w w w . L a w y e r S e r v i c e s . i n



Vikram Kumar B Bhojani v/s State at Instance of Drugs Inspector, Represented by State Public Prosecutor

    Criminal Petition No. 101149 of 2018

    Decided On, 08 January 2019

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE H.P. SANDESH

    For the Petitioner: G. Desu Reddy, Advocate. For the Respondent: Praveen K. Uppar, HCGP.



Judgment Text

1. Heard the petitioner's counsel and the learned HCGP appearing for the respondent-State.

2. The petitioner who has been arrayed as accused No.3 in private complaint which is numbered as C.C.No.2075/2008 on the file of the JMFC, Court-I, Hubballi has invoked Section 482 of Cr.P.C. challenging the order dated 02.05.2017 in C.C.No.2075/2008 and also rejection of the revision petition filed by the petitioner in Crl.Rev.Pet.No.40/2017 on the file of the V Addl. District and Sessions Judge, Dharwad and prayed for quashing the entire proceedings against the petitioner/accused No.3 for the offences punishable under Section 18(a)(i) read with Section 17(B)(e) of the Drugs and Cosmetics Act, 1940 ('Act', for short) and grant such other relief as deems fit in the circumstances of the case.

3. The factual matrix of the case is that a complaint has been filed by the State at the instance of the Drugs Inspector against this petitioner and also against three other petitioners invoking Section 200 of Cr.P.C. making an allegation against the petitioner that he has purchased the drugs from accused No.4 and in turn he sold the same in favour of accused No.1 and the drug which was seized was the spurious drug under Section 17(B) of the Act.

4. The contention of the petitioner is that the said spurious product of manufacturer of whom it is not truly a product and allegation is made in the complaint that he has purchased the stock for sale and sold the above mentioned spurious drug to accused No.1 and thereby he has committed an offence under Section 18(a)(i) read with Section 17(B)(e) of the Act which is punishable under Section 27 of the Act. The petitioner has filed an application before the concerned Magistrate invoking Section 245 of Cr.P.C. to discharge him from the offences as alleged against him on the ground that he is a licence holder and he has purchased the same from the licence holder and after purchasing the same he sold the same to accused No.1, who is also a licence holder and he has not committed any of the offences as alleged in the complaint. The complainant has established the fact that the said drug suspected spurious and no manufacturing records, labels records, assessment records and master pharma records, etc., have been collected and there is no proper sanction order and the sanction order obtained from the Sanctioning Authority is bad in law. There is no prima facie case against the said accused and there is no ground to frame charge against him. The application filed by the petitioner is rejected and being aggrieved by the rejection order dated 02.05.2017 in C.C.No.2075/2008, the petitioner has filed a revision petition before the Sessions Court and the same also rejected and hence has approached this Court by invoking Section 482 of Cr.P.C.

5. The main contention of the petitioner before this Court is that the Court below failed to take note of the contention that accused No.3 is a distributor and having valid licence under Form No.20-B and 21-B under the provisions of the Act to deal with drugs by way of a wholesale distributor and the Court below erred in not considering the fact that he has purchased the subject drug from accused No.4 who is also having a valid licence and in turn he has sold the same in favour of accused No.1. The Court below failed to take note of Section 19(3) of the Act which says that a person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of Section 18 if he proves, that he acquired the drug or cosmetic from a duly licenced manufacturer, distributor or dealer thereof and that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section and that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquired it.

6. The counsel in support of his argument has relied upon a judgment of the Bombay High Court in the case of Pannalal Sunderlal Choksi and Others Vs. State of Maharashtra and Another, 2001 Drugs Cases 7 and brought to my notice para No.27, wherein the Bombay High Court referred the judgment of M/s. Pepsi Foods Limited Vs. Special Judicial Commissioner, (1997) 2 FAC 107, wherein the Supreme Court has thoroughly dealt with this issue. The Supreme Court has observed that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring two witnesses to support his allegations in the complaint to have the criminal law set to into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Further the Bombay High Court in para No.28 observed that no doubt the Magistrate can discharge the accused at any stage of the trial, if he considers the charge to be groundless but, that does not mean that accused cannot approach High Court under Section 482 of the Code or Article 227 of the Constitution to have proceedings quashed against him when the complaint does not make out any case against him and still he must undergo the agony of criminal trial.

7. The counsel has also relied upon the judgment of this Court reported in the case of M/s. Sanjeevini Medical and General Stores and Another Vs. State of Karnataka,2011 2 Drugs Cases(DC) 18. The counsel brought to my notice para No.13 of this judgment, wherein it is held that as far as the licence aspect is concerned, the learned counsel for the petitioners has drawn my attention to the documents produced to show that the petitioners possessed the required licence, which fact is also admitted in the very complaint itself. Yet, the trial Court, for the reasons best known to it, has held that no licence was possessed by the petitioners. This inference is factually incorrect and it is also against the very provision of law contained in Section 19(3) of the Act. The petitioner's counsel also relied upon another judgment of Punjab and Haryana High Court in the case of Madan Lal Vs. State of Punjab and Others reported in,1981 Drugs Cases 31 regarding Sections 18(a)(i)(a)(ii), 19 and 27, drugs purchased under a warranty from a licenced dealer and requirements satisfied under the Act and conviction of the petitioner and it shall be in a way an abuse of process of law.

8. The counsel has also relied upon a judgment of the Punjab and Haryana High Court reported in the case of Radhey Sham Vs. State of Punjab,2015 1 Drugs Cases(DC) 306. The Punjab and Haryana High Court held that proceedings against the petitioner were liable to be dropped in view of Section 19(3) of the Act as the petitioner has purchased the drug in question from a licence dealer/distributor, the petitioner is entitled to claim protection under Section 19(3) of the Act. The counsel has also relied upon a judgment of Allahabad High Court in the case of M/s. Sanjay Medical Stores, Allahabad Vs. State of U.P. in respect of Section 19(3), wherein the High Court held that the benefit of colloidal Calcium, a drug purchased by the applicant from the licenced distributor for selling the same under a written warranty found to be substandard by the Government Analyst, applicant proved that he purchased the drug from a licenced distributor, that he did not know and could not with reasonable diligence know that the drug in question in any way contravened the provisions of the Act and that he had properly stored those capsules and he is entitled to the benefit of Section 19(3) of the Act.

9. Per contra, the learned HCGP in his argument contends that the Hon'ble Apex Court in the judgment reported in the case of State of Andhra Pradesh Vs. Venu Veterinary Division and Another, (2009) 16 SCC 282 in held that regarding Sections 19(1), (3)(b), 18(b) and (c) and 17-B, need to join the manufacturer as a party for prosecuting a dealer for prosecuting a dealer of drug or cosmetic for contravention of provisions of the Act or Rules made thereunder manufacturer thereof need not be made a co-accused. The Hon'ble Apex Court held in this judgment that there is no prohibition in any of the provisions of the Act that a dealer cannot be prosecuted for sale of spurious drug or drug of below standard quality without the manufacturer being made a co-accused. Sub-section (1) of Section 19 denies defence plea to the accused that "he was ignorant of the nature, substance and quality of the drug or the circumstances of its manufacture". The only defence available to him, as set out in clause (b) of Sub-section (3), is that "he did not know and could not, with reasonable diligence have ascertained, that the drug or cosmetic in any way contravened the provisions of the Act". This defence plea, if at all available to the accused would be considered in accordance with Sub-section (1) read with Sub-section (3) of Section 19 of the Act only after the prosecution has led its evidence to prove its case.

10. After having heard the arguments of the petitioner's counsel and the learned HCGP, the point that arises for my consideration is whether this Court can exercise powers under Section 482 of Cr.P.C. to quash the proceedings against the petitioner herein and also to set aside the order passed by the Magistrate in rejecting the application filed under Section 245 of Cr.P.C.

11. Before adverting to the principles laid down in the judgments referred supra by the respective counsels, it is appropriate to mention the complaint averments made in the complaint which has been annexed to this petition. On perusal of the complaint, the Drugs Inspector has filed the complaint under Section 200 of Cr.P.C. making an allegation against the petitioner that he is the proprietor and competent person of the firm running under the name and style of M/s. Deepak International Pharmaceutical Distributor, No.12, Mount Joy Road, Bengaluru possessing a valid drug licence in Form No.20B bearing No.KA/BNG/II/20B/1295 and in Form No.21B bearing No.KA/BNG/II/21B/1284 granted on 26.10.2004 valid up to 25.10.2009 to deal in drugs by way of wholesale and Sri.VikramKumar Bhonaja proprietor and competent person is responsible for the day-today conduct of business of the said firm and thereby offenses described. The case of the complainant is also that this petitioner has purchased the drug from accused No.4 and in turn he sold the same in favour of accused No.1 and the same was seized and subjected to confirmation whether the same is spurious drug or not and in this regard a reference is made in the complaint that the following drug which is sampled/seized from the premises of the firm of accused No.1 are confirmed as of spurious drug under Section 17(B)(e) of the Act as purports to be product of manufacturer of whom it is not truly a product and hence a specific allegation has been made in the complaint that he has purchased the stock for sale and sold the above mentioned spurious drug to accused No.1 and thereby committed offences punishable under Section 18(a) read with Section 17(B) of the Act which is punishable under Section 27(c) of the Act.

12. The petitioner has made an application before the Magistrate under Section 245 of Cr.P.C. and raised the ground that he is not a manufacturer and he has purchased the same from the licence holder i.e. accused No.4 and he sold the same in favour of accused No.1 and when he is not the manufacturer he cannot be prosecuted. The Court below considered the grounds urged by the petitioner referring Section 19(3) of the Act and while rejecting the application formed an opinion that there is no sufficient evidence to believe that accused Nos.1 to 3 did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that Section. Moreover, there are no warranty cards with accused Nos.1 to 3 to show that they are the innocents, did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that Section. Further, the Court below observed that it is also true that the manufacturer not secured and made as accused in the case which is the matter, the Court ought to decide at the end of the trial. The accused Nos.1 to 3 may also innocents, did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that Section, but it requires further proof and complete trial and without complete trial at this stage, the Court not satisfied in discharging the accused person from the case. The case definitely needs full fledged trial to know the facts and hence dismissed the application.

13. It is important to note that there is no dispute with regard to the fact that the petitioner is not a manufacturer and factual aspects disclose that he has purchased the same from the licence holder as contended by the petitioner's counsel and the judgments referred by the petitioner's counsel also is in connection with Section 19(3) of the Act. The judgment of the Hon'ble Apex Court in the case of State of Andhra Pradesh (supra) in respect of the offences which have been alleged against the petitioner and also with regard to joining of the manufacturer as a party for prosecuting and further held that there is no any provision in any of the provisions of the Act that a dealer cannot be prosecuted for sale of spurious drug or drug of below standard quality without the manufacturer being made a co-accused. Further observed with regard to Section 19 also with regard to the plea he was ignorant of the nature, substance and quality of the drug or the circumstances of its manufacture. The only defence available to him, as set out in clause (b) of Sub-section (3) is that he did not know and could not, with reasonable diligence have ascertained, that the drug or cosmetic in any way contravened the provisions of the Act. This defence plea, if at all available to the accused would be considered in accordance with Sub-section (1) read with Sub-section (3) of Section 19 of the Act only after the prosecution has led its evidence to prove its case.

14. For having taken note of the principles laid down in the judgments referred supra, it is clear that the petitioner can raise his defence before the trial Court at the time of conducting trial. Section 482 of Cr.P.C. is also clear that the same is not a rule and the same is an exception and only in order to prevent injustice to the party, the Court can exercise powers under Section 482 of Cr.P.C. In the case on hand, the drug which has been sold by this petitioner in favour of accused No.1 has been seized and the same is also subjected to examination. In the complaint it is specifically mentioned that drug which has been sold by this petitioner is a spurious drug and he contravened the specific provision and hence whether he has having knowledge or not also has to be ascertained only during the course of the trial. The trial Court also while dismissing the application has assigned the reasons and applied its mind with regard to the dismissing of the application. The Hon'ble Apex Court in the judgment reported in the case of Sanghi Brothers (Indore) Private Limited Vs. Sanjay Choudhary and Others, (2008) 10 SCC 681 has specifically held that strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for framing of charge. At that stage, there is no necessity of formulating opinion about the prospect of conviction. Charges framed for the offences has to be taken note of and inference has to be drawn on the ground that charges were sustainable also was not warranted. It is settled law that while discharging of accused when it is warranted, the Hon'ble Apex Court in the judgment reported in the case of P.Vijayan Vs. State of Kerala and Another, (2010) 2 SCC 398 in respect of dealing with cases under Section 227 of Cr.P.C. with regard to discharge is concerned specifically held that, if two views are possible and one of them gives raise to suspicion only, as distinguished from grave Suspicion as to the guilt of the accused, the trial Judge will be empowered to discharge the accused at this stage the trial Judge is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" in Section 227 of Cr.P.C. clearly show that the Judge is not a mere post officer to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or enter into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

15. The Hon'ble Apex Court in the judgment reported in the case of Amit Kapoor Vs. Ramesh Chander and Another, (2012) 9 SCC 460 regarding framing of charge is concerned held that presumption that accused has committed offence under Section 228 of Cr.P.C. nature and scope of, and when arises held that Court after considering 'record of case', documents submitted therewith, and hearing parties shall frame charge if there are no grounds for presumption that accused has committed offence, the said presumption is not presumption of law as such and satisfaction of court in relation to existence of constituents of offence and facts leading to that offence is sine qua non for exercise of such jurisdiction, Court at Section 228 of Cr.P.C. stage is not concerned with proof but merely strong suspicion that accused has committed offence, final test of guilt is not to be applied at stage of framing of charge.

16. For having considered the principles laid down in the judgments of the Hon'ble Apex Court relied by both the learned HCGP and the petitioner's counsel and also the other judgments which have been referred by this Court while considering the case on hand before this Court and also taking note of the fact that the complaint filed by the complainant has specific allegation and also the seized drug was subjected to examination and found that the said drug is spurious drug which was seized at the instance of accused No.1 which was sold by this petitioner, it is important to note that there is no dispute with regard to the fact that the evidence has been recorded by the trial Court before hearing with regard to framing charge and considered the evidence and only the question has to be looked into while exercising powers under Section 482 of Cr.P.C. whether the trial Judge has applied its judicial mind or not for having taken note of the reasons assigne

Please Login To View The Full Judgment!

d while rejecting the application filed under Section 245 of Cr.P.C. and it has come to the conclusion with regard to Section 19(1)(a) and (b) whether he has got the knowledge or not and whether he has ascertained whether it is spurious drug or not and full fledged trial is required. 17. When such being the circumstances and reasons have been assigned by the Court below, I do not find any reasons to interfere with the order of the Court below to quash the proceedings as contended by the petitioner and at the time of considering the material and also considering the case, the Court cannot sit as an Appellate Authority at the time of considering and framing charge and considering the defence of the accused and only to see the prima facie material available before the Court in order to proceed to frame charge and also at the same time the Court also to take care of whether it amounts to injustice if the trial is continued against the petitioner and having considered the factual aspects of the case and also seizure of the drug from accused No.1 which has been sold by this petitioner to accused No.1 and main contention that he was having a licence and he had purchased the same from accused No.4 that he was also having licence and sold the same in favour of licence holder is not the question at the time of considering the proceedings against the petitioner and whether it is spurious drug or not also has to be considered and whether any violation in respect of proviso of the Act has to be considered only after trial and hence, I do not find any merit in the petition and comes to a conclusion that the trial Judge has exceeded his power and while rejecting the application the trial Judge has assigned reasons as to why it requires trial and hence, I am of the opinion that it is not a fit case to exercise powers under Section 482 of Cr.P.C. 18. In view of the discussions made above, I proceed to pass the following: ORDER The petition is dismissed. The observations made by this Court while passing this order should not influence the trial Court.
O R