*The Hon’ble Sri Justice V.V.S.RAO +Writ Petition No.3144 of 2005 % 19.12.2008 £ Reckitt and Benckiser (India) Ltd and another …Petitioners Vs. $ The State of Andhra Pradesh, rep.by Drugs Inspector, Hyderabad … Respondent !For the petitioners …Mr.C.R.Sridharan ^For the Respondent No.1 … GP FOR MEDICAL HEALTH & FAMILY WELFARE <Gist: >Head Notes: 1. AIR 1945 PC 18 2. AIR 1960 SC 866 3. AIR 1982 SC 604 4. AIR 1982 SC 949 5. (1995) 2 SCC 449 6. (1996) 2 SCC 37 = 1996 SCC (Crl.) 210 7. (2000) 8 SCC 115 8. 2004 AIR SCW 6185 = (2005) 1 SCC 122 9. (1998) 5 SCC 749 10. AIR 1954 SC 215 11. AIR 1958 SC 398 12. (2008) 3 SCC 542 13. (2008) 2 SCC 492 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 3144 of 2005 Between: Reckitt and Benckiser (India) Ltd., 227, Okhla Industrial Area, Phase III, New Delhi 110 020, having its Corporate ofice at Enkay Cente IInd Floor, Vanijya Nikunj, Udyog Vihar Phase V, Gurgaon - 122 106, rep. by its Head of Legal Mrs.Payal Chawla Singh. ..... PETITIONER AND The State of Andhra Pradesh, rep by Drugs Inspector Hyd., o/o. The Inspector General Drugs and Copy rights Drugs Control Administration Vengalraonagar, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ, more particular in the nature of a writ of Mandamus or any other appropriate writ, order or direction as this Hon'ble Court may deem fit and proper, declarig the impugned proceedings initiated and/or continuation of prosecution by the respondent against the petitioner in C.C.No.449 of 2004 on the file of the Hon'ble XI Metropolitan Magistrate, City Criminal Courts, Secunderabad as illegal, unwarranted, unjustified and without jurisdiction; and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice including grant of costs of these proceedings. Counsel for the Petitioner: MR.C.R.SRIDHARAN Counsel for the Respondent: GP FOR MEDICAL HEALTH & FAMILY WELFARE The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.3144 of 2005 ORDER: Reckitt and Benckiser (India) Limited, manufacturer among others of disinfectant “Lizol” (Pineol Shakti Disinfectant) Phenolic type cleaner, is before this Court for a writ of Mandamus declaring the proceedings in calendar case No.449 of 2004 on the file of Court of the XI Metropolitan Magistrate, City Civil Courts, Hyderabad, as illegal, unwarranted and unjustified. In effect, the writ petition is for quashing criminal complaint in exercise of this Court’s power under Article 226 of Constitution of India. The following is the admitted factual background. Petitioner, an incorporated company, has its registered office at Okhla Industrial Area, Phase-III, New Delhi. Its business is to manufacture and sale of pharmaceutical and other products including disinfectant cleaner ‘lizol’. Petitioner obtained licence under Drugs and Cosmetics Act, 1940 (the Act, for brevity) and its operations are regulated inter alia by provisions of the Act as well as Drugs and Cosmetics Rules, 1945 (the Rules, for brevity). On 02.12.1999, Drug Inspector, Hyderabad, appointed under Section 21 of the Act inspected petitioner’s premises at Secunderabad and collected five samples of ‘lizol’ bottles of 500 ml each with distinct batch number and other details, for the purpose of test analysis. He sealed the bottles of ‘lizol’ and sent one such sample to Government Analyst, Drug Control Administration, Hyderabad. After receiving certificate of test/analysis in Form-13 on 04.05.2000 from the Government Analyst to the effect that the sampled drug is not of standard quality for the reason that the same does not conform the assay for R.W.C. as the label claim. A letter, dated 05.05.2000 was addressed to petitioner. In response thereto, the Regional Manager of petitioner, by letter, dated 13.06.2000 contested the report of Government Analyst. On 16.08.2000, Drug Inspector deposited one sealed sampled portion of the drug in the Court of XI Metropolitan Magistrate for causing analysis at Central Drugs Laboratory (CDL), Kolkata. The same was sent by the Court to CDL on 26.08.2000. While awaiting analytical report from the CDL, the complainant addressed a letter on 31.05.2001 to petitioner with the analytical report and a sealed sample portion of the drug requesting to furnish information and attested documents under Section 18B of the Act. The documents were allegedly not furnished to the complainant and therefore, a complaint was filed in the criminal Court on 05.05.2002. According to petitioner, criminal Court took allegedly cognizance of the offence on 23.08.2004 under Section 18(a)(i) read with Section 27(d) of the Act and issued process to petitioner. Learned counsel for petitioner raised two contentions. ‘Lizol’ disinfectant is a drug, which falls under Schedule ‘K’ of the Rules and therefore under Rule 123 of the Rules, ‘lizol’ is exempted from the provisions of Chapter IV of the Act and the Rules. Secondly, in view of Section 27(d) of the Act read with Section 468 of Code of Criminal Procedure, 1973 (Cr.P.C), the criminal case is barred by limitation. Per contra, learned Assistant Government Pleader submits that the exemption under Rule 123 read with Schedule ‘K’ of the Rules is only for the sale of drug ‘lizol’ and not for the manufacturing and therefore, Section 27(d) of the Act is attracted. Nextly, he contends that as punishment under Section 27(d) of the Act is two years, the period of limitation under Section 468(2)(c) of Cr.P.C. would be three years and hence, complaint was filed within time and cognizance was also taken within time. The first question that arises for consideration is whether ‘lizol’ (phenolic type disinfectant) is an exempted drug under Rule 123 read with relevant entry in Schedule K to the Rules. Second question is whether filing of complaint/taking up cognizance by criminal Court is barred by limitation? These two questions must be considered – in usual course; by criminal Court which took cognizance of the case. These two questions are very relevant in any criminal trial with such background as summed up supra. The writ petition is one for quashing the calendar case pending before learned XI Metropolitan Magistrate. Therefore, it necessarily throws up question regarding the scope of writ petition to quash an FIR or a criminal case pending trial. The principles in this area are well settled, but a reiteration of extent of judicial review and power to quash an FIR/criminal case is necessary with emphasis on quashing of an pre-trial criminal case. It is the duty of the executive to investigate a crime through police to bring the offenders to book. It is a sovereign power. The Court ordinarily cannot interdict with such power nor approach the case with inquisitorial or investigative attitude. Nonetheless, in exercise of powers under Section 482 of Cr.P.C., High Court can quash an FIR only when the police investigation of a cognizable offence amounts to abuse of process of law or it leads to miscarriage of justice. In this area, the principles are well settled and tests have been laid down by apex Court and other Courts. If a look at the allegations in the FIR prima facie points to commission of an offence, the matter should await criminal trial. The Court cannot shift material or appreciate evidence at the stage of investigation while exercising powers under Section 482 of Cr.P.C. That substantive and procedural criminal law provides safeguards against arbitrary arrest, searches, seizure and criminal trials must guide the Court while enquiring a quash petition. Lastly, ordinarily having regard to the effective remedy under Section 482 of Cr.P.C., the extra remedy under Article 226 of Constitution of India cannot be resorted to quash an FIR or a criminal trial. The binding precedents in Emperor v Khwaja Nazir Ahmed, R.P. Kapoor v State of Punjab, State of Haryana v Bhajan Lal and State of West Bengal v Swapan Kumar Guha contain the law. When can criminal proceedings be quashed? Principles which are applicable to FIR quash cases are equally applicable to cases of quash of criminal proceedings under Section 482 of Cr.P.C. That power under Article 226 of Constitution of India ordinarily cannot be exercised to quash criminal proceedings is well settled. In State of Tamil Nadu v Thirukkural Perumal, Supreme Court held that though the High Court has extraordinary or inherent power to reach out injustice, power of quashing FIR and criminal proceedings should be exercised sparingly by the Court. It is apt to quote the following. ………..…The power of quashing an FIR and criminal proceeding should be exercised sparingly by the courts. Indeed, the High court has the extraordinary or inherent power to reach out injustice and quash the first information report and criminal proceedings, keeping in view the guidelines laid down by this court in various judgments (reference in this connection may be made with advantage to State of Haryana v Bhajan Lal (supra) but the same has to be done with circumspection. The normal process of the criminal trial cannot be cut short in a rather casual manner. The court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under Section 482 Criminal Procedure Code seeking the quashing of the FIR and the criminal proceedings. The learned Single Judge apparently fell into an error in evaluating the genuineness and reliability of the allegations made in the FIR on the basis of the evidence collected during the investigation. The order of the learned Single Judge cannot, therefore, be sustained. This appeal succeeds and is allowed. The impugned order of the High court is hereby set aside. I n State of Himachal Pradesh v Pirthi Chand, the Supreme Court considered the extent and scope of power of High Court under Article 226 of the Constitution as well as Section 482 Cr.P.C. to quash the FIR/charge sheet/complaint. While holding that at the stage of investigation it is not the function of the Court to weigh the merits of the prosecution case and that if the record prima facie supports the commission of an offence, the power to quash FIR cannot be exercised. It was observed: It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR / charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation move to the machinery and to investigate into cognizable offence. After the Investigation is conducted and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence- the Court may embark upon the consideration there of and exercise the power. (emphasis supplied) Yet again, in paragraph 13, it was laid down as under. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482, the prima facie consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court. When investigating officer spends considerable time to collect the evidence and places the charge-sheet before the court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power……….. (emphasis supplied) In Mahavir Prashad Gupta v State of National Capital Territory of Delhi, the Supreme Court held that when there are sufficient provisions in Cr.P.C., there is no necessity to invoke jurisdiction under Article 226 of the Constitution. The relevant observations are as under. To be remembered that in the Criminal Procedure Code there are sufficient provisions which enable a party to move the High Court if there is abuse of the process of law. The Petitioners could have utilised those provisions. Also anticipatory bail had been refused to the Petitioners. The Order refusing grant of anticipatory bail was accepted by the Petitioners as they filed no Appeal or Revision. There was thus no justification for invoking Article 226 of the Constitution of India……………… The law on the subject is very clear. In the case of State of Bihar v. Murad Ali Khan {(1988) 4 SCC 655 : 1989 SCC (Cri) 27} it has been held that jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised sparingly and with circumspection. It has been held that at an initial stage a court should not embark upon an inquiry as to whether the allegations in the complaint are likely to be established by evidence or not. Again in the case of State of Haryana v. Bhajan Lal {(1992) Supp (1) SCC 335 : 1992 SCC (Cri) 426} this Court has held that the power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that the court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. (emphasis supplied) In Zandu Pharmaceutical Works Ltd., v Mohd.Sharaful Haque, on which reliance is placed by petitioner, the case arose out of proceedings instituted by the appellant therein under Section 482 of Cr.P.C. Patna High Court rejected quash proceedings. Allowing the appeal, Supreme Court observed thus: All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action, which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. In Pepsi Foods Limited v Special Judicial Magistrate, which is also relied on in support of the petitioner, the accused instituted a writ petition under Articles 226 and 227 of Constitution of India to quash a complaint under Section 7 read with Section 16 of Prevention of Food Adulteration Act, 1954 (PFA Act, for brevity), a writ of Prohibition to prevent Special Judicial Magistrate to proceed with the case and a writ of Certiorari to quash criminal case and a writ of Mandamus to the Presiding Officer not to proceed with the case and other reliefs were sought. The writ petition was dismissed by High Court. A plea was raised before apex Court as to whether the High Court would be justified in refusing to grant relief to the accused in the facts and circumstances of the case under Articles 226 and 227 of Constitution of India. After making a reference to decisions in Waryam Singh v Amarnath and Nagendra Nath Bora v Commissioner of Hills Division, Supreme Court laid down as under. In State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335, this Court examined the extraordinary power under Art. 226 of the Constitution and also the inherent powers under S. 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Art. 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Arts. 226 and 227 of the Constitution and under S. 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Art. 227 or S. 482 of the Code it may not always be necessary to invoke the provisions of Art. 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Arts. 226 and 227 may be referred to. In Pepsi Foods Limited (supra), Supreme Court also observed that, “nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case … Court finds that the appellants could not invoke jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227 or Section 482 of Code”. Therefore, this decision is not an authority for proposition that writ petition would lie for quashing a criminal case which is pending trial. It is a case where a complaint was sought to be quashed and in facts and circumstances of said case, Supreme Court made the observations as extracted hereinabove. In view of the case law as above, it may be taken as well settled that having regard to the safeguards provided in Cr.P.C. including the power vested in the High Court to quash an FIR or criminal proceedings, ordinarily a writ petition under Article 226 of Constitution of India would not lie. In appropriate cases, however, there cannot be sustainable objection for the High Court treating a petition under Article 226 of Constitution of India as one under Article 227 and/or under Section 482 of Cr.P.C. Even while doing so, the law requires the Court not to interfere with investigation at the stage of FIR, or criminal proceedings during the trial especially when prima facie triable criminal case is made out. It is also axiomatic that while exercising power under Section 482 Cr.P.C. or Article 227, the High Court does not act as an appellate authority or inquisitorial/ investigatory authority. High Court cannot even give directions to the Police to initiate criminal action and/or investigate the case in particular manner (see Divine Retreat Centre v State of Kerala). As noticed first submission is about the effect of Rule 123 read with Schedule ‘K’. Before dealing with this aspect, it is necessary to notice the scheme of the Act in brief especially the provisions in Chapter IV of the Act, which contains an inclusive definition of ‘drug’. Not only the medicines consumed by human beings or animals internally and all medicines used externally as well as substances used in the diagnostic tests or as preventive measures are included in the definition of ‘drug’. There is no dispute that phenolic disinfectant proportions are within the definition of drug under Section 3(b) of the Act. Therefore (keeping Rule 123 of Schedule ‘K’ aside for a while), the petitioner, which manufactures Lizol phenolic proportion has to comply with in usual course, the provisions of Chapter IV. This Chapter containing Sections 16 to 33-A of the Act, deals with manufacture, sale and distribution of drugs and cosmetics. Sections 18 and 27 are substantive provisions whereas other provisions are in the nature of adjutant procedural prescriptions. As per Section 18, manufacturing, selling and stocking of any drug is prohibited unless a person obtains licence issued for specific purpose under Chapter IV. The drugs and cosmetics manufactured have to conform to quality and standards as prescribed under Section 16 to 17(c). Section 27 prescribes penalties for manufacture and sale of drugs in contravention of provisions of Chapter IV. Clause (d) thereof lays down that any person who manufactures for sale or distribution a drug (other than drug referred in clauses (a) to (c)) shall in contravention of the provisions of Chapter IV shall be punishable with imprisonment for a term which shall not be less than one year, which may extend to two years and fine. Be it noted, Drug Inspector filed a complaint against petitioner under Section 27(d) alleging that they contravened Section 18(a)(i) of the Act. Thus, the charge against petitioner is that they manufacture ‘lizol’ disinfectant which is not of