Appeal
Appeal against the final order of High Court
2. The present appeal assails the Final Judgment and Order dated 14.07.2022 passed in Crl. M.C. No.2802 of 2012 (hereinafter referred to as the ‘Impugned Order’) passed by a learned Single Judge of the High Court of Kerala at Ernakulam (hereinafter referred to as the ‘High Court’).
Factual matrix
7. The core allegation as per the Complaint Case was that there was an alleged discrepancy in the label on the carton concerned vis-à-vis the label on the top of the vial of the drug manufactured and sold by the Respondents. To be specific, the carton was labelled as ‘Easy five, Pentavalent vaccine B. No.:PO124 SBPC, Mfg. date: 14/August/2004, Exp.: 13/August/2006, manufactured by: Panacea Biotech Ltd., A 241 Okhla, Industrial Area-1, New Delhi – 110020, India. Retail price not to exceed Rs.550/- LT extra, Manufacturing Licence No:1259’ (sic). But, allegedly, on the seal cap of the vial, it was labelled as ‘pentavalent vaccine Easy Five, B.No: P0124 SBPC, Mfg. Date: 14/Aug,2004, Exp. date: 13-Aug 2006’ (sic). Whereas, on the vial it was labelled as ‘Tetravalent Vaccine Easy Four. B.No: TO124SBC, Mfg. date: 29/August/2004, Exp. date: 28/August/2006. Manufactured by Panacea Biotec Ltd., A-241, Okhla, Industrial Area-1, New Delhi-110020, India. Retail price not to exceed Rs.500/- LT extra’ (sic).
8. The Complaint alleged ‘… As per the label claim of outer carton, the drug is Easy Five pentavalant vaccine which is a combination of 5 different vaccines including HbSAg 10 mcg. (vaccine for Hepatitis). But as per label claim of inner vial Easy Four tetravalent vaccine which is a combination of four different vaccines, an does not contain HbSAg 10 mcg. (vaccine for Hepatitis) as claimed on the outer carton label …’ (sic)5 . It was averred that as the contents differed on the outer and inner labels, the drug was not labelled in the prescribed manner as specified in Rule 96 of the Rules; that the outer carton label makes a false claim for the drug and is misleading, and; that the drug is misbranded.
9. Pursuant to the Complaint, vide Order dated 29.01.2009 in the Complaint Case, the CJM summoned, inter alia, the Respondents.
Respondents filed Crl.O.P to set aside the summoning order
10. On 04.08.2009, the Respondents filed a Petition being Crl. M.C. No.2551/2009 before the High Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’), seeking to set aside the Summoning Order dated 29.01.2009. Subsequently, vide Order dated 17.06.2011, the High Court directed the CJM to consider whether the delay in filing the Complaint Case could be condoned in terms of Section 473 of the Code.
11. Vide Order dated 10.07.2012, the CJM condoned the delay on the part of Appellant No.2 in filing the Complaint Case under Section 473 of the Code and summoned, inter alia, the Respondents to face the trial.
12. Aggrieved by the Summoning Order dated 10.07.2012, on 21.08.2012, the Respondents filed Crl. M.C. No.2802/2012 before the High Court under Section 482 of the Code to quash the afore-mentioned Order on the grounds that the CJM did not conduct the mandatory statutory enquiry under Section 202 of the Code to ascertain the sufficiency of grounds to proceed against the Respondents.
High Court quashed the complaint due to territorial jurisdiction of CJM and failed to invoke section 202 CrPC
13. The High Court vide the Impugned Order dated 14.07.2022 quashed the Complaint Case qua the Respondents on the ground that they resided beyond the territorial jurisdiction of the CJM and yet the CJM failed to conduct the mandatory statutory enquiry under Section 202 of the Code. However, be it noted, the High Court did not interfere with the Order dated 10.07.2012 on the ground of limitation/under Section 473 of the Code.
State preferred this appeal against the Quash order
19. Learned counsel pointed out that even though the High Court in the Impugned Order noted that the Order dated 10.07.2012, passed by the CJM condoning the delay, cannot be said to be perverse, proceeded to quash the Complaint. It was prayed that the appeal be allowed.
Analysis, Reasoning and Conclusion
26. Having considered the rival contentions at the Bar, we find that a case for interference has been made out by the Appellants. For the purposes of adjudication in the case at hand, the Court is confronted with twin questions that arise:
(a) re limitation in taking cognizance as stipulated under Sections 468 and 469 read with Section 473 of the Code, and;
(b) re territorial jurisdiction in terms of Section 202 of the Code.
Initial question narration
27. On the initial question, let us take note of the relevant extract from the Complaint dated 20.01.2009 by the State of Kerala, represented by the Drugs Inspector (Intelligence Branch), Office of the Assistant Drugs Controller, Thrissur, Kerala (hereinafter referred to as the ‘Drugs Inspector’). The same is culled out and reproduced hereunder:
“……………”
28. From the aforesaid, it transpires that the initial ‘complaint’ dated 05.01.2006 was made by one Mr. Joy Mandi and was received by the Drugs Inspector on 16.01.2006, alleging that although he had purchased two ampoules of ‘Easy Five Pentavalent Vaccine’ for immunization of his child at the Primary Health Centre, as was represented on the outer packaging, but the vial inside had the label ‘Tetravalent vaccine Easy Four’.
31. We may end the narration here. The question/objection put forth by the Respondents-accused has to be noticed in terms of Sections 468 and 469 read with Section 473 of the Code, quoted hereunder:
“sections 468, 469 and 473CrPC ….”
Sections 468, 469 & 473 examination
32. Section 468 of the Code explains the period of limitation that bars taking cognisance. For now, this Court is restricting its discussions in the light of the relevance of the said provision to the facts of the present case. Thus, stricto sensu, on a plain reading, there is a bar to taking cognisance of the offence [i.e., Section 27(d) of the Act, which provides for ‘imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees’] after 3 years, in view of Section 468(2)(c) of the Code. Section 469 of the Code relates to the commencement of the period of limitation and that it shall commence on the date of the offence or where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. Section 473 of the Code, however, begins with a non-obstante provision and permits ‘any Court’ to take cognizance of any offence even after the expiry of the limitation period prescribed, upon satisfaction with regard to the facts and circumstances of the case that the delay has been ‘properly explained’ or ‘it is necessary so to do in the interests of justice.’
33. Taking a cue from the aforesaid, the bar to taking cognizance in the present case would be covered by Section 469(1)(c) of the Code inasmuch as the period of limitation would commence from the ‘first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.’ Thus, Section 469(1)(c) of the Code clearly contemplates that the identity of the offender may emerge during ‘investigation into the offence’. In the present case, though the initial ‘complaint’ was made by Mr. Joy Mandi on 05.01.2006, but for authentication and verification of the persons allegedly involved, an exercise was undertaken. We are of the considered opinion that the State adopted the correct approach, by virtue of Section 32 of the Act.
Drugs Inspector was an Inspector within the fold of section 32 of the D&C Act
36. From the aforesaid, it is clear that the Drugs Inspector, who made the complaint in the present case, satisfied the legal requirements of being a complainant. In other words, the Drugs Inspector was an ‘Inspector’ within the fold of Section 32 of the Act. On a conjoint reading of the provisions discussed hereinabove, the chain that emerges is that the Competent Authority having received a ‘complaint’ from a private party, namely Mr. Joy Mandi on 05.01.2006, put in motion a verification/investigation process, which was completed within three months, only whereafter the exact identity of the accused was established. In our considered view, hence, the time for making a complaint to the Court would start ticking only therefrom. In this context, we find that for the first time only on 18.04.2006, the identity of all the accused persons was before the Competent Authority. Undoubtedly, the Competent Authority was required to file a proper complaint before the Court, which was, however, ultimately done only on 20.01.2009. Though there is an inordinate delay, between the period from 18.04.2006 to 20.01.2009, in making the complaint, whereafter cognisance was taken and summons issued on 29.01.2009, the said exercise was completed within the 3-year period, as per Section 468(2)(c) read with Section 469(1)(c) of the Code. Therefore, in our view, the limitation bar does not come in the way. The limitation period would run out, in the present case, only on 17.04.2009, i.e., on completion of three years from the date the identity of the accused became known to the Competent Authority. On this question, we unhesitatingly hold in favour of the Appellants. As such, the Order passed by the High Court in Crl. M. C. No.2551/2009 dated 17.06.2011 was incorrect to the extent that it computed limitation as having started from ‘21.10.2005’, as the provision attracted was not Section 469(1)(b), but Section 469(1)(c) of the Code. Be that as it may, the legality, or otherwise, of the said Order dated 17.06.2011 has become academic today, in view of subsequent developments.
Second question: Section 202 Cr.P.C
37. Coming to the second question, on the aspect of jurisdiction, on which learned senior counsel for the Respondents laid great emphasis, the same is to be examined from the perspective of Section 202 of the Code:
38. A plain but relevant reading of Section 202(1) of the Code indicates that a Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
If the accused resided outside the jurisdiction there need not be a separate inquiry or investigation under section 202 CrPC for complaints filed by public servants
40. The present case emanates from a complaint by an officer, made in writing. In terms of Section 200 of the Code, the Magistrate is not required to examine the complainant and the witnesses, if a public servant is acting or purporting to act in discharge of his official duty or a Court has made the complaint. Here, an official complaint was made on authorisation by the State Government. In this factual setting, Section 202 of the Code would necessarily have to be construed harmoniously with Section 200 of the Code when considering postponement of the issue of process. Euclidean geometry tells us that the shortest distance between two points is a straight line. We, therefore, straightaway come to Cheminova India Limited (supra), relied upon by learned counsel for the Appellants, and valiantly attempted to be distinguished, factually, by learned senior counsel for the Respondents. At the cost of repetition, we re-extract Paragraph 18 thereof:
‘18. The legislature in its wisdom has itself placed the public servant on a different pedestal, as would be evident from a perusal of proviso to Section 200 of the Code of Criminal Procedure. Object of holding an inquiry/investigation before taking cognizance, in cases where the accused resides outside the territorial jurisdiction of such Magistrate, is to ensure that innocents are not harassed unnecessarily. By virtue of proviso to Section 200 of the Code of Criminal Procedure, the Magistrate, while taking cognizance, need not record statement of such public servant, who has filed the complaint in discharge of his official duty. Further, by virtue of Section 293 of Code of Criminal Procedure, report of the Government Scientific Expert is, per se, admissible in evidence. The Code of Criminal Procedure itself provides for exemption from examination of such witnesses, when the complaint is filed by a public servant.’ (emphasis supplied)
40.1 In Cheminova India Limited (supra), a coordinate Bench of this Court recognised that the Legislature had accorded, to public servants discharging their duties in their official capacity(ies), a different footing qua when they were complainant(s), vis-a-vis complaints made in private capacity. As previously noted, Mr. Luthra, learned senior counsel, stressed upon the factual differences between the position in Cheminova India Limited (supra) as compared to the instant matter. Having bestowed thoughtful consideration thereon, we are not inclined to accept his contentions, in view of the clear enunciation in Cheminova India Limited (supra). The second question also stands answered in the Appellants’ favour.
Quash order set aside and held summoning the accused is good
43. As a sequel to the aforesaid, the Impugned Order is set aside, and the Order taking cognisance and issuing summons dated 10.07.2012 is held to be good in law. However, due to the efflux of time and the fact that in this appeal [arising out SLP (Crl.) No.4524/2023], out of the three respondents, two are juristic entities and the third (i.e., Original Respondent No.2) having passed away, being the Managing Director, shall be substituted by the person(s) in charge of running the affairs of the Respondents-companies, at the relevant point of time. The Court concerned, upon appropriate application filed by the Appellants/Prosecution, shall array the said person(s) as accused and issue fresh summons.
Party
The State of Kerala & Anr. vs. M/s. Panacea Biotec Ltd. & Anr. (and connected appeals) – Criminal Appeal No. 1155 of 2026 (arising out of SLP (Crl.) No. 4524 of 2023) – 2026 INSC 200 – February 26, 2026 – Hon’ble Mr. Justice Ahsanuddin Amanullah and Hon’ble Mr. Justice S.V.N. Bhatti.
section 202 crpc, territorial jurisdiction, 202 crpc, accused residing outside, limitation, 473 crpc,
