sample and a copy of the sample intimation for No. 17 was then handed over to Sh. Raj Kumar on the spot against his acknowledgment of the receipt of the same on form No. 17 itself. The price of this sampled drug was later made to the firm by the office of Civil Surgeon, Hisar. The complaint also filed the inspection form, which was signed by Sh. Raj Kumar (accused No.1) and the complainant. 3. That on dated 28.8.91, the complainant sent one sealed sample portion of this drug sample No. GLS- 89/91 alongwith the memorandum on prescribed form 18 vide No. DI/91/2010 dated 28.8.91 to the Govt. Analyst Haryana, Chandigarh by regd. Post parcel for test or analyst purposes. One copy of the memorandum on form 18, bearing seal impression of the seal of the complainant, with which the sample in question was sealed, was also sent to the Govt. Analyst Haryana, Chandigarh separately by regd. Post. 4. That the complainant, then received the test report No. 5538 dated 20.9.91, in triplicate, on prescribed form No. 13, in respect of drug sample No. GLS-89/91 from the Govt. Analyst Haryana, Chandigarh, as per this report the drug Trimethoprim and Sulphamethoxazole Criminal Revision No. 2667 of 2008 6 Tablets IP (Cetiprim DS Tablets) B.No. P-117 Mfg. By M/s Rikar Organics (I) Pvt. Ltd. 487/61-A, Peeragarhi, Delhi- 41 was not of standard quality, and was misbranded, adultered and spurious within the meaning of Section 16, 17, 17A and 17B respectively of the Act for the reasons mentioned therein the report. 5. That on 25.9.91 the complainant visited the sale premises of M/s Sat Kartar Medicos, Patel Nagar Hisar. The complainant delivered on original copy of the test report No. 5538 dated 20.9.91 of the drug sample No. GLS-89/91 alongwith his officer letter No. DI/91/2265 dated 24.9.91 to Sh. Gopal Dass, Proprietor of this firm. The firm was directed to disclose the name, address and other particulars of that person from when the drug in question have been purchased by them as required U/s 18 A of the Act and was also show cause as to why an section under the Act should not be taken against them for having stocked and sold the drug in question. Sh. Gopal Dass (accused No.2) in its reply dated 25.9.91, to the complainant's letter No. 2265 dated 24.9.91, disclosed or having purchased this drug from M/s Azad Medical Agencies, Jain Gali, Hisar vide their invoice No. 2052 dated 6.6.91. He submitted certified copies of this invoice alongwith his reply. He intimated that all the Criminal Revision No. 2667 of 2008 7 stocks of this drug has been exhausted but could not produce the sales details of this drug when asked by the complainant on the spot. 6. That on 30.9.91, the complainant visited the sale premises of M/s Azad Medical Agencies, Jain Gali, Hissar holding wholesale drugs licence No. 3552-OW/11 and 3253-W/H of form 20B and 21B respectively. Sh.Harvinder Kumar, who disclosed himself as partner- cum-competent person of this firm was found present. The complainant delivered his office letter No. D1/91/2341 dated 25.9.91 alongwith the original test report No. 5538 dated 20.9.91 of the drug sample No. GLS-89/91, a certified copy of invoice No. 2052 dated 6.6.91 and the third sealed sample portion of the drug sample No. GLS-89/91 to Sh. Harvinder Kumar (accused No. 4). In his reply dated 30.9.91 he disclosed of having sold this drug to M/s Sat Kartar Medicos, Hisar vide their invoice No. 2052 dated 6.6.91 issued under his signatures after having purchased from M/s Rikar Organics (I) Pvt. Ltd. 487/61-A, Peeragarhi, Delhi-41 vide their invoice No. R0025 dated 29.4.91. he submitted certified copies of the purchase invoice and sale details of this drug. He stated that they do not have any balance stock of this drug with them. The complainant then Criminal Revision No. 2667 of 2008 8 showed him the fourth-sealed portion of sample No. GLS- 89/91 which was packed portion, that the firm had received this drug in similar packing, from its manufacturer M/s Rikar Organic (I) Pvt. Ltd Delhi and had sold in the same packing to different dealers. He also returned the 3rd sealed sample portion and the original test report to the complainant after putting his signatures on this portion also with the plea that he does not want to challenge a test repot. He informed that they are authorized stockist of this company and goods are received through transport barrier on orders of their medical representatives. Spot memo was also prepared, which was signed by the complainant and Sh. Harvinder Kumar. The complainant along with Sh. A.K. Jindal, Drug Inspector, Delhi Administration, Delhi visited the premises of M/s Rikar Organics (I) Pvt. Ltd. Situated at 487/61A, Peeragarhi, Delhi on dated 7.10.91, for investigations at manufacturer level, The premises was found locked. The owner of the building Sh.Om Parkash intimated in writing that the firm M/sRikar Organics (I) Pvt. Ltd. is closed since last two months and the premises is under their lock. He stated that he does not know the whereabouts of Sh. Sham Sunder Singla or other Criminal Revision No. 2667 of 2008 9 directors of the company & he will intimate them regarding complainant's visit, whenever they visit the premises. The complainant, then on the same day visited the premises of the firm M/s Curemed (India) Pharmaceuticals, 16A, Najafgarh Road, New Delhi along with Sh. A.K. Jindal, Drugs Inspector, Delhi Admn. Delhi, at which the firm M/s Rikar Organics (I) Pvt. Ltd. Delhi was holding loan licence No.1291 and 1292 on form 25A and 23A for manufacturer of drugs in compressed tablets, capsules and liquid orals. Sh. Pardeep Bhargava, Manager M/s Curemed (India) Pharmaceuticals, was found present. The complainant disclosed his identity and purpose of visit to Sh. Pardeep Bhargava, who was then given a copy of the analysis report of drug sample No.GLS-89/91. On being asked, he stated in writing that M/s Rikar Organics (I) Pvt. Ltd. Delhi was holding loan licence No.1291 and 1292 on form 25 A and 28 A respectively valid upto 31.12.90 for manufacture of drug formulations in tablets, capsules and liquid oral forms in their manufacturing unit. These were expired on 31.12.90 and they did not manufacture any drug after December 1990 on their behalf. He further stated of having manufactured a batch of 31250 tablets cetiprim DSB.No. P-117 on behalf of M/s Rikar Organics (I) Pvt. Ltd. Delhi Criminal Revision No. 2667 of 2008 10 bearing mfg. Date as Dec. 90 and Exp. Date as Nov.93, MRP as Rs. 138.60, which was taken up for manufacturing on 28.12.90 and a total of 307x10x10 blister strips packed quantity was transferred to M/s Rikar Organics Delhi on 9.1.91. he enlisted no. of differences on seeing the sample portion (in original carton) of sample No.GLS-89/91 and after comparing it with their control sample maintained and manufactured by their firm. Based on these differences, he remarked that the product whose sealed sample portion was shown to him was not a product manufactured product Cetiprim DS was also submitted by Sh. Pardeep Bhargava. Spot memo was prepared which was signed by the complainant6, and Sh. A.K.Jindal, Drug Inspector Delhi Admn. Delhi. The complainant, on dated 8.10.91, attended the office of the Drugs Control Administration Delhi and received letter No.F(12) (76)/91-CTDS/7191 dated 8.10.91 in contest with their investigations of the said drug product at the manufacturer level. As per this letter, the firm M/s Rikar Organic (I) Pvt. Ltd. Delhi was found closed when Drugs Inspector, Delhi visited on 30.9.91 and investigations at M/s Curemed (I) Pharm. Delhi were conducted by their officials on the same day. Photo copy of the manufacturing and testing records of the subject Criminal Revision No. 2667 of 2008 11 mentioned drug alongwith their reply as submitted by M/s Curemed (I) Pharm. Delhi were also enclosed alongwith the letter. From these records, it is apparent that the firm M/s Rikar Organics (I) Pvt. Ltd. Delhi was holding these loan licences, which were valid upto 31.12.90 and the product Cetiprim-Ds Tablets B.No. P-117 was transferred from M/s Curemed (I) Pharm. Delhi to M/s Rikar Organics Delhi on 9.1.91 i.e. after the expiry of their licences. Some of the manufacturing operations of their licences. Some of the manufacturing operations of this particular batch were also completed in January 1991, while the licences were not in force. Thus the firm M/s Rikar had manufactured this drug product without a valid licence. 8. The complainant vide office letter No.D1/91/2448 dated 14.10.91 issued notice to M/s Rikar Organics (D) Pvt. Ltd. 487/61 A, Peeragarhi, Delhi by regd. Post but the same was received undelivered with remarks “left” on it, from the postal department. After receipt of a copy of declaration form vide letter No.F(12) (76)/91-CTDC/14 dated 1.1.92 from the Drugs Controller Delhi, the complainant sent the same notice to Sh. Sham Sunder Singla, Managing Director M/s Rikar Organics at his residential address by regd. Post (R.No. 4875) but again same was received undelivered when it was sent by Criminal Revision No. 2667 of 2008 12 regd. Post to Sh. Ashwani Tuli, another Director of this firm, at his residential address with comments “left without address”. Then the same notice was sent to Sh. Guresewak Dass another Director of this firm at his residential address (R.No. 514 dated 28.1.92). Receiving no reply from Sh. Gursewak Dass, a reminder vide letter No.D1/92/631 dated 6.3.92 was also sent to Sh. Gursewak Dass by regd. A.D. Post (R.No. 4172 dt. 6.3.92). Acknowledgment card attached with this reminder bearing signatures of Sh. Gursewak Dass was received in the office of complainant on 13.3.92. No reply to this notice was, however, received by the complainant till the filing of this complaint. 9. That the complainant vide his office letter No.D1/92/ 744 dated 13.3.92 sent third sealed sample portion of the drug sample No.GLS-89/91 by regd. Post parcel (R.P. No.2439 dated 14.3.92) to M/s Rikar Organics (I) Pvt. Ltd. 487/61-A, Peeragarh, Delhi which was received undelivered with remarks “Factory Band Hai Anths wapis jaain” from the postal department. The complainant then sent the same third sealed sample portion to Sh. Guresweak Dass, Directorf of the firm M/s Rikar at his residential address by regd. Post parcel (R.P. No.3783 dt. 25.3.92) alongwith letter No.D1/92/860 Criminal Revision No. 2667 of 2008 13 dated 24.3.92 but again it was received back undelivered from the postal department with comment” Parcel lainal sai taalmtol hai” on it. Thus the firm had avoided the receipt of sample portion. 10. That the complainant once again issued letters to all the four directors of this firm M/s Rikar at their residential addresses, all by regd. A. D. is vide letter No.1361, 1365, 1363 and 1367 dated 14.5.92. Except the letter sent to Sh. Rajesh Sareen, Director M/s Rikar, rest all three were received undelivered from postal department with different comments “Patr lianai say inkari hai” (Sh. Gursewak Dass); “ us naam ka admi is makan main nahi rehta” (Sh. Sham Sunder Singla); “C/o walai ne prapt kata pata bataani saiy inkar or notice lenai sai inkaar” (Ashwani Tuli). Thus it is very clear that this firm M/s Rikar Organic (I) Delhi closed its business at its licenced premised, which was left by them after their illegal activity of spurious drugs manufacturing was detected by the complainant. The director of this firm have avoided the receipt of letters/notices/sample portions intentionally, however, Sh.Gursewak Dass and Sh. Rajesh Sareen had received the letters initially but later they also refused to received these. The complaint did not receive the reply to the notice issued to the firm Criminal Revision No. 2667 of 2008 14 which were received by the directors of the firm, till today. 11. That similar prosecution complaint (State vs Harvinder) under Drugs and Cosmetic Act 1940 regarding manufacture & Sale spurious, adulterated, sub standard and misbranded drug namely Chaloramphenicol capusles IP B.No.F 801 Mfd. M/s Medirose Delhi, against accused (including the firm M/s Rikar Organics (I) Pvt. Ltd. Delhi and its four directors) is also under trial in your Hon'ble court, wherein the firm M/s Rikar Organics (I) Pvt. Ltd. Delhi and its four directors have been accused of having manufactured for sale and having sold spurious, adulterated, Sub-standard and misbranded drug Chloramphenicol capsules IP B. No.F 801 Mfd. Medicose. This case, which is now fixed for 3.9.92, was filed on 31.3.92 by the complainant. 12. That as per the test report No.5538 dated 20.9.91, which is admissible in evidence as per sections 25(3) of the Act, a substandard spurious, adulterated and misbranded drug, Trimethoprim and sulphamethozazole tablets IP (Cetiprim DS Ttablets) B.No.F-117 Mfg. By M/s Rikar Organics Delhi, which is a broad spectrum anti microbial drug and is used extensively in the management of many microbial infestations, has entered in the market for use in the ailing human beings and has Criminal Revision No. 2667 of 2008 15 been manufactured, sold and stocked through and by the hands of accused No.(1) to (11). 13. Thus from the submissions made above, it can be very safely concluded that the firm M/s Rikar Organics (I) Pvt. Ltd. 487/61-A, Peeragarhi, Delhi and its directors were indulging in manufacture and sale of substandard, spurious, adulterated and misbranded drugs and have manufactured, sold and stocked the drug in question, which has been widely distributed and was used by the ailing humans. The firm M/s Azad Medical agencies, Hisar and M/s Sat Kartar Medicos, Hisar along with their owners/partners etc. have stocked for sale and have sold this spurious, adulterated, misbranded and substandard drug Cetiprim-DS Tablets B.No. P-117 Mfd. M/s Rikar Organics (I) Pvt. Ltd. 487/61 A, Peeragarhi, Delhi, in huge quantity which has been used by the suffering human being for their various ailments. 14. Under these circumstances, the accused No. (1) to (3) have contravened the following provision made under the Act. A) Section 18 (a) (i) of the Act red with Section 16(1) (a), 17A, 17B and 17 of the Act and is punishable U/s 27 (b) (i), 27(c) and (d) of the Act. Criminal Revision No. 2667 of 2008 16 B) Section 18(a) (vi) of the Act punishable U/s 27(d) of the Act. 15. The accused No.4 to 6 here contravened the following provisions made under the Act. A) Section 18(a) (i) of the Act read with Section 16(i) (a), 17 A, 17 B and 17 of the Act and is punishable U/s 27(b) (i), 27(c) and 27 (d) of the Act. 16. The accused No.7 to 11 have contravened the following provisions made under the Act: A) Section 18(a) (i) of the Act read with section 16 (1) (a), 17 A, 17B and 17 of the Act and rule 96 of the Rules punishable U/s 27(b) (k), 27(c) and 27(d) of the Act. B) Section 18-B of the Act by not furnishing the information to the Inspector, which is Punishable U/s 28A of the Act. C) Section 18 (c) of the Act which is punishable U/s 27(b) (ii) of the Act. D) Section 22(3) of the Act which is punishable U/s 22(3) of the Act. E) Section 18(a) (vi) of the Act punishable U/s 22(3) of the Act. 17. Since the test report No.5538 dated 20.9.91 Criminal Revision No. 2667 of 2008 17 relating to drug Trimethoprim and Sulphamethoxazole Tablets IP (Cetiprim DS Tablets) B. No.P-117 Mfd. M/s Rikar Organics, Delhi has not been challenged, therefore, the facts stated therein are admissible n evidence as per Section 25(3) of the Act. Therefore, it is requested that the prosecution complaint against the accused No.(1) (11) which the complainant is competent to launch in this Hon'ble court by virtue of Section 32 of the Act may kindly be disposed of according to the provisions of the Act. “ Learned counsel for the petitioners has submitted that the Courts below have erred in convicting and sentencing the petitioners under the Act. The Drug Inspector had filed the complaint without obtaining previous sanction from the competent authority and hence, no action could be taken on the basis of the complaint filed by the Drug Inspector. Learned counsel for the petitioners has further submitted that as per the complaint, the samples, which were recovered were in blister strip packing. However, the report of the chemical examiner showed that the samples were in metallic strip. Thus, some other samples had been sent for testing. In support of his arguments, learned counsel has placed reliance on M/s Fizikem Laboratories Pvt, Ltd. and another vs. The Drugs Inspector, Karimnagar and another 2006 Crl.L.J.3090, wherein in para 13, it is Criminal Revision No. 2667 of 2008 18 was held as under:- “In view of the fact that there is an express legal bar for institution of prosecution by the Inspector for the alleged offences, taking cognizance of the offence by the Magistrate suffers from incurable jurisdiction deficiency and continuing the same would result in abuse of process and unnecessary harassment to the petitioners.” Learned counsel has further placed reliance on Dr.Om Prakash Singh and etc. vs. State and another 2003 Crl.L.J.4276, wherein in para Nos. 9 and 10, it is was held as under:- “9. Perusal of the impugned order shows that the learned M.M.did not deal with the contention raised by the counsel for the petitioner but referred to sub section (2) of Section 33-M which provides that no court inferior to that (of a Metropolitan Magistrate or of a Judicial Magistrate of the first class) shall try an offence punishable under this chapter and proceeded on the presumption that this section does not indicate that the sanction is a condition precedent for taking cognizance by court for offence under Chapter IV-A of Drugs and Cosmetics Act, 1940 and fell upon erroneous conclusion that sanction is not a condition Criminal Revision No. 2667 of 2008 19 precedent for taking cognizance by the court. In support of this view, the learned Magistrate placed reliance upon Jas Karan Singh vs. State 1974 Crl.L.J. 728. This judgment dealt with the provisions of Section 32 of the Act, which is part of Chapter IV and held as under:- “Sanction is not a condition precedent for the taking cognizance by court of complaint for offence under the Act. Section 32 does not provide that sanction is condition precedent for taking cognizance of complaint. The word ' instructions' in Rule 51 is not synonymous with 'prior sanction'. It merely provides that the power to institute prosecution shall be exercised subject to instructions of controlling authority. The instructions contemplated by the rule can only be such as supplement the powers. It could not have been intended by rule-making authority that controlling authority could be executive instructions obstruct performance of duties imposed by the rule itself.” Criminal Revision No. 2667 of 2008 20 10. There is a distinction and conspicuous difference in the language of