2025 INSC 127
SUPREME COURT OF INDIA
(HON’BLE B.R.
GAVAI, J. AND HON’BLE AUGUSTINE GEORGE MASIH, JJ.)
M/S. JM LABORATORIES
Petitioner
VERSUS
STATE OF ANDHRA
PRADESH
Respondent
Criminal
Appeal No. 487 of 2025 (Arising out of SLP (Crl.) No. 5067 of 2024)-Decided on
30-01-2025
Criminal, Quashing
Criminal Procedure
Code, 1973, Section 482 - Drugs and Cosmetics Act, 1940, Section
18(a)(i) read with Section 16, Section 27(d), 32 - Summoning order – Non-speaking order - Petition for quashing
- No reasons even for the namesake have been assigned by the learned Magistrate
- The summoning order is totally a non-speaking one - Impugned judgment and
order passed by the High Court is quashed and set aside - The summoning order
passed by the Trial Court and the proceedings arising therefrom are also liable
to be quashed and set aside.
(Para
9 and 10)
JUDGMENT
B.R. Gavai, J. :- Leave granted.
2.
The present appeal challenges the judgment and final order dated 4th October,
2023 passed by a learned Single Judge of the High Court of Andhra Pradesh at
Amravati in Criminal Petition No. 5766 of 2023, whereby the petition filed by
the appellants herein under Section 482 of Code of Criminal
Procedure, 1973 (hereinafter, “CrPC”) to quash the Judicial Magistrate of
First Class, Kurnool (hereinafter, “trial court”) came to be dismissed.
3.
The facts, in brief, giving rise to the present appeal are as given below.
3.1. On 29th May, 2019
the Drugs Inspector, Kurnool Urban, Kurnool District (Respondent No. 2) filed a
complaint being C.C. No. 1051 of 2023 in the Court of First Class Judicial
Magistrate, Kurnool under Section 32 of the Drugs and Cosmetics Act,
1940 (hereinafter, “DC Act”) against M/s. J.M. Laboratories (Appellant No. 1),
its Managing Partner (Appellant No. 2) and three silent partners (Appellant
Nos. 3, 4 & 5).
3.2. It is alleged
that on 7th September, 2018, the complainant picked up sample of drug
MOXIGOLD-CV 625 (Amoxycillin & Potassium Clavunate Tablets IP) bearing
Batch No. BT170059F / Manufacture Date – November 2017 / Expiration Date –
April 2019, which was manufactured by Appellant No. 1, for analysis. It is
further alleged that on the same day by a memorandum, the complainant sent one
sealed portion of the drug sample to the Government Analyst, Drugs Control
Laboratory, Vijayawada along with Form-18 through registered post. It is
further alleged that subsequently on 15th December, 2018, the complainant
received Analytical Report in Form-13 from the Government Analyst
declaring the drug sample as “Not of Standard Quality” as defined in the DC Act
and rules thereunder for the reason that the sample failed in Dissolution Test
for Amoxycillin and Clavulanic Acid. It is, therefore, alleged that the
appellants herein have violated Section 18(a)(i) read with Section 16
of the DC Act by manufacturing, selling and distributing “Not of Standard
Quality” drugs and ought to be punished for offence punishable under Section
27(d) of DC Act.
3.3. Pursuant to the
complaint, the trial court by an order dated 19th July, 2023 summoned the
appellants herein and directed them to appear before it on 10th August, 2023.
3.4. Aggrieved
thereby, the appellants herein filed a petition under Section 482 of
CrPC inter-alia praying that the High Court quash criminal proceedings against
them arising out of C.C. No. 1051 of 2023 on the file of the trial court.
3.5. Vide impugned
judgment and final order, the learned Single Judge of the High Court dismissed
the Criminal Petition. Aggrieved thereby, the present appeal by way of special
leave.
4.
We have heard Shri H.P.S. Sandhu, learned counsel appearing on behalf of the
appellants and Smt. Prerna Singh, learned counsel appearing on behalf of the
respondents.
5.
Several submissions have been made on behalf of the appellants. It is contended
by the appellants that there are violations of various statutory provisions. It
is also contended that the case is barred by limitation in view of the
provisions contained in Section 468 (2) of the Cr.P.C. It is
submitted that the Analytical Report in respect of which the violation is
alleged is dated 15th December 2018 whereas the complaint is filed in May 2023.
It is submitted that it is filed beyond a period of three years and hence, the
same would not be tenable. It is also submitted that there is also
non-compliance of the provisions of Section 202 of Cr.P.C.
6.
However, we do not find it necessary to consider the submissions made by the
appellants on various grounds inasmuch as the present appeal is liable to be
allowed on the short ground that the learned Magistrate has issued the process
without assigning any reasons.
7.
It will be relevant to refer to the summoning order which reads thus:
“Whereas your
attendance is necessary to give evidence in a
charge Sec.18(a)(i) r/w Sec. 16(i)(a) of Drugs &
Cosmetics Act, 1940 against the accused M/s J.M. Laboratories, Vill. Bhanat,
P.O-Ghtti, Subathu Road, Solan (H.P.). You are hereby requested to appear in
person before the Hon’ble Court of Judicial First Class Magistrate, Kurnool at
10:30 AM on the 10th day of August 2023.
Given under my hand
the seal of the court this ______ day of July 2023.”
8.
In the judgment and order of even date in criminal appeal arising out of SLP
(Crl.) No. 2345 of 2024 titled “INOX Air Products Limited Now Known as INOX Air
Products Private Limited and Another v. The State of Andhra Pradesh”, we have
observed thus:
“33. It could be seen
from the aforesaid order that except recording the submissions of the
complainant, no reasons are recorded for issuing the process against the
accused persons.
34. In this
respect, it will be relevant to refer to the following observations of this
Court in the case of Pepsi Foods Ltd. and Another v. Special Judicial
Magistrate and Others (1998) 5 SCC 749 (supra):
“28. Summoning of an
accused in a criminal case is a serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the complainant has to bring only
two witnesses to support his allegations in the complaint to have the criminal
law set into motion. The order of the Magistrate summoning the accused
must reflect that he has applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of allegations made in the
complaint and the evidence both oral and documentary in support thereof and
would that be sufficient for the complainant to succeed in bringing charge home
to the accused. It is not that the Magistrate is a silent spectator at the time
of recording of preliminary evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence brought on record and may
even himself put questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or any of the accused.”
35. This Court has
clearly held that summoning of an accused in a criminal case is a serious
matter. It has been held that the order of the Magistrate summoning the accused
must reflect that he has applied his mind to the facts of the case and the law
applicable thereto. This Court held that the Magistrate is required to examine
the nature of allegations made in the complaint and the evidence, both oral and
documentary in support thereof and as to whether that would be sufficient for
proceeding against the accused. It has been held that the Magistrate is not a
silent spectator at the time of recording of preliminary evidence before
summoning the accused.
36. The said law would
be consistently following by this Court in a catena of judgments including in
the cases of Sunil Bharti Mittal v. Central Bureau of
Investigation (2015) 4 SCC 609, Mehmood Ul Rehman v. Khazir Mohammad Tunda
and Others (2015) 12 SCC 420 and Krishna Lal Chawla and Others v. State of
Uttar Pradesh and Another (2021) 5 SCC 435.
37. Recently, a Bench
of this Court to which one of us (Gavai, J.) was a Member, in the case
of Lalankumar Singh and Others v. State of Maharashtra 2022 SCC
OnLine SC 1383 (supra), has observed thus:
“38. 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. No doubt, that the order need not contain detailed reasons. A
reference in this respect could be made to the judgment of this Court in the
case of Sunil Bharti Mittal v. Central Bureau of Investigation, which
reads thus:
“51. On the other
hand, Section 204 of the Code deals with the issue of process, if in the
opinion of the Magistrate taking cognizance of an offence, there is sufficient
ground for proceeding. This section relates to commencement of a criminal
proceeding. If the Magistrate taking cognizance of a case (it may be the
Magistrate receiving the complaint or to whom it has been transferred under
Section 192), upon a consideration of the materials before him (i.e. the
complaint, examination of the complainant and his witnesses, if present, or
report of inquiry, if any), thinks that there is a prima facie case for
proceeding in respect of an offence, he shall issue process against the
accused.
52. A wide discretion
has been given as to grant or refusal of process and it must be judicially
exercised. A person ought not to be dragged into court merely because a
complaint has been filed. If a prima facie case has been made out, the
Magistrate ought to issue process and it cannot be refused merely because he
thinks that it is unlikely to result in a conviction.
53. However, the words
“sufficient ground for proceeding” appearing in Section 204 are of immense
importance. It is these words which amply suggest that an opinion is to be
formed only after due application of mind that there is sufficient basis for
proceeding against the said accused and formation of such an opinion is to be
stated in the order itself. The order is liable to be set aside if no reason is
given therein while coming to the conclusion that there is prima facie case
against the accused, though the order need not contain detailed reasons. A
fortiori, the order would be bad in law if the reason given turns out to be ex
facie incorrect.”
39. A similar view has been taken by this Court in
the case of Ashoke Mal Bafna (supra).
40. 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. The appeal therefore
deserves to be allowed.”
9.
In the present case also, no reasons even for the namesake have been assigned
by the learned Magistrate. The summoning order is totally a non-speaking one.
We therefore find that in light of the view taken by us in criminal appeal
arising out of SLP (Crl.) No. 2345 of 2024 titled “INOX Air Products Limited
Now Known as INOX Air Products Private Limited and Another v. The State of
Andhra Pradesh”, and the legal position as has been laid down by this Court in
a catena of judgments including in the cases of Pepsi Foods Ltd. and
Another v. Special Judicial Magistrate and Others[(1998) 5 SCC 749 : 1997 INSC 714] , Sunil Bharti Mittal v.
Central Bureau of Investigation[(2015) 4
SCC 609 : 2015 INSC 18] , Mehmood Ul Rehman v. Khazir Mohammad Tunda
and Others[(2015) 12 SCC 420 : 2015 INSC
983] and Krishna Lal Chawla and Others v. State of Uttar Pradesh
and Another[(2021) 5 SCC 435 : 2021 INSC
160], the present appeal deserves to be allowed.
10.
In the result, we pass the following order:
(i) The present appeal is allowed;
(ii) The impugned judgment and order dated 4th
October 2023 passed by the High Court of Andhra Pradesh at Amravati in Criminal
Petition No. 5766 of 2023 is quashed and set aside; and
(iii) The summoning
order dated 19th July 2023 passed by the Trial Court in C.C. No. 1051 of 2023
and the proceedings arising therefrom are also quashed and set aside.
11.
Pending application(s), if any, shall stand disposed of.
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