Order Of Issuance Of Process Liable To Be Set Aside If No Reasons Given While Concluding Prima Facie Case Against Accused: SC
The Supreme Court has observed that the order of issuance of process is liable to be set aside if no reasons are given while concluding that there is a prima facie case against an accused.
In that context, the Bench of Justice BR Gavai and Justice CT Ravikumar observed thus "The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused."
In this case, the Appellants were the Directors of M/s Cachet Pharmaceuticals Private Ltd. (CPPL). CPPL was granted permission to manufacture 'Hemfer Syrup' which falls under Schedule C & C(1) to the Drugs & Cosmetics Rules, 1945.
In 2006, the then Drugs Inspector, Food and Drugs Administration, Beed, Maharashtra, visited the premises of M/s. Priya Agencies at Beed and purchased 'Hemfer Syrup', from which he had drawn samples of the drug.
He sent one such sample to the Government Analyst, Maharashtra State Drug Control Laboratory Mumbai so as to have the drug tested. Later he received a test report from the Government Analyst stating that the sample was not of standard quality.
Deputy Manager, QA of CPPL requested the Drug Inspector to send the samples again for analysis. Pursuant to an application filed by M/s Alkem Laboratories, the distributor of CPPL, the Chief Judicial Magistrate, Beed sent the samples of 'Hemfer Syrup' for reÂanalysis.
Later the CJM, Beed received the test report from the Central Drug Laboratory, Calcutta stating therein that the sample was not of standard quality as it did not conform to the accepted limits of Cyanocobalamin content.
Pursuant to the orders to take legal action against the manufacturer of the drug, a Complaint came to be filed before the Chief Judicial Magistrate, Beed under Section 18(a)(i) read with Sections 16 and 34 of the Drugs & Cosmetics Act, 1940 and punishable under Section 27(d) of the said Act.
In the said complaint, the present Appellants being Directors of the Company were arrayed as accused.
The CJM, Beed issued Summons to all the accused, including the Appellants. The Appellants filed a Criminal Revision Petition against the summoning order before the Sessions Judge, Beed on the ground that there are no specific averments in terms of Section 34 of the said Act as to the role played by the Directors and thus sought for the Summoning Order to be quashed.
However, the Sessions Judge, Beed rejected the said Criminal Revision Petition noting that there is a specific averment in the complaint that the appellants are concerned with the manufacture, distribution and sale of 'Hemfer Drug'.
The Appellants challenged the order passed by the Sessions Judge. The High Court dismissed the Petition on the ground that all the Directors were conducting the business of CPPL and thus, were involved in the manufacturing process.
Aggrieved, the Appellants approached Supreme Court.
Senior Advocates C.U. Singh and Anupam Lal Das appeared for the Appellants whereas Advocate Siddharath Dharmadhikari appeared for the State.
The Court noted that there are no specific averments insofar as the present appellants are concerned. The Court further observed that the complaint lacked the requirement of Section 34 of the said Act.
After the perusal of the order passed by the Single Judge of the High Court, the Court noted that the CJM has not even cared to pass a formal order of issuance of process.
"It could thus clearly be seen that the learned Single Judge of the High Court held that though there was no formal order of issuance of process, the record was sufficient to infer that the order of issue process was made.", the Court observed.
The Court noted that the order of issuance of process is not an empty formality. The Court further held that the Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not and that the formation of such an opinion is required to be stated in the order itself.
The Court observed that "In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as a matter of fact, it is clear from the order of the learned Single Judge of the High Court, that there was no such order passed at all. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. We find that such an approach is unsustainable in law."
Accordingly, the Court allowed the appeal and quashed and set aside the Order of issuance of process passed by the Chief Judicial Magistrate, Beed and the Order passed by the Sessions Judge, Beed dismissing the Criminal Revision.
Cause Title- Lalankumar Singh & Ors. v. State of Maharashtra
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