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M/s Brawn Laboratories Ltd. (Accused No.3), through its Authorized Representative Raja NandJha, Haryana v/s State of Jharkhand, through the Drug Inspector, Ranchi

    Cr. M.P. No. 2259 of 2021

    Decided On, 09 February 2022

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE SANJAY KUMAR DWIVEDI

    For the Petitioner: Sushant Mahapatra, Garima Gupta, Aruni Poddar, Ashish Kumar Verma, Shivam Kumar, Priti Kumari, Advocates. For the Opposite Party: Ashwini Bhushan, A.C. To Sr. S.C.



Judgment Text

1. Heard Mr. Sushant Mahapatra assisted by Ms. Garima Gupta, Mr. Aruni Poddar, Mr. Ashish Kumar Verma, Mr. Shivam Kumar and Mrs. Priti Kumari, learned counsel for the petitioner and Mr. Ashwini Bhushan, learned counsel for the opposite party-State.

2. This petition has been taken through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. This petition has been filed for quashing the order taking cognizance and summoning order dated 30.09.2015 passed by the learned Additional Chief Judicial Magistrate, Ranchi against the petitioner in connection with Drugs and Cosmetics Case No.17 of 2015, filed by the opposite party under Section 27(d) of the Drugs and Cosmetics Act, 1940, pending in the court of the learned Additional Judicial Commissioner-II at Ranchi.

4. The case was instituted stating therein that on 23.12.2004, the then Drug Inspector, Ranchi Shri Anjani Kumar took a sample of medicine 'Redimol Tablets' under B. No. RPB3L021, Mfg. Date 12/03, Expiry date 11/06 manufactured by M/s. Brown Laboratories, 13, New Industrial Township, Faridabad-121001 for testing from M/s. Durga Medical Store, Bus Stand, Moori, Ranchi and issued Form-17 dated 23.12.2004 to them. The drug was declared as not of standard quality. The report by the Government Analyst mentioned that “The sample does not conform to I.P. with respect to Dissolution.

5. Mr. Sushant Mahapatra, learned counsel appearing for the petitioner submits that the drug was declared as not of standard quality by the Government Analyst, Central Drug Laboratories, Kolkata dated 25.08.2006. He further submits that the report was submitted in the year 2006 and the letter was received by the petitioner on 10.07.2007 and the complaint was filed on 12.01.2015 i.e. after lapse of 9 years from the submission of the report. He further submits that the cognizance has been taken under Section 27(d) of the Drugs and Cosmetics Act, 1940. He also submits that in terms of Section 468(2)(c) of Cr.P.C., such complaint could have been filed within a period of three years from the date of cause of action arose. He further submits that the complaint case was filed after a lapse of nine years which is wholly impermissible in law. Section 468 Cr.P.C. is a mandatory statutory provision, therefore, the complaint filed was time barred and the order taking cognizance dated 30.09.2015 is bad in law. Learned counsel for the petitioner relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Sarah Mathew versus Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian And Others reported in (2014) 2 SCC 62 as well as the order passed by a coordinate Bench of this Court in Cr.M.P. No.104 of 2015, dated 09.08.2017.

6. Mr. Ashwini Bhushan, learned counsel for the opposite party-State on the other hand has opposed the prayer made by the petitioner and submits that complaint petition clearly reveal the fact that the Drug which was manufactured by the petitioner’s company was not in conformation with the standards required and therefore criminal prosecution was lodged against the petitioner. He further submits that the test report was made available to the petitioner. He tried to demolish the arguments of the learned counsel for the petitioner by way of placing Annexure-15 of the petition, which is a letter written by the Drug Inspector, Ranchi stating therein that the complaint case was filed after receiving direction from the Joint Director (Drugs), State Drugs Control Directorate. He further submits that vide reasoned order dated 30.09.2015, the learned trial court has condoned the delay.

7. It is an admitted fact as per the complaint petition itself that the sample of medicine manufactured by the petitioner’s company was taken on 23.12.2004. The report of the Government Analyst, Central Drug Laboratories, Kolkata was dated 25.08.2006 which declared the medicine to be sub-standard. The complaint case was instituted on 12.01.2015 and vide order dated 30.09.2015, the cognizance was taken by the learned Additional Chief Judicial Magistrate, Ranchi under Section 27(d) of the Drugs and Cosmetics Act. It would thus appear that more than 9 years have passed from the date of submission of the report of the sample till the date of taking of cognizance or for that matter till the date of filing of the complaint. A feeble attempt has been made by the prosecution with respect to the delay in instituting the complaint case but such explanation seems to be totally unreasonable and unsatisfactory. Section 473 Cr.P.C. clearly speaks that the court may take the cognizance beyond the period of limitation if reasonable explanation is there. Annexure-15 of the petition is only the letter, which has been written by the Drug Inspector, Ranchi to the learned court stating therein that after receiving direction from the higher official the complaint case has been filed. The maximum punishment which can be imposed under Section 27(d) of the Act is of two years and the period of limitation as prescribed in Section 468 of the Cr.P.C. is three years and the complaint case having been instituted beyond the period of three years the prosecution of the petitioner cannot be allowed to continue. The period of limitation is to be computed from the date the alleged occurrence is said to have taken place till the date the complaint is instituted and even in the said circumstances the institution of the case was almost more than 9 years from the date the Act was complained of. In the case of Sarah Mathew versus Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian And Others reported in (2014) 2 SCC 62, it was held as follows:

“51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC.”

8. Therefore considering the totality o

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f the circumstances enumerated above it can be concluded that the complaint was preferred way beyond the period of limitation prescribed and in such circumstances, the learned Additional Chief Judicial Magistrate, Ranchi was precluded from taking cognizance for the act complained of that too when the delay has not been disclosed in terms of Section 473 Cr.P.C. 9. In view of the above facts, there being merit in this petition, the same is allowed and the impugned order dated 30.09.2015 passed by the learned Additional Chief Judicial Magistrate, Ranchi in connection with Drugs and Cosmetics Case No.17 of 2015 is hereby, quashed and set aside. 10. Accordingly, this petition stands allowed and disposed of.
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