S.32A Drugs & Cosmetics Act | Impleadment Of Manufacturer Can Be Done Only After Trial Has Commenced & Evidence Is Led: J&K&L High Court

A bench comprising Justice Sanjay Dhar was hearing a plea through the medium of which the petitioner had challenged the complaint filed by respondent Drugs Inspector alleging commission of offences under Section 18(a)(i) of the Drugs and Cosmetics Act, 1940, and also the order by virtue of which the Chief Judicial Magistrate Pulwama, had impleaded the petitioner as an accused and issued process against him.

Record revealed that initially the petitioner was not impleaded as an accused in the complaint but during the pendency of the complaint, trial Magistrate observed that the accused company has been sold to the petitioner and, as such, he is required to be impleaded as an accused. Accordingly, the petitioner has been impleaded as an accused in the complaint.

The main grounds that prevailed during the course of arguments was that the petitioner had been impleaded as an accused in the complaint without there being any evidence against him and that the Magistrate, while impleading the petitioner as an accused, had not followed the procedure prescribed under law.

The petitioner further contended that there were no allegations against the petitioner in the impugned complaint, inasmuch as it is nowhere stated in the complaint that the petitioner was the person responsible for conducting the day-to-day business of the company.

Adjudicating upon the matter controversy Justice Dhar observed that the Section 32-A of the Drugs and Cosmetics Act is amply clear that for impleading a manufacturer or some other person as an accused, the court has to be satisfied on the basis of the evidence adduced before it that such person is also concerned in that offence. The provision clearly indicates that the impleadment of an additional accused can be resorted to only during the trial of the offence and the satisfaction about the involvement of such additional accused has to be based on the evidence that has been adduced during the trial, the bench underscored.

Buttressing the said position of law the bench also found it worthwhile to record the observations of Supreme Court in Omprakash Shivprakash vs. K. I. Kuriakose, AIR 1999 wherein SC while interpreting similar provisions contained in Section 20A and 16(1) of the Prevention of Food Adulteration Act 1954, observed,

"The above provision overrides the ban contained in Section 20 of the Act that no prosecution shall be instituted for the offences under the Act except by or with the consent of the authorities mentioned in the Section, The essential conditions for invoking the power under Section 20-A are that (1) the trial should have begun already; (2) the trial must be of any offence under the Act allegedly committed by a person other than the manufacturer or distributor or dealer of the food article; (3) the court must have been satisfied that such manufacturer or dealer or distributor is also concerned with the offence; (4) such satisfaction must have been formed "on the evidence adduced before the court."

Differentiating the provision 319 of CrPC from Sec 32-A of the Drugs and Cosmetics Act the bench further recorded the observations of SC as under,

"One of the differences between Section 319 of the Code and Section 20-A of the Act is that, while in the former even if it appears to the court from the evidence (either during inquiry or trial of the offence), that another person is to be tried along with the already arraigned accused, then the court can proceed against that other person, while in the latter the satisfaction of the court that such manufacturer (distributor or dealer) is also concerned with that offence must be gathered from "the evidence adduced before it during the trial". In other words, the power under Section 20-A cannot be invoked until the trial begins and after the trial ends."

Deliberating further on the subject the bench observed that in the instant case, the trial had yet to commence when the Magistrate passed the impugned order directing the impleadment of the petitioner as an accused in the impugned complaint and in fact, the impugned complaint was still at the summoning stage at the relevant time. The impugned order passed by the trial Magistrate impleading the petitioner as an accused is, therefore, contrary to the procedure prescribed under law, the bench noted.

In view of the stated position of law, the proceedings pending before the trial court in the impugned complaint as well as the impugned complaint to the extent of the petitioner were quashed.

Case Title: Rishi Sharma Director Haustus Biotech Vs Drug Inspector

Citation: 2022 LiveLaw (JKL) 122

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