Crl.
Misc.
No.M-34853 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.
Misc.
No.M-34853 of 2011 (O&M) Date of decision: 20.09.2013 Brij Mohan and another ...Petitioners Versus State of Punjab through the District Drugs Inspector, Amritsar ...Respondents CORAM : HON’BLE MS JUSTICE RITU BAHRI Present: Mr.Anupam Bhardwaj, Advocate, for the petitioneRs.Mr.Daljit Singh Virk, AAG, Punjab.
1.
To be referred to the Reporters or not?.
2.
Whether the judgment should be reported to the Digest?.
RITU BAHRI, J.
This petition under Section 482 Cr.P.C., is for quashing of Complaint C.R.No.11/10 dated 03.04.2010, under Sections 18 (a) (i) read with Section 7-B punishable under Sections 27 (b) (i).27 (c) and 27 (d) of the Drugs and Cosmetics Act, 1940 (Annexure P-1) (for brevity 'the Act') and the order dated 03.04.2010 (Annexure P-4) passed by the Chief Judicial Magistrate, Amritsar, whereby the petitioner has been summoned to face trial in the aforesaid complaint.
Brij Mohan-petitioner No.1 is partner in M/s H.K.Prasher Ajay 2013.10.09 10:23 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Misc.
No.M-34853 of 2011 (O&M) 2 Pharmaceuticals, Dera Baba Nanak Road, ajnala, District Amritsar- petitioner No.2.
The petitioner firm is a wholesaler, dealing in sale of drugs of various manufacturing companies.
Some medicines/drugs were sold to M/s Sarpal Medical Hall, Ajnala.
As per complaint (Annexure P-1).on 03.04.2002, Sh.
Gurbinder Singh, Drugs Inspector along with Dr.A.Gauba, inspected the shop of M/s Sarpal Medical Hall and took two samples of drugs for test/analysis under the provisions of the Act.
After completing the necessary formalities, the samples were sealed and submitted in the office of Government Analyst, Punjab, chandigarh.
Report from the Government Analyst was received on 17.06.2002 and the drug was declared as not of standard quality due to the following reasons:- (i) The identification test for Metronidazole Benozoate found Negative.
(ii)The content of Metronidazole found to be Zero mg/5ml against the labeled claim of 100 mg/5ml of Metronidazole.
(iii)The contents of Norfloxacin found 59.31 mg/5ml against the labeled claim of 100 mg/5ml.
A notice along with test report was sent to M/s Sarpal Medical Hall, Ajnala, who along with its reply dated 09.10.2002, submitted photocpy of purchase bill No.2928 dated 29.01.2002 of M/s H.K.Pharmaceutical, Dera Baba Nanak Road, Ajnala, District Amritsar- petitioneRs.Thereafter, a notice was sent to the petitioner-firm on 14.10.2002.
In its reply dated 31.10.2002, the petitioner-firm submitted Prasher Ajay 2013.10.09 10:23 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Misc.
No.M-34853 of 2011 (O&M) 3 photocopy of purchase bill No.25499 dated 26.07.2001 of M/s Guru Nanak Medicine Company, Katra Sher Singh Amritsar.
Ultimately, M/s Torque Pharmaceuticals (P) Ltd.,(manufacturer of the aforesaid drug) vide statement dated 28.07.2006, suspected that the retail sale chemist, rom whom the sample was drawn, had not stored the drug properly or somebody might have marketed counterfeit drug.
Consequently, prosecution was issued against Rakesh Kumar, proprietor of M/s Sarpal Medical Hall, Chogawan Road, Ajnala and Brij Mohan, partner of M/s H.K.Pharmaceuticals-petitioneRs.vide complaint dated 03.04.2010 (Annexure P-1).They were summoned vide order dated 03.04.2010, passed by the trial Court.
On notice, reply on behalf of the respondent, in the shape of affidavit of Drugs Inspector, Amritsar, has been filed.
It is not disputed that the drugs had been taken from the retailer i.e.M/s Sarpal Medical Hall, who in turn had informed that he had purchased the drugs in question from the petitioners i.e.M/s H.K.Pharmaceuticals.
The petitioners had purchased the said drugs from M/s Guru Nanak Medicine Company, Katra Sher Singh, Amritsar, on 26.07.2001.
After the report of Analyst, the drug was found to be suprious under Section 17-B (d) and 17 (b) (e) of the Act.
The manufacturer of the drugs i.e.M/s Torque Pharmaceuticals (P) LTD.stated that the drug was either not stored as per the directions given by them or somebody might have marketed counterfeit drug.
The same drug was analysed by the Government Prasher Ajay 2013.10.09 10:23 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Misc.
No.M-34853 of 2011 (O&M) 4 Analyst and it was found to be not of standard quality.
Learned counsel for the petitioners has sought quashing of the complaint on the following grounds:- 1.
That as per the report of the Government Analyst dated 17.06.2002, the drug was declared as not of standard quality.
Therefore, the limitation for filing the complaint starts from the said date i.e.17.06.2002.
However, in the present case, the complaint (Annexure P-1) has been filed on 03.04.2010, therefore, the same is barred by limitation.
2.
The petitioners are wholesale dealers and in their reply dated 31.10.2002, they had sent photocopy of purchase bill No.25499 dated 26.07.2001 of M/s Guru Nanak Medicine Company, Katra Sher Singh, Amritsar.
Even though, eventually, M/s Torque Pharmaceuticals (P) Ltd., in their statement dated 28.07.2006 had suspected that the retail sale chemist, from whom the sample was drawn, had not stored the drug properly or somebody might have marketed counterfeit drug, the petitioners who are the wholesale dealeRs.cannot be made to suffer a trial after a period almost eight yeaRs.Heard, counsel for the parties.
The present complaint has been filed against the petitioners-wholesale dealeRs.for contravention of Section 18 (a) (i) read with Section 17-B, punishable under Sections 27 (b) (i).27 (c) and 27 (d) of the Act.
Firstly, we shall see, what is the Prasher Ajay 2013.10.09 10:23 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Misc.
No.M-34853 of 2011 (O&M) 5 limitation prescribed for the offence, as per the complaint.
In this regard, Section 27 (b) is reproduced as under:- "27 (b) any drug-- (i) deemed to be adulterated under Section 17A, but not being a drug referred to in clause (a).or (ii)without a valid licence as required under clause (c) of section 18, shall be punishable with imprisonment for a term which shall [not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more].; Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than three years and of fine of less than one lakh rupees]." The punishment in this Section has been substituted by Act No.26 of 2008.
Earlier the punishment was not less than one year, however, now the punishment has been extended as "not less than three years but which may extend to five yeaRs.Similarly, clause (c) of Section 27 of the Act is reproduced as under:- "27 (c).any drug deemed to be spurious under section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall [not be less than seven yeaRs.but which may extend to imprisonment for life and with fine which shall not be less than three lakh rupees or three times the value o the drugs conffiscated, whichever is more].Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than seven years but not less than three years and of fine of less than one lakh rupees].."
This punishment was substituted by Act No.26 of 2008 and prior to the amendment, it was not less than one year.
Prasher Ajay 2013.10.09 10:23 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Misc.
No.M-34853 of 2011 (O&M) 6 Similarly, clause (d) of Section 27 of the Act is reproduced as under:- "27 (d).any drug, other than a drug referred to in clause (a) or clause (b) or clause (c).in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years [and with fine which shll not be less than twenty thousand rupees].; Provided that the Court may for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year."
This punishment has also been substituted by Act 26 of 2008.
A careful reading of the above Sections makes it clear that after the amendment in 2008, the punishment for the offences has been increased.
Prior to 2008, the punishment was not less than three years and maximum was five years for the offence under Section 27 (c) of the Act.
In the present cae, the samples were taken on 03.04.2002 and the report of the Government Analyst, Punjab, came on 17.06.2002.
The date of commission of the offence is the date of the report of Government Analyst.
Since the petitioners have been summoned for the offence under Sections 27 (b) (i).27 (c) and 27 (d) of the Act, there are three different periods prescribed for punishment in all the three offences.
The maximum punishment is prescribed for commission of an offence under Section 27 (c) of the Act.
Before amendment, the maximum punishment under Section 27 (c) of the Act was five years Prasher Ajay 2013.10.09 10:23 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Misc.
No.M-34853 of 2011 (O&M) 7 and after amendment, the same is seven yeaRs.As such, the limitation for all the offences, if they are tried together, will have to be taken as five years (which was prescribed before amendment in the year 2008).The report of the Government Analyst was received on 17.06.2002, whereas the present complaint has been filed on 03.04.2010 i.e.beyond the period of limitation of five yeaRs.therefore, on this short ground itself, the complaint is liable to be dismissed.
The Hon'ble Supreme Court in State of Rajasthan versus Sanjay Kumar, 1998 (3) RCR (Criminal) 846, had examined the provisions of Drugs and Cosmetics Act, 1940 in relation to Section 469 (1) (b) of Crl.
P.C.and observed as under:- "6.
In the Code of Criminal Procedure, 1973, Chapter XXXVI has been added prescribing limitation for taking cognizance of certain offences with a view to expedite the process of the trial of the offences by barring belated prosecution.
Delay in prosecution of offences causes undue hardship as it keeps the sword hanging on the heads of accused persons and it also results in the material evidence getting vanished.
This chapter applies to all such offences for which punishment prescribed is less than three yeaRs.But it does not apply to offences for which punishment prescribed is more than three years and to economic ofences under various Acts, which are excluded under Central Act No.12 of 1974 or any State Acts.
It contains seven Sections (467-473).Section 467 defines the expression period of limitation used in the chapter.
Sections 468 to 473 deal with various aspects of computation o limitation.
Of the aforesaid provisions, we are concerned with Section 468 and 469.
Sub-section (1) of Section 468 ordains that no Court shall take cognizance of an ofence of the category specified in sub-section (2).after the expiry of the period of limitation prescribed thereunder.
This, however, is subject to the other provisions of the Code.
Sub-section (2) postulates different period of limitation for offences with reference to the punishment provided for Prasher Ajay 2013.10.09 10:23 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Misc.
No.M-34853 of 2011 (O&M) 8 them; if the punishment provided for an offence in any Act is only fine, the period of limitation fixed is six months; if the offence is punishable with imprisonment for a term not exceeding one year, the period of limitation prescribed is one year and if the offence is punishable with imprisonment for term exceeding one year but not exceeding three yeaRs.the period of limitation laid down is three yeaRs.And sub- section (3) spells out the rule of limitation in cases of joinder of charges; if a person is tried for more offences than one, then the period of limitation will be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment; for example, if a person is tried for various offences and some of them are punishable with fine and some with imprisonment for a term less than a year and some for which the punishment is provided upto three yeaRs.then the period of limitation for all the offences, if they are tried together, will be three years."
The aforesaid view of the Hon'ble Supreme Court has been followed by a Co-ordinate Bench of this Court in M/s Ganesh Agro Service Centre, Moga versus State of Punjab, 2003 (1) RCR (Criminal) 833.
In the light of the aforesaid discussion and the law laid down in Sanjay Kumar's case (supra).this Court is of the opinion that the complaint (Annexure P-1) has not been filed within the period of limitation prescribed, therefore, the same deserves to be quashed.
Resultantly, complaint No.11/10 dated 03.04.2010, under Sections 18 (a) (i) read with Section 7-B punishable under Sections 27 (b) (i).27 (c) and 27 (d) of the Drugs and Cosmetics Act, 1940 (Annexure P-1) and the summoning order dated 03.04.2010 (Annexure P-4).are quashed along with all consequential proceedings arising Prasher Ajay 2013.10.09 10:23 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Misc.
No.M-34853 of 2011 (O&M) 9 therefrom qua the petitioneRs.Petition stands allowed accordingly.
(RITU BAHRI) 20.09.2013 JUDGE ajp Prasher Ajay 2013.10.09 10:23 I attest to the accuracy and integrity of this document High Court Chandigarh