THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.4404 of 2009 (Dated : 08-12-2011) Between: Reckitt Benckiser (India) Limited Okhla, New Delhi – 110 020 And another ...Petitioners A n d State of Andhra Pradesh Rep. by its Public Prosecutor, High Court of A.P, Hyderabad. ...Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.4404 of 2009 ORDER: This criminal petition has been taken out under Section 482 Cr.P.C., by A-1-Reckitt Benckiser (India) Limited and A-2-Reckitt Benckiser India Pvt. Limited in C.C.No.1676 of 2008 on the ﬁle of V Additional Judicial First Class Magistrate, Warangal to quash the proceedings therein. 2. Petitioner No.1 is a company engaged in the manufacture, sale and marketing of various household products including Dettol, Cherry Blossom Shoe polish, insecticides such as Mortein Mosquito coils, Mats, Vaporizers, Harpic disinfectant Toilet Cleaner (“Harpic”) and Lizol Disinfectant Floor Cleaner (“Lizol”). Harpic liquid labeled as Kills Germs is a drug as per Section 3(b) (ii) of the Drugs and Cosmetics Act, 1940 (“ the Act”, in short). The Director, Drugs Control Administration , Hyderabad issued a circular memo bearing No.4139/M1/B/2005, wherein it is stated that the sale of unlicensed disinfectant product under the Branch names of Harpic, Kiwikleen Sanifresh etcetera is in violation of Section 18(c ) of the Act. The Drugs Inspector, Warangal (urban) surprised the premises of M/s. Murali Agencies situated at 13-2-115, Jyothi Colony, Mettewada, Warangal on 22.7.2005 and found stocks of Harpic liquid with a lable as “Kills Germs”. He issued Form -15 for four varieties of Harpic liquids and instructed the dealer-Ch.Murallidhar Rao, Proprietor of M/s. Murali Agencies, not to carry out sale of drugs until further orders . On 28.7.2005, the Drug Inspector, Warangal (Urban) addressed a letter to M/s. Reckitt Benckiser (India) Ltd. calling for information with regard to a) Formula of Harpic liquid b) Manufacturing Drugs Licence along with approved product list c) Details of Raw material used in the manufacture of each product d) Manufacturing Records e) Constitution particulars along with residential address of the firm f) Name and address of the parties to whom the said product had been supplied. There being no response to the letter dated 28-7-2005, the Drug Inspector inspected the premises of M/s.Murali Agencies in the presence of two panch witnesses and seized four varieties of Harpic liquid under a cover of panchanama. He collected samples of four varieties of drug for analysis under Form No.17 by paying the costs of drugs, vide Bill No.28160102524, dated 01.9.2005 for Rs.666-68 paise. He packed the samples duly following the procedure prescribed in Section 23 of the Act. He sent each portion of the four samples to the Government Analyst, Drugs Control Laboratory, Hyderabad for analysis. He also seized purchase invoices of Reckitt Benckiser (India) Ltd. He deposited the seized property along with documents on 02.9.2005 in the Court of I Additional Judicial First Class Magistrate, Warangal duly following the provisions as per Section 23(5)(b) and 23(6) of the Act. On 17-9-2005, he addressed letter to M/s. Reckitt Benkiser (India) Ltd., CFA, 8-2-82/7, Survey No.110, Old Bownepally, Secunderabad u/Sec 22(1)(cca) of Act seeking the following information:- a) to conﬁrm the sale of Harpic fresh citrus, Harpic fresh ﬂoral and Harpic fresh ﬁne , vide invoice No.56301894, dated 17.6.2005. b) copy of Drugs sale licence c) Purchase particulars of Harpic liquid as per your invoice d) Distribution particulars of Harpic liquid e) Constitution particulars along with residential address of the Director One P.R.Vythu Lingam, Commercial Manager of M/s. Reckitt Benckiser (India) Ltd (A-6) requested time up to 31-10-2005 for furnishing information. Despite repeated reminders, the petitioners (A-1 and A-2) have not furnished the necessary information called for by the Drug Inspector, Warangal (Urban). On 6-5-2006, the Drug Inspector inspected the premises of Reckitt Benckiser (India) Ltd., situated at 5-3/5, Sy.No.63/36, Boduppal, Uppal Mandal, Ranga Reddy District and handed over letter, vide No.784/VBB/DIW(U)/05, dated 01.5.2006 to Seshu Sai and obtained acknowledgment. The Drug Inspector (urban) obtained copy of wholesale licence bearing No.20B, 21B/412/PR/AP/2005/W of the petitioner No.1 ﬁrm. He received analytical reports in Form 13 for Harpic Plus Bleach, Harpic fresh pine, Harpic fresh cirtrus and Harpic Power liquid. As per the report, all the above products contain Hydrochloric Acid and kills germs , which is a germicide which attracts the deﬁnition of disinfectant and it is a drug as per Section 3(b) (ii) of the Act. According to the complainant, the petitioner No.1 firm had manufactured four varieties of Harpic liquids without a valid licence and it is in violation under Section 18( c) of the Act. It is further stated in the complaint that the petitioners have not given any reply to the notice served under Section 22(1) (cca) of the Act and therefore, the petitioners are liable for punishment under Section 22(3) of the Act. 3. The learned V Additional Judicial First Class Magistrate, Warangal took cognizance of the oﬀence punishable under Section 22(1) (cca) read with Sec.22(3) of the Act and issued summons to the petitioners, who have been arrayed as A-1 and A-2. Hence this petition by A-1 and A-2 under Section 482 Cr.P.C with a prayer stated supra. 4. Heard Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the petitioners and the learned Additional Public Prosecutor appearing on behalf of the respondent-complainant. 5. Learned senior counsel submits that even if the allegations made in the complaint are taken to be true, they do not disclose commission of any oﬀence punishable under Section 22(i)(cca) read with Sec. 22(3) of the Act inasmuch as the respondent-complainant stated in the complaint that the petitioners had obtained a licence to manufacture the HARPIC products as required under the Act. He would further submit that the Commissioner, Food and Drug Administration, Maharashtra had lifted the ban on sale of Harpic and permitted the petitioner to clear the Harpic stock pending issue of licence, vide letter dated 10-5-2005. Therefore, initiation of proceedings against the petitioners on the ground of their not possessing valid licence amounts to abuse of process of Court. A further submission has been made by the learned senior counsel that the analyst report has not been furnished to the petitioners and non- furnishing of analyst report caused much prejudice to the petitioners as they deprived of their valuable right of proving that the samples seized were manufactured subsequent to the grant of licence. Learned senior counsel would further contend that the trial Court failed to follow the mandatory procedure as required under Section 202(1) of Cr.P.C., whereby, if the accused reside beyond its territorial jurisdiction, then the trial Court is mandatorily required to postpone the issue of process to the accused and conduct an inquiry as to whether there is suﬃcient ground for proceeding. In support of his submissions, reliance has been placed on the decision of Supreme Court in K.T.Joseph v. State of Kerala [1] and the decision of Bombay High Court in S C Mathur Capt v. Elektronik Lab[2]. 6. Learned Additional Public Prosecutor submits that the petitioners failed to respond to the notices issued by the respondent-complainant calling for certain particulars and failure of the petitioners to furnish particulars is an offence punishable under Section 22(3) of the Act and therefore, the trial Court is justiﬁed in taking cognisance of the offence punishable under Section 22(3) of the Act and issuing summons to the petitioners, who have been arrayed as A-1 and A-2. 7. The learned Magistrate as per the docket proceedings dated 26-11-2008 took cognisance of the oﬀence punishable under Section 22(i) (cca) read with Section 22(3) of the Act. For better appreciation, I may extract the docket proceedings, dated 26-11-2008, which reads as hereunder:- “ Taken on ﬁle against A1 and A2 u/Sec 22(i)/(CCA) of Drugs and Cosmetics Act, punishable under Sec. 22(3) r/w Sec. 22(3) of Drugs and Cosmetics Act. Issue summons to A-1 and A-2 call on 04-5-2009”. Whereas the summons issued to the petitioners indicate that they are required to answer the charge for the offence punishable under Section 27(b)(ii) r/w Section 18( c) of the Act. The question of issuing summons to the petitioner to answer the charge on the said provision does not arise when the learned Magistrate has not taken cognisance of the oﬀence under the said oﬀence. Therefore, the very summons issued to the petitioners seeking appearance to answer the charge punishable under Section 27(b)(ii) r/w Section 18(c ) of the Act, cannot be sustained. 8. I have gone through the complaint presented by the 2nd respondent-complainant before V Additional Judicial First Class Magistrate, Warangal. It is not stated in the complaint that copy of the analyst report has been furnished to the petitioners herein who have been arrayed as A-1 and A-2. Section 25 of the Drugs and Cosmetics Act, 1940 reads as hereunder:- 25. Reports of Government Analysts. – (1) The Government Analyst to whom a sample of any drug has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. (2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the third copy for use in any prosecution in respect of the sample. (3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken [or the person whose name, address and other particulars have been disclosed under section 18A] has, within twenty-eight days of the receipt of a copy of the report, notiﬁed in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. (4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notiﬁed his intention of adducing evidence in controversion of a Government Analyst’s report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused: cause the sample of the drug1[or cosmetic] produced before the Magistrate under sub-section (4) of section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein. (5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct.“ 9. A plain reading of the above-referred section indicates that it was obligatory on the part of the Inspector to deliver the copy of the report to the petitioners. It is apparent from the record that the copy of the analyst report has not been furnished to the petitioners, who have been arrayed as A-1 and A-2 and thereby, the petitioners lost their valuable right of proving that the samples so seized were manufactured after obtaining the licence to manufacture as required under the Act. In view of the infraction of the mandatory provisions, continuance of the proceedings against the petitioners in C.C.No.1676 of 2008 on the ﬁle of V Additional Judicial First Class Magistrate, Warangal amounts to abuse of process of Court. 10. Accordingly, the Criminal Petition is allowed quashing the proceedings in C.C.No.1676 of 2008 on the ﬁle of V Additional Judicial First Class Magistrate, Warangal. _____________________ B.SESHASAYANA REDDY, J Dt.08-12-2011 RAR [1] (2009) 15 Supreme Court Cases 199 [2] 2010-BCR (Crl) –2-385