Ali Mohd. Magrey, J.—The batch of these petitions shall be decided together as the point in issue involved in all the petitions is similar;
therefore, this order shall govern all.
2. The respondent-Drug Inspector on market checking collected various drugs from different places of different pharmaceutical companies for
testing its standard and the collected drugs were found, on testing, not to be of standard quality. Subsequently, the respondent adopted a legal
course by filing complaints before the competent courts of jurisdiction. The complaints filed in terms of Section 18 (a) (i), and 27 (d) of the Drugs
and Cosmetics Act, 1940, for short Act, were entertained and process issued by the respective courts.
3. On the assumption that the course adopted by the respondents'' and the Designate Courts is bad in law, the petitioners in these petitions
challenge its legal sanctity. Hence the petitions.
4. To make the controversy a little more vivid a brief case-wise event description is deemed appropriate, thus:-
5. Petitioner in 561-A no. 241/2016 is a partner in Zee Pharmaceuticals and is arrayed as accused in the complaint pending before the Chief
Judicial Magistrate, Srinagar, in terms of the Act supra. He challenges the complaint and the issuance of process on the ground that he is only
representative of the Company and the Company itself has not been arrayed as party which is a legal lacunae as it is well settled that the complaint
does not hold good in the eyes of law if the principal accused is not arrayed as party in the complaint. The further challenge is made on the ground
that the accused was not given enough time to disprove the testing report and that certain technical requirements have not been fulfilled as
warranted in terms of the Act supra.
6. Similarly, in 561-A no. 75/2015, titled Sarvear Pharmaceuticals v. Drug Inspector, Sopore, the challenge to the complaint filed in terms of
the Act supra and the issuance of process thereon by the court of Additional Sessions Judge, Baramulla, is made inter alia on the ground of having
failed to array the Company as the accused in the complaint, therefore, is bad in law. The petitioner, in the capacity of a partnership concern,
cannot be burdened with complete criminal liability of the Act attributable to the Company itself. The Drug Inspector concerned had lifted the
samples of ''Bactosar'' drug bearing batch no. 0253 which was found to be of not standard quality during its testing. Hence the petition.
7. In the petition no. 74/2015, petitioner again pleads the same ground to challenge the complaint filed in terms of the Act supra, pending before
the court of Additional Sessions Judge, Baramulla. The Drug Inspector, complainant, had lifted the samples of Injection Trialex 1000 bearing batch
no. 110211 and on testing found it not of standard quality.
8. In the petition no. 122/2015, petitioner challenges the legality of the complaint filed in terms of the Act supra before the Court of Chief Judicial
Magistrate, Anantnag, on the ground that the learned Judicial Magistrate failed to appreciate the plea that the complaint is bad in law, for, it does
not fulfil the requirements of Section 25 (4) and Section 34 of the Act supra and proceeded to record the statement of the accused in terms of
Section 242 of the Code of Criminal Procedure. The course adopted by the Designate Court is thus bad in law, therefore, requires to be interfered
with. The respondent, Drug Inspector Zone VI had, during checking, lifted the samples of Injection Trixim-SB 1.5 gms bearing batch no. AS-155,
for its testing and had been found not of standard quality.
9. In petition no. 294/2015, again the same plea has been raised that the Company is not arrayed as accused, therefore, complaint is bad in law
and it does not disclose the role played by the petitioner, Director of SGS Pharmaceuticals Pvt. Ltd. The Drug Inspector concerned, complainant,
had lifted the sample of Drug ''Pantaprazole'' bearing batch no. JPH-002 and on testing the drug has been found to be of not standard quality.
10. In petition no. 65/2016, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged on
the same ground again that the company has not been arrayed as party in the complaint; therefore, complaint is bad in law. It further attacks the
complaint on the ground that Section 25 of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the
analysis report. In this case the court of Chief Judicial Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against
the petitioner for being involved in the sale of drug namely Ceftriaxone bearing batch no. CF1J12003, which on analysis has been found to be not
of standard quality.
11. In petition no. 123/2016, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged
on the ground that the requirements of Section 19 (3) read with Section 34 of the Act supra have not been followed, therefore, complaint is bad in
law. In this case the court of Chief Judicial Magistrate, Handwara, had taken cognizance on a complaint filed in terms of the Act against the
petitioner for being involved in the sale of drug namely ""Nozol-40"" bearing batch no. NLT 02 which on analysis has been found to be not of
standard quality.
12. In petition no. 133/2015, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged
on the ground that the petitioner is a proprietor of M/s Nank Pharma dealing in Drugs as a distributor and he has no role to play in manufacturing
of a particular drug, therefore, the complaint and the cognizance taken thereupon is stated to be bad in law. In this case the court of Chief Judicial
Magistrate, Kulgam, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug
namely Enflam-S bearing batch no. T1207292, which on analysis has been found to be not of standard quality.
13. The petitioner in petition no. 121/2015, is a manufacturing unit of Pharmaceutical Company M/s G. S. Pharmaceuticals Pvt. Ltd. and
challenges the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra on the ground that Section 25 (3)
and (4) of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the analysis report. In this case the
court of Chief Judicial Magistrate, Kulgam, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in
the manufacturing and sale of drug namely Enflam-S bearing batch no. T1207292, which on analysis has been found to be not of standard quality.
14. Petitioners, in their capacity as partners in a partnership concern namely E. G. Pharmaceuticals, in petition no. 101/2015, challenge the
complaint filed and the process issued thereupon by the court concerned in terms of the Act supra on the same ground again that the company has
not been arrayed as party in the complaint; therefore, complaint is bad in law. It further attacks the complaint on the ground that Section 25 (3) and
(4) of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the analysis report. In this case the court of
Additional Sessions Judge, Baramulla, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the
sale of drug namely Traxon-1.0 gm bearing batch no. SIEG11009, which on analysis has been found to be not of standard quality.
15. In petition no. 271/2015, the petitioner is a manufacturer of the pharmaceutical company M/s Arion Health Care and challenges the complaint
filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged on the ground that in terms of Section 36 of
the Act supra the Designate Court does not have the jurisdiction to try the complaint. In this case the court of Forest Magistrate, Srinagar, had
taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the manufacturing and sale of drug namely
Trobact (inj) bearing batch no. FI. 1167, which on analysis, has been found to be not of standard quality.
16. In petition no. 270/2015, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged
on the ground that Section 25 of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the analysis
report. In this case the court of Forest Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the petitioner for
being involved in the sale of drug namely Warzone-SF 1.5 gms bearing batch no. B1.298, which, on analysis has been found to be, not of standard
quality. The petitioner is a Managing Director of the Pharmaceutical Company Arion Health Care.
17. In petition no. 224/2015, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged
on the same ground again that the company has not been arrayed as party in the complaint; therefore, complaint is bad in law. In this case the court
of Chief Judicial Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the
sale of drug namely Pantocos bearing batch no. SPT-1464, which on analysis has been found to be not of standard quality.
18. In petition no. 67/2016, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged on
the same ground again that the company has not been arrayed as party in the complaint; therefore, complaint is bad in law. It further attacks the
complaint on the ground that Section 25 of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the
analysis report. In this case the court of Chief Judicial Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against
the petitioner for being involved in the sale of drug namely Ceftriaxone bearing batch no. CF1J12005, which on analysis has been found to be not
of standard quality.
19. In petition no. 252/2013, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged
on the ground that established procedure required in terms of the Act has not been followed. In this case the court of Chief Judicial Magistrate,
Kargil, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug namely Anbrol
bearing batch no. AF- 1047, which on analysis has been found to be not of standard quality.
20. In petition no. 100/2015, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged
on the ground that Section 25 of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the analysis
report. In this case the court of Chief Judicial Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the
petitioner for being involved in the sale of drug namely Nimeth Methylergometrine Injection bearing batch no. NP-11-63, which on analysis has
been found to be not of standard quality.
21. In petition no. 79/2016, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged on
the ground that Section 25 of the Act supra has not been followed denying the petitioner of his right to adduce evidence against the analysis report.
In this case the court of Chief Judicial Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the petitioner for
being involved in the sale of drug namely Zepoxin bearing batch no. 1015185, which on analysis has been found to be not of standard quality.
22. In petition no. 66/2016, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged on
the same ground again that the company has not been arrayed as party in the complaint; therefore, complaint is bad in law. In this case the court of
Chief Judicial Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale
of drug namely P-Min 10% bearing batch no. 1125, which on analysis has been found to be not of standard quality.
23. In petition no. 132/2016, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged
on the ground that Sections 25, 34 and 36 of the Act supra have not been followed denying the petitioner of his right to adduce evidence against
the analysis report. Petitioner has approached the court of learned Additional Sessions Judge, Srinagar who proceeded against the petitioner. In
this case the court of Chief Judicial Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the petitioner for
being involved in the sale of drug namely Trixim-SB 1.5 gms bearing batch no. AS-155, which on analysis has been found to be not of standard
quality.
24. In petition no. 217/2015, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged
on the ground that learned Sessions Judge, Leh, has in disregard of the established law issued process against the petitioner when as a matter of
fact, the same court while hearing the revision petition against the order of learned Chief Judicial Magistrate, Leh, has set-aside the order of taking
cognizance. In this case the court of learned Additional Sessions Judge, had taken cognizance on a complaint filed in terms of the Act against the
petitioner for being involved in the sale of drug namely Amocil Oral Suspension bearing batch no. ALS1001, which on analysis has been found to
be not of standard quality.
25. In petition no. 242/2016, the complaint filed and the process issued thereupon by the court concerned in terms of the Act supra is challenged
on the same ground again that the company has not been arrayed as party in the complaint; therefore, complaint is bad in law. In this case the court
of Chief Judicial Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the
sale of drug namely Ceftriaxone bearing batch no. CF1J13002, which on analysis has been found to be not of standard quality. The petitioner is a
Vivek Pharma Chem India Limited Company .
26. Petitioner, a partner of Alliance Biotech, In petition no. 243/2016, challenges the complaint and the process issued thereupon by the court
concerned in terms of the Act supra on the ground that Section 25 of the Act supra has not been followed denying the petitioner of his right to
adduce evidence against the analysis report. In this case the court of Additional Sessions Judge, Pulwama, had taken cognizance on a complaint
filed in terms of the Act against the petitioner for being involved in the sale of drug namely Synacid bearing batch no. Al-765, which on analysis has
been found to be not of standard quality.
27. Petitioner, Director of Vivek Pharma Chem India Ltd, In petition no. 68/2016, challenges the complaint and the process issued thereupon by
the court concerned in terms of the Act supra on the ground of having not arrayed the Company as an accused. It further attacks the complaint and
the process on the ground that Section 34 of the Act supra has not been followed. In this case the court of Chief Judicial Magistrate, Srinagar, had
taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug namely Ampicillin bearing
batch no. AS1J12011, which on analysis has been found to be not of standard quality.
28. Petitioner, Director of Terrace Pharmaceuticals Pvt. Ltd, In petition no. 02/2016, challenges the complaint and the process issued thereupon
by the court concerned in terms of the Act supra on the ground of having not arrayed the Company as an accused. It further attacks the complaint
and the process on the ground that Section 25 (3) and (4) of the Act supra have not been followed. In this case the court of Chief Judicial
Magistrate, Kargil, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug namely
Quiper-D (tab) bearing batch no. MNT-130595, which on analysis has been found to be not of standard quality.
29. Petitioner, Managing Director of Morepen Laboratories, In petition no. 101/2016, challenges the complaint and the process issued thereupon
by the court concerned in terms of the Act supra on the ground of having not arrayed the Company as an accused. It further attacks the complaint
and the process on the ground that Section 25 (3) and (4) of the Act supra has not been followed. In this case the court of Special Mobile
Magistrate, Budgam, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug
namely Pantate-D bearing batch no. P30476, which on analysis has been found to be not of standard quality.
30. Petitioner, a Public Limited Company (Vivek Pharma Chem India Ltd) In petition no. 76/2016, challenges the complaint and the process
issued thereupon by the court concerned in terms of the Act supra on the ground of having not arrayed the Company as an accused. It further
attacks the complaint and the process on the ground that Section 21 of the Act supra is not satisfied. In this case the court of Chief Judicial
Magistrate, Srinagar, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale of drug
namely Ceftiaxone bearing batch no. CR1J13003, which on analysis has been found to be not of standard quality.
31. Petitioner, Managing Director of M. Sea Pharmaceuticals Pvt. Ltd. In petition no. 296/2015, challenges the complaint and the process issued
thereupon by the court concerned in terms of the Act supra on the ground of having not arrayed the Company as an accused. In this case the court
of Chief Judicial Magistrate, Bandipora, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in
the sale of drug namely Onofbact-200 bearing batch no. MST-13342, which on analysis has been found to be not of standard quality.
32. Petitioner, a Private Limited Company (Osper Formulations Pvt. Ltd) In petition no. 154/2015, challenges the complaint and the process
issued thereupon by the court concerned in terms of the Act supra on the ground of having not arrayed the Company as an accused. In this case
the court of Additional Sessions Judge, Baramulla, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being
involved in the sale of drug namely Ocef-1000 bearing batch no. 1178/B, which on analysis has been found to be not of standard quality.
33. Petitioner, a Private Limited Company, (Nikvin Health Care India Pvt. Ltd) in petition no. 158/2015, challenges the complaint and the process
issued thereupon by the court concerned in terms of the Act supra on the ground of having not arrayed the Company as an accused. It further
attacks the complaint and the process on the ground that Section 25 (3) and (4) of the Act supra has not been followed. In this case the court of
Chief Judicial Magistrate, Kulgam, had taken cognizance on a complaint filed in terms of the Act against the petitioner for being involved in the sale
of drug namely Pantalar-10 bearing batch no. 30620T, which on analysis has been found to be not of standard quality.
34. On notice, respondents appeared and filed their reply through the concerned Drug Inspectors mainly alleging as follows:-
The case is pending before the Designate Court at the stage pre-trial evidence; no evidence is recorded as yet; the extent of the liability of the
accused/ petitioners has to be established by evidence during trial; the petitioners/ accused manufactured and sold the adulterated drugs; petitioners
have full control over the day to day manufacturing of the drugs; the reports of the firms/ companies have been furnished the test reports and the
samples; in most of the cases the company/ firm have not requested for furnishing of test report; getting the adulterated drugs manufactured through
qualified and approved manufacturing and analytical chemist and selling them is an offence under section 18 of the Act; the summoning order is a
reasoned order, and at that stage it was only to be seen if prima facie the offences are made out against the accused or not; cognizance taken and
process issued in terms of the interim orders by the Designate Courts are interim in nature and cannot be challenged, et cetera.
35. The grounds taken in support of the petitions by the petitioners are that:-
The complaint does not disclose the actual role played by the petitioners/ companies and its directors in the commission of the alleged offence and
that in absence of any specific role being attributed to the accused the proceedings initiated against the petitioners are illegal; without jurisdiction
and tentamount to an abuse of process of law; the principal accused i.e. Company/ Firm/ Organization has not been arrayed as an accused in the
complaint, therefore, the complaint does not satisfy the requirement of Section 34 of the Act; the complainants have not provided the test report in
order to avail the right of re-analysis under section 25 (3) and (4) of the Act, therefore, statutory right of re-analysis stands denied to the
petitioners; statutory notice under section 25 (2) of the Act for furnishing statutory test report of Government Analyst on Form 13 to the petitioners
and manufacturing firms has not been complied with; the Drug Inspectors/ complainants not notified under section 21 of the Act in the Official
Gazette of the State of J&K, et cetera.
36. Heard learned counsel for the parties.
37. Let us, in the first instance, read the relevant provisions of the Act. Section 18 (a) (i) of the Act, in the first instance, is reproduced as under:-
18. Prohibition of manufacture and sale of certain drugs and cosmetics.
From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any
other person on his behalf-
a) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute-
(i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious;""-
38. Section 27 of the Act reads as under:-
27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.- Whoever, himself or by any other person on his behalf,
manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,
(underlining supplied)
39. Section 34 of the Act deals with offences by Companies. It would be profitable to reproduce the section of law as under:-
34. Offences by companies. - (1) Where an offence under this Act has been committed by a company, every person who at the time the
offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the
company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the
offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that
the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary
or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be
liable to be proceeded against and punished accordingly.
(Underlining supplied)
40. Perusal of the complaint reveals that the Drug Inspectors have, on the basis of the analysis report, establish quality of the drugs in question as
sub-standard, therefore, in order to ensure punishment as warranted in terms of the provisions of the Act have launched prosecution and filed the
complaints before the competent court of jurisdiction.
41. Perusal of the complaints and the documents on record reveals that the Designate Courts have, on proper application of mind and with
reference to the material on record, prima facie established that the petitioners and or the distributors, sellers have committed the offence,
therefore, taken cognizance and issued the process.
42. Accused/ petitioners feeling aggrieved of the impugned interim orders of the Designate Court have questioned the same in these petitions on the
grounds reflected in the foregoing paragraphs.
43. Learned counsel for the petitioners while strengthening the grounds urged in the petitions submitted that petitioner, Company/ Firm is a limited
company and in some of the petitions, petitioners are acting as Managing Directors/ Directors/ Partners etc. Inviting the attention of the court to the
requirement of Section 34 of the Act, it is submitted that the Hon''ble Supreme Court in a judgment delivered in case titled SMS
Pharmaceuticals Ltd. v. Neetu Bhalla (2009) SCC have while dealing with the case with reference to the requirement of Section 141 of the
Negotiable Instruments Act observed that the proceedings initiated in the case are liable to be set-aside as the Company being the primary
accused has not been arrayed as party in the complaint.
44. Learned counsel for petitioners further submit that the law is no more res-integra as unless the complainant conforms to the requirement of
Section 34 of the Act, as enunciated by the Supreme Court in the judgment supra, the complaint would not lie.
45. Learned counsel for the petitioners have also, while strengthening his arguments, with reference to the pleadings of the petitions submitted that
the statutory right of re-analysis under section 25 (3) and (4) of the Act stands denied to the petitioners as the complainant/ Drug Inspectors have
failed to provide copy of the analysis report to the petitioners, therefore, such denial renders the complaint and the process initiated as bad in law.
46. Learned counsel for petitioners further submit that statutory notice in terms of Section 25(2) of the Act for furnishing statutory test report to
Government analyst on Form 13 to the petitioners and the manufacturing firms has not been complied with which renders the complaint and the
process initiated thereupon liable to be declared bad in law and quashed as such.
47. Learned counsel for petitioners further submit that no specific averment against the Managing Director/ Director/ Partners, as required under
Section 34 of the Act have been made which renders the action bad in law and liable to be quashed.
48. Learned counsel for respondents, on the other hand, submits that where a Company is alleged to have committed the offence, the person who
was incharge of and was responsible for the business of the Company at the time when the offence was committed shall be deemed to be guilty of
the offence as per Section 34 of the Act.
49. Learned State Counsel further submits that the complainants have in the complaints specifically raised the averments that the petitioners where
incharge of and were responsible for the business of the Company as Managing Directors/ Directors/ Partners etc., are liable for the offence
committed by the Company. Learned counsel for respondents further submit that the Designate Courts have found that the allegations made in the
complaint, make out a prima facie case and that the accused/ petitioners have prima facie committed the offence. It is further submitted that in all
the complaints questioned in these petitions it is quite visible that petitioners have committed the offences alleged against them. Learned State
Counsel further submits that the perusal of the complaints filed against the petitioners before the Designate Courts reveal that the requirements of
Section 25 (2) (3) and (4) have been complied with. He would further submit that in some of the petitions the issue of having not complied with the
requirements of Section 25 (2) (3) and (4) is not raised at all.
50. He further submits that the question regarding Section 25 of the Act having not been followed is required to be determined by the Designate
Court through evidence, therefore, there is no scope for this court to deal with this issue of the complaint.
51. Heard learned counsel for the parties and considered the submissions made.
52. In the first instance the court shall refer to the express directives of the Apex Court passed in number of judgments that power in terms of
Section 561-A of the Code of Criminal Procedure is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of
appeal or revision. It has also laid down the parameters and guidelines in cases titled as K.L.E Society & ors v. Siddalingesh reported in 2008
AIR SCW 1993; A.P v. Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano v. State of Uttar Pradesh reported in
2008 AIR SCW 1998.
53. To keep the record straight, it is thought appropriate to state that respondents have chosen to file reply only in eight out of 29 petitions. In
petition nos. 217/2015 and 121/2015 the Designate Court record is available which demonstrates that trial of the accused/ petitioners was in
progress when all of a sudden the need was felt by the accused/ petitioners to file the petitions above referred to avoid trial which came to standstill
as the records of the said cases were called by this Court.
54. The only question for consideration for this court in these petitions is as to whether the petitioners/ accused have, prima facie, committed the
alleged offence to seek their prosecution before the Designate Court in terms of the provisions of the Act?
55. The provisions of Act supra would amply demonstrate that the defence raised by the petitioners to show that the process issued against them is
an abuse of process of law is rendering no help to them but instead lends credence to the case of the respondents, complainants as the plain
reading of the provisions would reveal that any person acting on behalf of the Company dealing with its day to day affair is liable for the actions of
the Company, and if the allegation against the company is that it has indulged in manufacturing/ distributing/ supplying or selling of a sub-standard
drug, the representative of the company vested with a responsible position like Managing director/ Director/ Manager/ Secretary etc., cannot
escape liability of such action. Similarly, the other accused/ petitioners who have been arrayed as accused for having indulged in sale of such sub-
standard drugs in the capacity of a distributor or a seller, for, they cannot be expected to be ignorant of the trade being undertaken through them
by somebody else; therefore, I believe they equally share the criminal liability.
56. The accused-petitioners are sought to be prosecuted by the complainants for the alleged manufacturing/ distribution/ sale of different drugs of
different companies which were found to be substandard on analysis. The drugs in question were sold on the date of its lifting by the respective
drug inspectors concerned at different places of Kashmir Region. The perusal of the complaints and other allied material would reveal that the
samples after its collection were sent to analysis in due regard of the applicable provisions and the accused/ petitioners were informed of the drugs
being sub-standard. It further appears from the perusal of the record that some of the drugs even on retesting, conducted at the request of
concerned quarter, were confirmed to be substandard, therefore, the plea that the petitioners/ accused were not provided with an opportunity to
get the drug reanalyzed in terms of Section 25 (3) of the Act is belied and rejected accordingly.
57. The next point raised by the learned counsel for petitioners that the complaints do not mention the role of the accused/ petitioner played by
them, in the process, to seek their prosecution is also negated by the records, for, the complainants were required to furnish to the court the
particulars of the accused to reflect the position they were holding at the time of the commission of offence to indicate their involvement. I believe
that the complainants were not required to put forth in black and white the description of the activities of the accused, as is supposedly being
assumed, but the indication as regards their position at the concerned quarter would suffice the accusation indeed. Therefore, the plea raised of
complaint being bereft of details as regards the involvement of the accused/ petitioners in the commission of crime also goes and is rejected
accordingly. The learned Designate Judges after perusal of the documents and the complaint prima facie found that the petitioners as well as other
accused not party to these petitions were liable to be proceeded against, have issued the process against them. The Designate Courts appear to
have been conscious of the role a Managing Director/ Director/ Partner of the firm can play in the manufacturing, distribution and sale of the drugs
in question, therefore, have rightly issued process against them. It was not expected of the Designate Courts to discuss the liability of the individuals
in the commission of crime at the stage of taking cognizance of the complaint. The extent of liability would surely be determined and established
subsequently by evidence during trial. Thus, the plea that the benefit of Section 34 of the Act should be extended to accused petitioners is also
turned down.
58. The other aspect of the matter is that the petitioners have not been held to be guilty and only a process is issued to them to defend themselves
against the charges levelled against them in the complaints and the process issued was and had to be taken as an opportunity by the petitioners to
prove to the contrary of what is being pleaded before the Designate Court by the medium of complaints in question.
59. It is a settled law that the remedy available in terms of Section 561-A of the Code of Criminal Procedure is to be exercised by the courts of
law in very rare cases when it is convinced that the proceedings challenged have resulted in miscarriage of justice and or are abuse of process of
law. The endeavour of the court in terms of section 561-A of the Code is always to ensure that the spirit of law is promoted and its process is not
abused by the law enforcing agencies.
60. The very provisions of the Act as reproduced hereinbefore would conveniently make it clear that the provisions of the Act have been made use
of to promote the law spirit and not abused or misused to cause miscarriage of justice. The offence alleged against the accused petitioners is very
heinous in nature and involves a large public interest. The hands those deal with risking the peoples'' lives for their commercial gains cannot be
strengthened to use the provisions of law to their advantage and feel encouraged to take shelter under the auspices of same law that seeks
punishment for such elements.
The object of the Act is to prevent the manufacturing; distribution; supply and sale of sub-standard, spurious, adulterated drugs and maintain the
drug quality in the market to see that the precious lives do not fall prey to nefarious designs of money hungry people who are out there to disturb
the public order for their personal gains and such nobility is required to be advanced rather than being shelved and or confined to paper work only.
The stringent measures are required to be put in place to see and ensure that the object of the Act gets achieved and the shortcomings wherever
found, be set right.
61. The law referred to and relied upon by the learned counsel for petitioners in support of their case passed by the Hon''ble Apex Court in case
titled M/s. Medicamen Biotech Ltd. & Anr. v. Rubina Bose reported as 2008 (7) SCC 196 relates to a case where the challan was
produced before the Designate Court just a month short of expiry date of shell life of Drug. Similarly, the case law referred to and relied upon by
the learned counsel as has been passed in case titled State of NCT of Delhi v. Rajiv Khurana reported as 2010 (11)SCC 469 relates to a
case that deals with Insecticides Act, 1968, therefore, not applicable to the instant case as the criminal liability of the instant case with that of the
referred one is different; the other case law referred to and relied upon by the learned counsel for the petitioners has been passed on the dissimilar
facts. Ms. Masooda Jan, learned counsel, in some of the petitions raised one issue that accused in some case has been proceeded against not for
the drug being sub-standard in quality but in quantity as the drug was reported to be 79.877% instead of 80%, therefore, in that case the
interference is warranted. I believe that the Designate Court would take into consideration all the aspects while adjudicating upon the complaints
and pass appropriate orders thereon.
62. Otherwise also, even if it is assumed that, the complainant has omitted to strictly follow the format, the technicality cannot be preferred over
substantial justice, moreso, for the reason that the alleged offence pertains to and involves the precious human lives.
63. For all what has been said hereinbefore, all these petitions are dismissed for lacking the legal credibility to warrant indulgence in the trial
initiated against the petitioners. Interim directions wherever granted shall stand vacated. Designate Courts are directed to proceed ahead in the
matter in terms of the law applicable.
64. Registry to keep a copy of this judgment on each file.
65. Registrar Judicial shall communicate this order to all the subordinate courts especially the Designate Courts whose orders were under challenge
in these petitions.
66. Designate Court records wherever received be returned forthwith.
67. There shall be no order as to costs.
68. Registry to send a copy of this judgment to Commissioner Secretary Health and Medical Education for information.
