Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. MMO No.35 of 2003. Judgemnt reserved on: July 4th,2008. Dated of Decision: July 16th,2008. --------------------------------------------------------------------------------------------------- M.D. M/s Cadila Pharmaceuitcal Ltd. …… Petitioner. Versus State of H.P. and others. ……. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Petitioner : Mr. Sanjeev Kuthiala, Advocate. For the Respondents : Mr. J.S. Guleria, Law Officer, for respondent No.1. Mr. Vikas Rathore, Advocate, for respondents No.2 to 4. Surinder Singh,J : The Managing Director (M.D.) of M/s Cadila Pharmaceutical Limited is one of the accused in Complaint No.565/1/99(98), instituted on 16-7-1998 (17-8-1999), pending in the court of Judicial Magistrate Ist Class, Mandi wherein an application was moved on behalf of the Managing Director Indravadan Ambalal Modi, for his exemption from personal appearance through counsel, which was dismissed by the learned trial court, vide order dated 5.2.2003, which inter-alia has been challenged in this revision petition. I have heard the learned counsel for the parties and carefully gone through the record. - 2 - The sole point urged by the learned counsel for the petitioner is that the learned trial court has committed an error, by rejecting the prayer made on behalf of the Managing Director, by not exempting his personal appearance and allowing him to appear through his lawyer. The brief facts are that on 22.4.1995, the Drug Inspector had picked up the sample of ‘Mycobutol-800’ bearing No.5007 manufactured by M/s Cadila Laboratories Ltd., from the shop of Shri Dina Nath, accused, Partner of M/s Ajay Medical Agencies, Chauntra, Joginder Nagar, Mandi. The sample was found to be sub- standard on its analysis. The prosecution was launched in the court under Section 34 (i) and 18(1)(i) of the Drugs and Cosmetics Act, 1940. An application was also moved on 7.9.1998 to implead the suppliers of the said drug, Srv. Shri Khem Raj Gupta and Anup Kumar Gupta, Partners of ‘M/s Allidac Distributors’. The record does not reveal whether the said application was allowed, though they put in appearance and furnished their bail bonds. The original accused in the complaint were Managing Director, M/s Cadila Laboratories, the manufacturers of the drugs and Shri Dina Nath from whom the sample was taken. The trial Court record reflects that despite repeated requests, the Managing Director of the Accused No.1 M/s Cadila Laboratories did not put in appearance. The Drug Inspector, later supplied the correct particulars, that it was the Managing Director of M/s Cadila Pharmaceutical who was, the relevant person to be summoned. Again the summons were issued but it seized to yield any result, at last N.B.Ws were issued. - 3 - On 5.2.2003, an application seeking the exemption of the Managing Director of M/s Cadila Pharmaceuticals Limited was moved before the learned trial court, through an Advocate, which was dismissed, on the ground that the said accused was avoiding service for the last 5 years and no leniency can be shown to him, hence the trial court issued NBWs, compelling his presence. In the case in hand, the summons procedure applies for trial to the offence alleged, therefore, Chapter XX of the Code of Criminal Procedure would be attracted. Though there is no express bar permitting the accused to appear through his pleader but where the accused has been exempted under Section 205 of the Code of Criminal Procedure and allowed to be represented by a lawyer, he can represent the accused subsequently even as regards the plea to the substance of accusation under section 251 of the Code of Criminal Procedure. Thus, form No.1 in second schedule of the Code has been drafted, in tune with Section 251 supra. To take this view, I am supported by S. Nihal Singh and others v. Arjun Dass [Cr.L.J. 1985 467] and S.R. Jhunjunwala v. B.N. Podar 1988 Cr.L.J. 51. Therefore, in the circumstances, I see no compelling reasons for the learned trial court to refuse the Managing Director Indervadan Ambalal Modi to be represented through his counsel, but however that counsel would require a `special Vakalat’ at the time of his examination under Section 251 Cr.P.C. with an undertaking that he shall have no objection in case the evidence is recorded in his absence and also at the time of recording the statement of the accused under Section 313 Cr.P.C., more particularly, when Section 313(1) Cr.P.C. provides for it. Accordingly, the impugned order - 4 - dated 5.3.2003 to the extent concerning the petitioner rejecting his request for exemption is set-aside and the accused Shri Indervadan Ambalal Modi, Managing Director of M/s Cadila Pharmaceutical Limited shall now move a fresh application through his counsel before the learned trial court for seeking exemption as per the provisions of Section 205 Cr.P.C. in the aforesaid terms. After having done so, the learned trial court shall dispense with his appearance and allow him to appear through the counsel so authorized and proceed with the case in accordance with law. It is further directed that the trial Court shall also make every endeavour to decide the application moved by the Drug Inspector to implead M/s Khem Raj Gupta and Anup Kumar Gupta, Partners of M/s Allidac Distributors, moved on 7.9.1998, on priority if not already done so. Keeping in view the age of pendency of the complaint, it is expected from the court to decide the same on or before 31st July, 2009. In view of the above directions, the petition is accordingly disposed of. The parties are directed to appear before the trial court on 26.8.2008. Send down the records forthwith. July 16th, 2008. (Surinder Singh) (Pds) Judge.