2. The present appeal is directed against the final order dated 23.08.2021 passed by the High Court of Madras (hereinafter referred to as “High Court”) in Criminal O.P. No. 6445 of 2018, where the Appellants’ plea under Section 482 of the Cr.PC to quash the criminal complaint against them was dismissed.
Briefly, the facts relevant for the purpose of this Appeal are as follows:
I. Appellant No.1 is the proprietor of an established company under the name of M/s. Chem Pharm, a trader of raw material chemicals used in food, food supplements, medicinal preparations etc. Appellant No.2 is the son and employee of Appellant No. 1.
II. During the course of their business, the Appellants purchased 75 Kg of pyridoxal-5-phosphate (as 3 x 25Kg packs) from one M/s Antoine & Becouerel Organic Chemical Co., vide invoice dated 19.03.2013.
III. On 19.11.2013, the then Drug Inspector, Kodambakkam Range, inspected the Appellants’ premises and alleged contravention of S.18(c) of the Drugs and Cosmetics Act 1940 read with Rule 65(5)(1)(b) of the Drugs and Cosmetics Rules 1945. It was claimed that the Appellants broke up the bulk quantity of pyridoxal-5-phosphate and sold it to different distributors.
IV. It is alleged that the Appellant had broken up the bulk quantity of raw materials into various pack sizes containing quantities 0.5kg, 1kg, 10kg and 15kg and had sold the same to various drug manufacturers.
V. On 30.03.2016, the Drug Inspector issued a show cause memo to the Appellants after nearly three years. The Appellants, after the show cause memo on 02.04.2016, submitted their reply to the same.
VI. On 11.08.2017, after a further lapse of one year and four months, the Respondent, filed a complaint against the Appellants.
ANALYSIS
7. We have heard the counsels appearing on behalf of the Appellants and the Respondents in great detail. 8. For the quashing of a criminal complaint, the Court, when it exercises its power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the complaint disclose the commission of a cognizable offence.
Apex Court after quoting State Of Haryana & Ors. Vs Bhajan Lal & Ors. [1992 Supp 1 SCC 335]; State of Andhra Pradesh Vs. Golconda Linga Swamy & Anr – (2004) 6 SCC 522; R.P. Kapur Vs. State of Punjab – (1960) 3 SCR 388 has held that:
12. The Respondent, in the impugned complaint, stated that during the inspection of the Appellants’ premises, it was found that the Appellants had purchased 75 kg (as 3 x 25kg packets) of the impugned substance. However, no stock of the impugned substance was found on the premise of the Appellants.
Impugned substance is categorised as food under the Food and Safety and Standards Act, 2006
15. This Court in R.P. Kapur Vs State Of Punjab (Supra), as mentioned above, has clarified that the court can exercise its powers to quash a criminal complaint, provided that the evidence adduced is clearly inconsistent with the accusations made, or no legal evidence has been presented.
16. Upon perusal of the legal nature of the impugned substance, it can be seen that the impugned substance has been categorized as a bulk food substance falling under the definition of food as per Section 3(1)(j) of the Food Safety and Standards Act, 2006. The impugned substance has specifically been mentioned as a food ingredient in Serial No.4(ii) of the Schedule-I of the Food Safety and Standards Regulations, 2016.
17. From a bare perusal of the relevant laws and regulations, it can also be seen that the alleged substance is not included as a drug in the Indian Pharmacopoeia. The fact that it is mentioned as “food” as per Section 3(1)(j) of the Food Safety and Standards Act, 2006, further only proves that the impugned substance does not require a specific license under the Drugs and Cosmetics Act, 1940.
Respondent did not make any effort to prove the impugned substance is only food and not food
19. It is also worth mentioning that the Respondent has made no effort to prove that the alleged substance is only a drug and not a food manufacturing substance. No scientific evidence or otherwise has been furnished to prove that the alleged substance is solely used for manufacturing drug and not food items. Prima Facie, due to the lack of evidence adduced by the Respondent in the four-year period between the initial enquiry and the complaint, this court cannot presume that the alleged substance can only be classified as a “drug”.
22. While the sale of the alleged substance is an admitted fact by the Appellants, no efforts have been made by the officer to prove that the alleged substance is a drug which comes only under the purview of the Drugs and Cosmetics Act, 1940. No efforts have also been made to show that the packaging of the impugned substance was broken up into various-size packets different from the original packaging from the original manufacturer. No recovery of the sold packets has been made to ascertain whether the original packaging was tampered with.
Four years gap of initial investigation and complaint is not explained
23. There has been a gap of more than four years between the initial investigation and the filing of the complaint, and even after lapse of substantial amount of time, no evidence has been provided to sustain the claims in the complaint. As held by this Court in Bijoy Singh & Anr. Vs State Of Bihar[(2002) 9 SCC 147], inordinate delay, if not reasonably explained, can be fatal to the case of the prosecution. The relevant extract from the judgment is extracted below:-
“Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn, but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it.”
24. In the present case, the Respondent has provided no explanation for the extraordinary delay of more than four years between the initial site inspection, the show cause notice, and the complaint. In fact, the absence of such an explanation only prompts the Court to infer some sinister motive behind initiating the criminal proceedings.
25. While inordinate delay in itself may not be ground for quashing of a criminal complaint, in such cases, unexplained inordinate delay of such length must be taken into consideration as a very crucial factor as grounds for quashing a criminal complaint.
HASMUKHLAL D. VORA & ANR. … APPELLANT (S) VERSUS THE STATE OF TAMIL NADU … RESPONDENT (S) – CRIMINAL APPEAL NO. 2310 OF 2022 –
https://main.sci.gov.in/supremecourt/2022/6391/6391_2022_14_1501_40641_Judgement_16-Dec-2022.pdf
6391_2022_14_1501_40641_Judgement_16-Dec-2022
