IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39868 of 2006 ARUN SULTANIA Versus STATE OF BIHAR & ANR ----------- For the Petitioner : M/s. N.K. Agrawal, Senior Advocate and D.N. Tiwari, Advocate. For the State : Mr. Jharkhandi Upadhayay, A.P.P. For O.P. No.2 : None. -------------- O R D E R This application by the petitioner, the proprietor of M/s. Sultania & Sultania, the erstwhile Clearing and Forwarding Agent(hereinafter referred to as “the C & F Agent”) of M/s. Hindustan Lever Limited(hereinafter referred to as “the Company”) has prayed for the quashing of entire criminal proceedings including the order of cognizance dated 6.1.1997 taken in Case No.12(M) of 1997 passed therein by the learned Chief Judicial Magistrate, Patna for offences under Sections 22(3) and 27 of the Drugs and Cosmetics Act, 1940(hereinafter referred to as “the Act”). It appears that on the basis of a written report filed by the Drug Inspector(O.P. No.2) with the Malsalami Police Station on 4.1.1996, Malsalami P.S. Case No.3 of 1996 was registered with the following allegations: That the Drug Inspector held an inspection on 9.6.1995 of the business premises of the C & F Agent at Patna City in course whereof it was found that the label of “Domestos” floor cleaner did not bear the license number which created a suspicion in the mind of - 2 - the Drug Inspector that M/s. Sans Soaps and Detergent, Bangalore were manufacturing the product without obtaining any license whereas the Company was the marketer of the said product. In view of Rule 96 of the Drugs and Cosmetics Rules it was necessary to mention the Manufacturing License Number, Batch Number, Expiry Date etc. but none of them were mentioned thereupon. Accordingly, the Drug Inspector ordered the C & F Agent not to dispose of the aforesaid floor cleaner till further orders. It appears that the said F.I.R. was challenged by the Company in Cr.W.J.C. No.529 of 1996 and this Court by order dated 20.9.1996 was pleased to quash the First Information Report and the investigation by the police on the basis of the said F.I.R. whereafter an office order was issued by the Drug Controller on 31.7.1997 wherein the Drug Inspector was directed to lodge a complaint against M/s. Sans Soaps and Detergent, Bangalore , M/s. Hindustan Lever Limited, Calcutta and M/s. Sultania & Sultania , Patna City, and notwithstanding the specific orders of the Drug Controller the Drug Inspector in violation of the directions and with ulterior intention and malafide motive lodged the instant complaint only against the petitioner, the proprietor of the C & F Agent and the learned Magistrate has taken cognizance mechanically. It has been submitted by the learned counsel for the petitioners that the Company had informed the Drug Inspector through letter dated 29.6.1995 that “Domestos” was a floor cleaner and as such the same was not covered by the provisions of the Act and it was only - 3 - by way of extra precaution that he manufacturer Sans Soaps and Detergent had applied for a license for manufacturing “Domestos”. In this context, it was submitted that the C & F Agent was admittedly not the manufacturer of “Domestos” floor cleaner and the manufacturer Sans Soaps and Detergent had been granted a license for manufacturing the same on 18.5.1995 and that the grant of license under the law relates back to the date of first manufacture and tantamounts to ipso facto permission by the authority from the date of application which admittedly was much prior to the date of manufacture. It was also submitted that floor cleaner admittedly is not a drug under the definition of the Act and as such the prosecution of the petitioner thereunder is an abuse of the process of the court more so when no allegation has been made against the petitioner and the only allegation against C & F Agent was that they were agent of the marketer of “Domestos” floor cleaner. The further grievance of the petitioner was that after quashing of the F.I.R. by the Hon’ble Court the present complaint on the same allegations was bad in law and liable to be quashed. Though the Drug Inspector was validly served with notice, for the reasons best known to him, he chose not to appear and contest the application and as such the submission advanced by the learned counsel for the petitioner remains unrebutted since the learned A.P.P. was not in a position to support the action of O.P. No.2. Admittedly, this very question fell for decision in the case of Hindustan Lever Limited Vs. State of Bihar reported in 2005(3) - 4 - PLJR 662 wherein it was held that “ the floor cleaner in question has been exempted from the provisions of Chapter-IV by virtue of Rule 123 read with Item-12 of Schedule-K and Rule 123 lays down that the drugs specified in Schedule-K shall be exempted from the provisions of Chapter-IV of the Act and the Rules made thereunder and subject to the conditions specified in that Schedule. Therefore, the prosecution of the petitioner appears to be an abuse of the process of the court. There is another aspect of the matter. Admittedly, the F.I.R. of Malsalami P.S. Case No.3 of 1996 was quashed by the High Court and notwithstanding the same on the same allegations a complaint was sought to be lodged by the Drug Inspector in violation of the directions given by the Drug Controller, admittedly his superior officer, which only displays the malafide intention and ulterior motive of the Drug Inspector. Such prosecution cannot be allowed to continue more so when 13 years have passed and no palpable progress has been made in the case even after the Magistrate had taken cognizance as far back as on 6.1.1997. In my opinion, the instant case is an absolute abuse of the process of the court. Accordingly, the application is allowed and the impugned order, so far as the petitioner is concerned, is hereby quashed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 31st of July, 2008. Pradeep Srivastava/A.F.R.