Managing Director, Operations v.

State of Jammu & Kashmir, 2022 SCC OnLine J&K 556

Elnova Pharma Village v. State of H.P., 2022 SCC OnLine HP 5091
PRELIMINARY DETAILS OF THE CASE

Case No. Criminal Revision No. 37 of 2022

Jurisdiction High Court of Himachal Pradesh

Case Decided on 28th September, 2022

Judges Sandeep Sharma, J.

Legal Provisions involved Drugs and Cosmetics Act 1940

Case Summary prepared by Jinta Jaimon, Student of B. A L.LB

Christ University, Delhi NCR

Pertains to – framing of charge under Section 18(a)(i) read with Section 17-B
(d) punishable under Sections 27(d) and 27(c) of the Drugs & Cosmetics Act,
1940 against the petitioner.

FACTS

 Drug Controller cum Licensing Authority, Shimla, H.P. granted licence

to the petitioner-firm M/s. Elnova Pharma for manufacturing of the drugs
specified in Schedule C & C(i) of Form 28 of the Drugs and Cosmetics
Act.
 On the same day, the licensing authority granted license to the Company
for manufacturing drugs other than specified in Schedule C & C(i). On
30.1.2012, the Drug Inspector visited the premises of petitioner No. 1-
 M/s. Elnova Pharma and during the course of the inspection drew
samples of 11 drugs including EP-KOFF capsules, which were in the
form of Soft Gelatin Capsules and sent the same to CTL Kandaghat for
chemical analysis. Government Analyst CTL Kandaghat vide declared
the sample of drug in question as “not of standard quality”.
 The assay test of the drug in question as contained in Central Drug
Laboratory, Kolkata report, reveals that out of combination of three
drugs, assay test was found to be performed on two drugs. After receiving
the report from the Central Drug Laboratory, Kolkata, the State Drug
Inspector Himachal Pradesh granted sanction for launching prosecution
against the petitioner-firm under Section 18(a)(i) read with Section 17-
B(d) of the Act.

RELEVANT LAWS

 Section 18(a)(i) read with Section 17-B (d) of Drugs and Cosmetics Act
1940
 Sections 27(d) and 27(c) of the Drugs & Cosmetics Act, 1940

ISSUES
1. Whether the framing of charges was valid?
2. Whether the Court is competent enough to quash the order framing
charge as well as consequent proceedings while exercising power under
Sections 397 & 482 Cr.P.C?

DECISION AND REASONING

The Counsel for petitioner stated that in the case of Amit Kapoor v. Ramesh
Chander, (2012) 9 SCC 460 it was held that framing of a charge is an exercise
of jurisdiction by the trial Court in terms of Section 228 of the Cr. PC unless the
accused is discharged under Section 227 Cr.PC. The Hon'ble Apex Court has
further held that under the Section 227 and 228 Cr. PC, the Court is required to
consider the ‘record of the case’ and the documents submitted therewith and,
after hearing the parties, may either discharge the accused or where it appears to
the Court and in its opinion, there is ground for presuming that the accused has
committed an offence, it shall proceed to frame the charge.
The Court should apply the test as to whether the allegations made from the
record of the case and the documents submitted prima facie establish the
offence or not. If the allegations are so absurd and inherently improbable that no
prudent person can ever reach such a conclusion and where the basic ingredients
of a criminal offence are not satisfied then the Court may interfere.

The Court has a duty to balance the freedom of a person and the right of the
complainant or prosecution to investigate and prosecute the offender.
The Court is certainly required to see whether prima-facie case exists against
the accused or not.
To prevent abuse of process of law and to prevent unnecessary harassment to
the petitioners the Court quashed the order framing charges and consequent
proceedings against the petitioners.