TaxTMI 
TaxTMI 
2026 (3) TMI 98
X X X X Extracts X X X X
X X X X Extracts X X X X
....ma, Adv., Mr. Tarun Kumar, Adv., Mr. Harshad V. Hameed, AOR, Mr. S. S. Shroff, AOR, Mr. Aashish Gupta, Adv., Mr. Aditya Mukherjee, Adv., Mr. Krishna Tangirala, Adv., Mr. Naman Kumar, Adv. JUDGMENT PER AHSANUDDIN AMANULLAH, J. The matters are dealt with as follows: CRIMINAL APPEAL NO. 1155 OF 2026 [@ SLP (CRL.) NO.4524/2023] 1.1 Leave granted. 2. The present appeal assails the Final Judgment and Order dated 14.07.2022 passed in Crl. M.C. No. 2802 of 2012 (hereinafter referred to as the 'Impugned Order') passed by a learned Single Judge of the High Court of Kerala at Ernakulam (hereinafter referred to as the 'High Court'). FACTUAL MATRIX: 3. On 21.10.2005, one Mr. Joy Mandi was informed, about an alleged discrepancy in the labelling of the subject drug, alleged to be manufactured and sold by the Respondents, by the Medical Officer, Primary Health Centre, Thrissur, Kerala. 4. On 05.01.2006, Mr. Joy Mandi filed a Complaint with Appellant No. 2-Drug Inspector regarding the discrepancy in the labelling of the drug alleged to be manufactured and sold by the Respondents. Admittedly, no bill of purchase of the drug was placed on record in the Complaint Case. 5.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....yped Copy of the Complaint annexed with the Paperbook.]. It was averred that as the contents differed on the outer and inner labels, the drug was not labelled in the prescribed manner as specified in Rule 96 of the Rules; that the outer carton label makes a false claim for the drug and is misleading, and; that the drug is misbranded. 9. Pursuant to the Complaint, vide Order dated 29.01.2009 in the Complaint Case, the CJM summoned, inter alia, the Respondents. 10. On 04.08.2009, the Respondents filed a Petition being Crl. M.C. No. 2551/2009 before the High Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code'), seeking to set aside the Summoning Order dated 29.01.2009. Subsequently, vide Order dated 17.06.2011, the High Court directed the CJM to consider whether the delay in filing the Complaint Case could be condoned in terms of Section 473 of the Code. 11. Vide Order dated 10.07.2012, the CJM condoned the delay on the part of Appellant No. 2 in filing the Complaint Case under Section 473 of the Code and summoned, inter alia, the Respondents to face the trial. 12. Aggrieved by the Summoning Order dated 10.07.2012, on 21.0....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aking cognizance, need not record statement of such public servant, who has filed the complaint in discharge of his official duty. Further, by virtue of Section 293 of Code of Criminal Procedure, report of the Government Scientific Expert is, per se, admissible in evidence. The Code of Criminal Procedure itself provides for exemption from examination of such witnesses, when the complaint is filed by a public servant.' 17. Learned counsel for the Appellants submitted that the present case is squarely covered by the afore-noted dictum. 18. Touching upon the concept of vicarious liability apropos ascertainment of the culpability of the then Managing Director of the Respondents-companies (original Respondent No. 2), the learned counsel further submitted that the primary allegation is with respect to misbranding and a bare reading of Section 34 of the Act makes it clear that whenever an offence under the Act has been committed by a company, every person who, at the time the offence was committed, was in charge of or was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....port of a Government Analyst. Pertinently, Appellant No. 2 was, inter alia, relying on the allegations made by Mr. Joy Mandi in his 'complaint' dated 05.01.2006 and the alleged label of the carton of the subject drug to corroborate the allegation of misbranding. 25. Learned senior counsel also contended that Appellant No. 2 had failed to adduce the label of the vial of the drug in question or any independent third-party evidence or even a Government Analyst's Report to prima facie prove the allegation of misbranding, which was contrary to the judgment cited, wherein the specific facts and circumstances of that case, were considered by the Court. It was submitted that in Cheminova India Limited (supra), firstly, the allegations in the Complaint filed by a public servant were corroborated by Report(s) of Government Analyst(s) (which are per se admissible in law), therefore there was no need to examine the Complainant-public servant and/ or the Government Analyst(s) on oath, and; secondly, no prejudice was caused to the Appellants therein at the concerned stage. It was urged that the appeal merited outright dismissal. ANALYSIS, REASONING AND CONCLUSION: 26. Having considered ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Tetanux Toxoid 7.5 LF, Inactivated W-8, pertussis 12.0U (12000 X 10 Organisms) HS.Sag 10 mcg. H influenzae type b Oligosaccharides 10 mcg. Conjugated to CRM 197 Protien Aluminium content (A1 *3+) 0.25 mg As Aluminium Phosphate gel Thiomersal I.P. 0.025 mg, Water for injection I. P. Q.S. On the seal cap of the vial it was labelled as pentavalent vaccine Easy Five, B.No: P0124 SBPC, Mfg. Date: 14/Aug,2004, Exp. Date: 13-Aug 2006. But on the vial it was labelled as Tetravalent Vaccine Easy Four. B.No: TO 124SBC, Mfg. date: 29/August/2004, Exp. date: 28/August/2006. Manufactured by Panacea Biotec Ltd., A-241, Okhla, Industrial Area-1, New Delhi-110020, India. Retail Price not to exceed Rs. 500/- LT extra. Manufacturing Licence No: 1259. Each dose 0.5 ml.contains: Diphtheria Toxoid 20 LF, Tetanux Toxoid 7.5 LF, Inactivated W-B, pertussis 12.0U (12000 X 10 Organisms) H influenzae type b Oligosaccharides 10mcg. Conjugated to CRM 197 Protien Aluminium content (A1 *3+) 0.25mg As Aluminium Phosphate gel ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Certified copies of original invoices pertaining to purchase of subject drugs by A7 from A5, Certified copies of invoices pertaining to sale of subject drug from A5 to A7, and certified copies of credit notes issued by A5 to A3 were taken along with other connected documents. From the above documents it is proved that A5 has purchased, stocked for sale and sold the subject drug.48 The Drugs Inspector (Intelligence Branch), Ernakulam also inspected the premises of A3 firm on 18/4/06. Certified copies of purchase invoices pertaining to the purchase of the subject drug by A3 from A 1, Certified copies of invoices pertaining to the sale of drugs by A3 to A5, and certified copies of credit notes pertaining to return of subject drug from A3 to A1 were taken. From above documents it is proved that A3 has purchased stocked for sale and sold the subject drug. The Drugs Inspector (Intelligence Branch), Office of the Asst. Drugs Controller, Ernakulam forwarded the certified copies of relevant details taken from A3 and A5.' (sic) 28. From the aforesaid, it transpires that the initial 'complaint' dated 05.01.2006 was made by one Mr. Joy Mandi and was received by the Dru....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ugs from A-3 (firm) to A-1 were taken. The aforesaid certified copies of relevant details/documents obtained from A-3 (firm) to A-5 were then forwarded by the Drugs Inspector. 31. We may end the narration here. The question/objection put forth by the Respondents-accused has to be noticed in terms of Sections 468 and 469 read with Section 473 of the Code, quoted hereunder: '468. Bar to taking cognizance after lapse of the period of limitation.- (1) Except as otherwise provided elsewhere in this Cr.P.C, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. Section 473 of the Code, however, begins with a non-obstante provision and permits 'any Court' to take cognizance of any offence even after the expiry of the limitation period prescribed, upon satisfaction with regard to the facts and circumstances of the case that the delay has been 'properly explained' or 'it is necessary so to do in the interests of justice.' 33. Taking a cue from the aforesaid, the bar to taking cognizance in the present case would be covered by Section 469(1)(c) of the Code inasmuch as the period of limitation would commence from the 'first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.' Thus, Section 469(1)(c) of the Code clearly contemplates that the identity of the offender may emerge during 'investigation into the offence'. In the present case, though the initial 'complaint' was made by Mr. Joy Mandi on 05.01.2006, but for authentication and verification of the persons allegedly i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on a verification/investigation process, which was completed within three months, only whereafter the exact identity of the accused was established. In our considered view, hence, the time for making a complaint to the Court would start ticking only therefrom. In this context, we find that for the first time only on 18.04.2006, the identity of all the accused persons was before the Competent Authority. Undoubtedly, the Competent Authority was required to file a proper complaint before the Court, which was, however, ultimately done only on 20.01.2009. Though there is an inordinate delay, between the period from 18.04.2006 to 20.01.2009, in making the complaint, whereafter cognisance was taken and summons issued on 29.01.2009, the said exercise was completed within the 3-year period, as per Section 468(2)(c) read with Section 469(1)(c) of the Code. Therefore, in our view, the limitation bar does not come in the way. The limitation period would run out, in the present case, only on 17.04.2009, i.e., on completion of three years from the date the identity of the accused became known to the Competent Authority. On this question, we unhesitatingly hold in favour of the Appellants. As suc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is authorized to take cognizance, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. 39. At this juncture, we turn to Section 200 of the Code, which provides as under: '200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fferent footing qua when they were complainant(s), vis-a-vis complaints made in private capacity. As previously noted, Mr. Luthra, learned senior counsel, stressed upon the factual differences between the position in Cheminova India Limited (supra) as compared to the instant matter. Having bestowed thoughtful consideration thereon, we are not inclined to accept his contentions, in view of the clear enunciation in Cheminova India Limited (supra). The second question also stands answered in the Appellants' favour. 40.2 We may add that we have borne in mind the earlier pronouncement of another Coordinate Bench in Birla Corporation Limited v Adventz Investments and Holdings Limited, (2019) 16 SCC 610 [The coram in Birla Corporation Limited (supra) included the learned Judge who authored Cheminova India Limited (supra).], referred to by the High Court, as also the case-law discussed therein. In Birla Corporation Limited (supra), the complainant was a private person. As such, no aid therefrom can flow to the Respondents' advantage. 41. Furthermore, admittedly the accused who actually sold the medicine to Mr. Joy Mandi was residing within the limits of the local jurisdiction of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the name of Veekay Surgicals Pvt. Ltd. One of the portions of the sealed sample and Form 18 were sent to the Government Analyst, Drugs Testing Laboratory, Thiruvananthapuram, Kerala as per Section 23(4)(i) of the Act. 52. On 27.01.2016, Government Analyst, Drugs Testing Laboratory, Thiruvananthapuram in Form 13 declared the above drug as being 'not of standard quality' as it had failed the test of 'Freedom from Extraneous matter and Sterility'. Pursuant to subsequent inquiry, on 03.06.2016, the Managing Director, Kerala Medical Service Corporation Limited, Thiruvananthapuram, vide Letter of even date, forwarded the constitutional details of the afore-mentioned accused company to the Appellants. 53. Consequently, Appellant No. 1 initiated prosecution against M/s. Veekay Surgicals Pvt. Ltd., accused No. 1 and respondents herein as Accused Nos. 2 and 3, who are Directors in accused No. 1, alleging offence under Section 18(a)(i) of the Act, punishable under Section 27(d) of the Act, by filing a formal complaint before the Court of the learned Judicial First Class Magistrate-II, Perambra, Kozhikode on 29.06.2016. 54. Aggrieved, the Respondents herein moved the High Court for q....