Shyam Lal Singhla Vs. State of Uttarakhand and Another - Court Judgment

U.C. Dhyani, J. (Oral)

1. Two complaints were filed and one first information report was lodged against the applicant Shyam Lal Singhla and another. All the three prosecutions were instituted by Arvind Kumar Gupta, Drugs Inspector, Directorate of Medical and Health, Dehradun.

2. Criminal Case No. 1159 of 2004 was instituted by the respondent no. 2 against the applicant and another in the Court of CJM, Rudraprayag, in respect of offences punishable under Sections 18(a) (i) and 18 (vi) /27 of Drugs and Cosmetics Act, 1949 and violation of provisions of DICO 1995 read with Section 3/7 of Essential Commodities Act. Another criminal case no. 921 of 2004 was instituted by the same respondent against the same accused persons in respect of the selfsame offences in the Court of Chief Judicial Magistrate, Nainital. Both the criminal case pertain to the taking of sample of Ampirox Capsule. The batch no. of Ampirox Capsule in the criminal case registered in Rudraprayag was A x C – D03 and batch no. of Ampirox Capsule in the criminal case registered at Nainital was A x C- ( Jo4). It is the allegation in both the complaints that the sample of Ampirox Capsule, purported to be manufactured by M/S VIP Pharmaceuticals Private Limited, 14/5 Mathura Road, Faridabad-121003 was collected for test and analysis as per the provisions of the Act.

3. Test report no. 15-2/2002-PandP/UC-60/336 dt. 05.05.2003 on Form 13 was sent by Govt. Analyst CDL Kolkata declaring the said drug of not of standard quality as the Capsule containing Hard Sticky Mass.

4. Thus, in both the complaints filed in the Courts of Chief Judicial Magistrate at Nainital and Rudraprayag, it was the allegation that the drugs manufactured by the accused-applicant, were of sub-standard quality. Learned counsel for the applicants prayed that the complaint pending in Rudraprayag be transferred to Nainital, as the parties, as well as the subject matter of both the complaints is the same. Both the complaints were held by the Drugs Inspector of Nainital. Since both the complaints were filed by Arvind Kumar Gupta, Inspector of Drugs, Nainital, against the same accused-applicant, in respect of the same drugs, although the batch numbers of the capsules were different, and the subject matter of both the complaints is the same, therefore, it will be expedient in the interest of justice, if both the complaint cases are directed to be decided by one Court. It is accordingly provided that the criminal case no. 1159 of 2004 (renumbered as criminal case no. 837 of 2006) pending in the Court of Chief Judicial Magistrate, Rudraprayag is recalled from that Court and is made over to the Chief Judicial Magistrate, Nainital for disposal according to law, in the interest of justice. This Order is being passed by this Court in exercise of its jurisdiction under Section 407 (i) (c) of the Code of Criminal Procedure. Criminal Misc. Application (under Section 482 Cr.P.C.) No. 921 of 2007 and Criminal Misc. Application (under Section 482 Cr.P.C.) No. 552 of 2009 are accordingly disposed of. Interim stay granted by this Court in both the cases in this behalf are vacated.

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5. The same Drugs Inspector Arvind Kumar Gupta lodged a first information report against the same complainant/applicant Shyam Lal Singhla on 28.12.2004, which was registered as case crime no. 819 of 2004, in respect of offence punishable under Section 420 IPC. The allegation against the accused-applicant, in a nutshell, is that the accused committed fraud by selling the drugs at an enhanced price. It was stated in the first information report that a sample of Ampirox Capsule was collected from CMSD Depot, which was under the control of CMO, Rudraprayag. The Ampirox Capsule was sent to Central Drugs Laboratory, Calcutta, who found that the capsules /drugs were sub-standard. When the informant-Drugs Inspector enquired from the hospital authorities, the said authorities revealed that M/S VIP Pharmaceuticals Private Limited placed an order dated 16.04.2001 before them showing that their firm was also included in the rate- contract. M/S VIP Pharmaceuticals Ltd. also obtained payment by showing supply vouchers. The prescribed rate of Ampirox Capsule was Rs. 25.84/- per ten capsules, but M/S VIP Pharmaceuticals Private Limited supplied the same at the rate of Rs. 28/- per ten capsules to the Government Hospital. The fraud was committed with the hospital authorities. Thus according to the first information report, M/S VIP Pharmaceuticals committed forgery on three counts. Firstly, wrong and forged rate contract list, was produced. Secondly, on the basis of forged rate contract list supply order was procured and thirdly, the capsule was sold at an enhanced rate. The first information report also indicated that the Drugs Control Department has already instituted a criminal complaint in the Court of Chief Judicial Magistrate, Rudraprayag in this behalf.

6. Learned counsel for the applicant drew the attention of this Court towards the letter sent by CMO, Rudraprayag on 02.03.2002 requesting them to supply the medicine at Rs. 28/- per ten capsules strip. The rate prescribed by the respondent was Rs. 27.78/- per ten capsules strip, as admitted in the counter affidavit. It is the contention of learned counsel for the applicant that no rate list was given by M/S VIP Pharmaceuticals to the hospital authorities. No such letter dated 16.04.2001 was presented on behalf of the applicant to the hospital authorities. After the investigation, a Final Report was submitted by the investigating agency, but it was only upon the direction of reinvestigation that the charge sheet was submitted in respect of offence punishable under Section 420 IPC and Section 3/7 of the Essential Commodities Act. Although, affidavit and counter affidavit were exchanged by the parties for or against the commission of the alleged crime, but a perusal of the paragraph 12 of the complaint filed by the Drugs Inspector in the Court of CJM, Rudraprayag clinches the issue in favour of the accused-applicant. Nobody should be vexed twice for the same cause. Paragraph 12 of the complaint is reproduced herein below for ready reference:

“That the manufacturer had not only manufactured and sold a misbranded and sub-standard drug to Govt. Hospital, but had supplied the same at a rate of Rs. 28 per ten capsules which is higher than the ceiling price of Rs. 25.84 per 10 caps fixed by NPPA vide notification no. 678 (E) dated 20.07.2000 and thus violated the provisions of Drugs Price Control Order 1995 read with 3/7 E.C. Act.”

7. Likewise, it was alleged in paragraph 14 of the complaint case filed in the Court of Chief Judicial Magistrate, Nainintal that the manufacturer and supplier had not only sold a misbranded and sub-standard drug to Govt. Hospital, but had supplied the same at a rate of Rs. 28 per 10 capsules which is higher than the ceiling price of RS. 25.84 per 10 capsules fixed by NPPA vide Notification no. 678(E) dated 20.07.2000 and thus violated the provisions of Drugs Price Control Order 1995 read with Section 3/7 of the Essential Commodities Act.

8. In the context of the complaint filed under Section 420 IPC, learned counsel for the applicant reiterated that the purchase committee sent the indent asking the applicant to supply Ampirox Capsule at the rate of Rs. 28/- per strip of ten capsules, and therefore, the applicant supplied the drugs at the same rate which was written on the letter.

9. The Honble Supreme Court has laid down certain principals in respect of the exercise of jurisdiction under Section 482 Cr.P.C. in Amit Kapoor vs. Ramesh Chander and another, (2013) 1 Supreme Court Cases (Cri) 986. One of the principle laid down is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. The offence punishable under Section 415 IPC will make out when the following ingredients are fulfilled :

“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain the property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation of property, is said to “cheat.”

10. It is the allegation against the accused applicant that he presented a fake ESIC rate contract and thereby the medical authorities, Rudraprayag gave him the supply order. Initially, an FR was submitted against the accused-applicant. Later on, on reinvestigation, charge sheet was submitted under Section 420 IPC along with Section 3/7 of the Essential Commodities Act. The accused-applicant has not been charge sheeted under Sections 465, 467, 471, 468 or 471 IPC. Forgery is different from cheating. Forgery is defined under Section 463 IPC. ‘Making a false document is defined under Section 464 IPC. ‘Cheating is defined under Section 415 IPC. ‘Forgery for the purpose of cheating is made punishable under Section 468 IPC. What is a ‘forged document is defined under Section 470 IPC.

11. Although, the subject matter of the first information report filed under Section 420 IPC and Section 3/7 of the Essential Commodities Act is also the subject matter of complained filed by the Drug Inspector, before the CJM, Rudraprayag as well as CJM, Naintial, yet it also appears, prima facie, that no offence under Section 415 IPC is made out against the accused-applicant. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied, if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere unless exercise of such power is absolutely essential to prevent patent miscarriage of justice. The process of the Court should not be permitted to be used for an oblique or ulterior motive.

12. Article 20 (2) of the Constitution of India states that, no person shall be prosecuted and punished for the same offence more than once. The charges in respect of the selling of the Ampirox Capsule at an enumerated rate were already pending adjudication before the CJM, Nainital and CJM, Rudraprayag, which complain has now been made over to CJM, Nainital Two complaints thus filed by the Drugs Inspector encompass everything in their ambit, which is alleged by the Drugs Inspector in his first information report under Section 420 IPC and Section 3/7 of the Essential Commodities Act. In other words, subject matter of first information report under Section 420 IPC was also the subject matter of adjudication pending before the CJM, Nainital before the FIR was lodged in respect of the same offences. It will therefore, be futile exercise to keep the charge sheet against the accused-applicant for the offence punishable under Section 420 IPC and Section 3/7 of the Essential Commodities Act pending for adjudication, when two complaint cases are already pending against the accused-applicant in respect of the same dispute. The subject matter of the controversy is the same, addition of Section 420 IPC notwithstanding. This Court should therefore should step in and interfere in exercise of its jurisdiction under Section 482 Cr.P.C. Consequently, the application under Section 482 Cr.P.C. is allowed. Proceedings of Criminal Case No. 748 of 2008, under Section 420 and Section 3/7 of the Essential Commodities Act, pending in the Court of learned CJM, Rudraprayag are hereby quashed.

13. Learned CJM, Nainital shall not, however, be influenced by the above observations while deciding the criminal complaint cases filed by the Drug Inspector, Nainital. Learned Chief Judicial Magistrate is at liberty to apply his mind as to the applicability of offences made out against the accused-applicant while deciding the criminal complaint cases on merits.