M/S Akums Drugs And Pharmaceuticals Ltd v. C. Arunachalam And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.30 OF 2023 M/s. Akums Drugs & Pharmaceuticals Ltd ...Applicant

Versus

C. Arunachalam & Ors

...Respondents

------------ Mr. Sahil D. Salvi a/w Sagar & Narendra L. Kalpoth, Advocate for Applicant.

Mr. S.K. Halwasia, Advocate for Respondent Nos.1 & 2. Mr. Arfan Sait, APP for State/Respondent No.3. ------------ CORAM : SARANG V. KOTWAL, J.

DATE : 3rd OCTOBER 2023 PC :

1.

The Applicant-company is challenging the order passed by the Metropolitan Magistrate, 15th Court, Mazgaon at Sewree, Mumbai in Case No.129/SW/2015 issuing process under Section 18(a)(i) r/w Section 16 and 34 punishable under Section 27(d) of Drugs and Cosmetics Act, 1940 (hereinafter referred to as the "said Act"). The complaint was filed by the authorized Drug Inspector. The samples were drawn from the medical store, St. Georges Hospital, Mumbai on 28th January 2013 in respect of the drug Digitally signed by ASHWINI JANARDAN VALLAKATI Date:

2023.10.05 02:23:14 +0530 products viz. Amoxycillin and Potassium Clavulanate Oral ASHWINI JANARDAN VALLAKATI Ashwini V

Suspension IP. According to the Complainant, on test carried out by the Central Laboratory, it was found that the samples did not conform to the standards and, therefore, the complaint was lodged.

2.

Learned Counsel for the Applicant made various submissions on merits of the matter and in particular on his right being defeated under section 25(3) and 25(4) of the said Act. He also submitted that the Applicant company has its Registered Office and Manufacturing Company outside the jurisdiction of the learned Magistrate. It is situated at Ranipur, Haridwar, Uttarakhand. He submitted that, therefore, the inquiry under Section 202 of Cr.P.C. was mandatory. In this case, it was not carried out.

3.

As far as the merits of the matter is concerned, at this stage, it is not necessary to consider that issue and also the issue of violation of rights under Section 25(3) and 25(4) of the said Act. It is quite clear that the inquiry under Section 202 of Cr.P.C. was necessary.

4.

Learned Counsel appearing for the Respondent Nos.1 and 2 agrees with these submissions of the learned Counsel for the Applicant that such inquiry under Section 202 of Cr.P.C. was mandatory. In view of this position, it is necessary to set aside the impugned order and remand the matter back before the learned Magistrate for taking further steps in accordance with law; and in particular in conformity with Section 202 of Cr.P.C. 5.

Hence, the following order:

O R D E R

i) The impugned order passed by the Metropolitan Magistrate, 15th Court, Mazgaon at Sewree, Mumbai issuing process against the Applicant in Case No.129/SW/2015, is set aside.

ii) The case is remanded back before the learned Magistrate for fresh consideration and for taking steps under Section 202 of Cr.P.C. and to take further steps in accordance with law, if necessary.

iii) It is made clear that this Court has not expressed any opinion on any of the other submissions made by the learned Counsel for the Applicant.

iv) With these observations, the Application is disposed of.

(SARANG V. KOTWAL, J.)