High Court of Punjab and HaryanaCRM-M/58294/2023allowed

Vinod Kumar Dhawan v. Union Of India

2024-11-08Mr. Justice Sandeep Moudgil13 pages

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Present:

Mr. HPS Sandhu, Advocate for the petitioner.

Ms. Promila Nain, Sr. Panel Counsel and Ms. Harveen Mehta, Advocate for the respondent UOI.

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The jurisdiction of this Court has been invoked under Section 482 Cr.P.C. seeking quashing of Criminal Complaint No.COMA titled as "Union of India vs. M/s Edwin Biotech" under Section 18(a)(i), 18(a)(vi), 18(c) r/w section 16 and 27(d) of the Drugs and Cosmetic Act, 1940( "in short referred to as the Act of 1940") pending before the Chief Judicial Magistrate, Mohali (Annexure P 1), the summoning order dated 02.02.2022 (Annexure P 6), order dated 23.11.2022 (Annexure P

8) vide which application for amendment of the complaint has been allowed and further for quashing of Amended complainant dated 19.09.2022 (Annexure P

9) and order dated 07.08.2023 where by Notice of Acquisition has been

issued/ Charges have been farmed against the petitioner (Annexure P 10) and all subsequent proceedings arising therefrom.

At the relevant time, the petitioner, Mr. Vinod Kumar Dhawan, was serving as the Approved Manufacturing Chemist for M/s Edwin Labs, a duly registered company with its Registered Office and Manufacturing unit located at Plot No. 517, Industrial Area, Phase 9, Mohali, Punjab. M/s Edwin Labs, established on 26th December 2013, is a diversified pharmaceutical company focused on research and development, known for its commitment to quality and maintaining a strong reputation in the industry. The present case arises from a complaint filed by the Respondent, Sh. Fahim Khan, Drug Inspector, C.D.S.C.O, Sub Zone, Baddi, Himachal Pradesh (hereinafter referred to as "the complainant"), alleging that a product named

(ENZYAL) Batch No.

DEL 3864, with a Manufacturing Date of 09/2016 and an Expiry Date of 08/2017 (200 ml each), manufactured by M/s Edwin Labs, was allegedly seized for sampling on 26.09.2016. According to the complainant's account, on 26.09.2016, the then Drug Inspector, Sh. V. Kaviyarasan, visited the premises of M/s Edwin Labs, where, in the presence of the petitioner, Mr. Vinod Kumar Dhawan, samples of (ENZYAL), Batch No.

DEL 3864, were collected. The sample was divided into three portions of 200 gm each, and the petitioner, Mr. Dhawan, signed the necessary sample forms. Form No. 17, which was prepared on the spot and signed by the petitioner, documented the sampling process. One portion of the sealed sample was handed over to the petitioner, in compliance with Section 23 of

the Act of 1940. Following the sampling, one sealed sample along with signed Form No. 18 was sent to the Government Analyst at the Regional Drug Testing Laboratory, Sector 39, Chandigarh, on 27.09.2016, of which the report came on the 13.02.2017. The complaint further claims that show cause notices were subsequently issued to the manufacturing company. In response to these notices and at the request of an authorized representative of M/s Edwin Labs, the sample was sent for retesting to the Central Drug Laboratory in Kolkata, pursuant to Section 25(3) Act of 1940. The report from the Central Drug Laboratory, Kolkata, dated 12.09.2017, confirmed that the sample was "NOT OF STANDARD QUALITY."Hence present complaint.

Learned counsel for the petitioner contends that the impugned summoning order dated 02.02.2022 (Annexure P

6) passed by the Trial Court, is flawed due to the following reason as examination of the impugned complaints, including the amended version, reveals a complete lack of merit against the petitioner. It is asserted that no specific allegations have been made against the petitioner, and that the petitioner's name has been included in the complaint in a purely mechanical and erroneous manner. Furthermore, the documents on record clearly demonstrate that the allegations are groundless, and the complainant has failed to establish any criminal liability or offence committed by the petitioner.

Secondly, the Learned Trial Court committed a significant error by summoning the petitioner without addressing the delay of over four years

in filing the complaint. The court issued a summons to the petitioner for trial without the complainant seeking condonation for the delay. It is crucial to note that the proceedings originating from Complaint No. 4 of 2022 are time barred. In issuing the impugned order on 02.02.2022 (Annexure P 6), the court failed to consider whether the complaint was barred by the limitation period under Section 468(2)(c) of the Code of Criminal Procedure (Cr.P.C.). The complainant had a three year limitation period to initiate the prosecution, and the present complaint, which alleges offences under various sections of Act of 1940, should have been filed no later than 12.02.2020. The court overlooked the fact that the limitation period had already expired, thus rendering the complaint invalid.

The petitioner's contentions are supported by the Hon'ble Supreme Court's observations in

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In Paragraph 13, the Court held that, under Section 469 of the Cr.P.C., the limitation period begins from the date of the offence, not from the date of receipt of the report from the Central Insecticide Testing Laboratory. The report from the Insecticide Testing Laboratory in Ludhiana, received on 14.03.2011, marked the commencement of the limitation period, as it revealed the offence of misrepresentation regarding the active ingredient's percentage. The subsequent report from the Central Laboratory, received on 09.12.2011, could not reset the limitation period.

It has been further contended that the complaint fails to specify how the petitioner, at the time of the alleged offence, was responsible for or in charge of the operations of . The complainant's

allegations do not constitute an offence and do not meet the statutory requirements of Act of 1940, or its associated Rules in relation to the Petitioner's involvement in the purported violation. 7.

It is further submitted that the prosecution's complaint was filed against

and its partners, which is entirely unrelated to the alleged drug sample of

!", which was manufactured by . These two firms are distinct entities, operating at different locations, and have no connection to one another. The petitioner was summoned as a partner of

in the order dated 02.02.2022 (Annexure P 6), as indicated by the memo of parties attached to the complaint. However, after the summons were issued, the complainant, in an attempt to address gaps in the complaint, filed an application for amendment on 19.09.2022 (Annexure P 7), which was wrongfully allowed by the trial court on 23.11.2022 (Annexure P 8). The trial court failed to consider that the Cr.P.C. does not permit amendments to criminal complaints, especially after cognizance has been taken, as established by settled law. This argument is supported by the Supreme Court's judgment in (

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Per contra, learned counsel appearing on behalf of the respondent/Union of India would argue that petitioner has rightly been summoned to face trial under the Act of 1940 and had the petitioners been truly effected by their summoning they could have filed appeal before the

( trial court for their wrong summoning and rather no accused person preferred the appeal and kept on waiting for the framing of the charges. 9.

It is further asserted on behalf of the respondent UOI that that pursuant to the Supreme Court orders dated 10.01.2022, in various miscellaneous applications and a # writ petition related to the COVID 19 pandemic, a relaxation period from 15.03.2020 to 28.02.2022, was granted. Excluding this period, the complaint was found to be within the limitation period, leading the Learned Chief Judicial Magistrate, Mohali, to take cognizance of the matter.

10.

Heard learned counsel for the parties.

11. The issue that arises in the present case is whether Criminal Complaint No. 4 of 2022 falls under the category specified in Section 468(2) (c) of the Cr.P.C, 1973, and consequently, whether the learned Trial Court was prohibited from taking cognizance of the complaint. Additionally, it needs to be determined whether any order passed in relation to this complaint was made without jurisdiction.

12. To examine as to whether the complaint has been filed within the period of limitation, Section 468(2)(c) of Cr.P.C. needs to be looked, which reads as under:

(2)The period of limitation shall be - (a)six months, if the offence is punishable with fine only; (b)one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c)three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

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Before proceeding further it would be apposite to have a glance of the relevant section which talks about the question of limitation, the quantum of punishment which has to be borne in mind, which is prescribed to be two years for an offence if committed under Section 27(d) of the Act of 1940, reads as under:

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Section 468 of the Cr.P.C., 1973 imposes a bar on the Court from taking cognizance of an offence once the limitation period has expired, as specified under Section 468(2). Now, as per Section 468(2) Cr.P.C., 1973 the period of limitation for any offence which is punishable with an imprisonment term exceeding one year, but not exceeding three years, is three years. Therefore, if a complaint is filed after three years of the alleged

offences as per section 468(2)(c) Cr.P.C., 1973 taking place, then a Court will be barred from taking cognizance of the same and any Order that is rendered pursuant to this will be without jurisdiction. 15.

It was laid down by the Hon'ble Supreme Court in "

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16. Adverting to the merits of the case in hand, a sample of the drug Fungal Diastase with Pepsin Syrup (ENZYAL), Batch No. DEL 3864, manufactured in September 2016 and with an expiry date of August 2017 (200 ml), was collected by the Drug Inspector on 27.09.2016. The sample was subsequently sent for analysis in accordance with Section 23 of the 1940 Act. The analysis report, dated 13.02.2017, was received from the

laboratory in Sector 39, Chandigarh, declaring the drug sample to be of "NON STANDARD QUALITY" (Annexure P 3). In response to this report, the petitioner, aggrieved by the findings, requested a retest by the Central Drug Laboratory in Kolkata, as permitted under Section 25(3) of the 1940 Act. Following this request, a fresh report was issued on 12.09.2017 by the Director of the Central Drug Laboratory in Kolkata, which again declared the sample to be of "NON STANDARD QUALITY."Admittedly after receiving the government analyst report on 13.02.2017, the complaint was filed after a lapse of 4 years, on 14.01.2022. 17.

In the present case, the limitation period would be three years, as the complaint was filed under Section 18(a)(i), 18(a)(vi), 18(c) read with Section 16 and 27(d) of the 1940 Act. These provisions impose penalties for the manufacture, sale, etc., in contravention of Chapter IV of the Act, and provide for imprisonment for a term not less than one year, which may extend to two years. Therefore, this punishment squarely falls within the bracket of one to two years as has been envisaged under section 468(2)(c) of the Cr.P.C., 1973.

18.

As far as contention of the respondent regarding the relaxation of limitation period during COVID is concerned the same also does not hold good as the Apex court has granted relaxation for the period ranging from 15.03.2020 to 28.02.2022, however the government analyst report was received way back on 13.02.217.(1st report) and after retesting also 2nd report was received on 12.09.2017.

19.

Considering the law of limitation and the material presented before this Court, it is the Court's view that the complaint should have been

filed within three years from the date the report was received by the Drug Inspector, i.e.13.02.2017(1st report). Therefore, the complaint should have been filed on or before 12.02.2020. Since the limitation period had already expired, and Criminal Complaint No. 04 of 2022 was filed after 4 years of receiving of the complaint i.e on 14.01.2022, the learned Trial Court could not have taken cognizance of the complaint. And moreover the court below has committed grave error by summoning the petitioner as delay was also not condoned by the trial court below while admitting the complaint. 1 20.

For the aforesaid reasons, this petition is allowed and Criminal Complaint No. COMA 2022 (Annexure P

1) and all consequential proceedings arising therefrom including summoning order dated 02.02.2022 as well as order dated 23.11.2022 (Annexure P

8) vide which application for amendment of the complaint has been allowed and Amended complainant dated 19.09.2022 (Annexure P

9) and order dated 07.08.2023 where by Notice of Acquisition has been issued/ Charges have been farmed against the petitioner (Annexure P

10) and all subsequent proceedings arising therefrom are quashed qua the petitioner.

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