Says those who risk lives of people can’t take shelter under laws that seek to punish them
Srinagar: Those risking lives of people can’t take shelter under laws that seek to punish them, the Jammu and Kashmir High Court said on Saturday as it dismissed a bunch of 29 petitions seeking directions to quash proceedings against them in connection with the supply of spurious drugs in the state.
“The hands those deal with risking the peoples’ lives for their commercial gains cannot be strengthened to use the provisions of law to their advantage and feel encouraged to take shelter under the auspices of same law that seeks punishment for such elements,” a single bench of Justice Ali Mohammad Magrey said, underlining that the pleas lacked “legal credibility to warrant indulgence in the trial initiated against petitioners” under Drugs and Cosmetics Act, 1940.
The complaints leading to trial against the petitioners had followed after drug samples from different pharmaceutical companies, collected by respective drug inspectors from many parts of valley, turned to be substandard on testing.
The petitioners had sought directions to quash proceedings, pending before different courts, mainly on technical reasons, with most of them stating that they were only representing the companies that ought to have been arrayed as accused, not them.
Some petitioners included a few manufacturer of the pharmaceutical companies who had challenged issuance of process by the trial court for lack of “jurisdiction” to try them while others had contended that they were denied right to adduce evidence against the analysis report.
“Even if it is assumed that the complainant (drug inspector) has omitted to strictly follow the format, the technicality cannot be preferred over substantial justice, more so, for the reason that the alleged offence pertains to and involves the precious human lives,” the court said.
After perusal of the complaints and other allied material, the court observed that the samples, after their collection, were sent to analysis in due regard of the applicable provisions and that the petitioners were informed that the drugs were sub-standard.
“The perusal of the record (would also reveal) that some of the drugs even on retesting, conducted at the request of concerned quarter, were confirmed to be sub-standard, therefore, the plea that the petitioners/ accused were not provided with an opportunity to get the drug reanalyzed in terms of Section 25 (3) of the Act is belied and rejected accordingly,” the court said.
Similarly, it said, the other petitioners who have been arrayed as accused for having indulged in sale of such sub-standard drugs in the capacity of a distributor or a seller, cannot be expected to be ignorant of the trade being undertaken through them by somebody else.
“Therefore, I believe they equally share the criminal liability,” it said.
The court said provisions of Act would amply demonstrate that the defence raised by the petitioners was of no help to them but lends credence to complainant as the plain reading of the provisions would reveal that any person acting on behalf of the company dealing with its day-to-day affair was liable for the actions of the company.
“If the allegation against the company is that it has indulged in manufacturing, distributing, supplying or selling of a sub-standard drug, the representative of the company vested with a responsible position like Managing director, Director, Manager, Secretary etc, cannot escape liability of such action,” the court said.
It said that the provisions of the Drugs and Cosmetics Act, 1940 would conveniently make it clear that they have been made use of to promote the “law spirit and not abused or misused to cause miscarriage of justice.”
“The offence alleged against the accused petitioners is very heinous in nature and involves a large public interest,” the court said, stressing that object of the Act is to prevent the manufacturing, distribution, supply and sale of sub-standard, spurious, adulterated drugs and maintain the drug quality in the market “to see that the precious lives do not fall prey to nefarious designs of money hungry people who are out there to disturb the public order for their personal gains.”
“Such nobility is required to be advanced rather than being shelved and or confined to paper work only. The stringent measures are required to be put in place to see and ensure that the object of the Act gets achieved and the shortcomings wherever found, be set right,” the court said.
Referring to section 561-A of the Code of Criminal Procedure, the single bench said that it is a settled law that the remedy is to be exercised by the courts of law in very rare cases when it is convinced that the proceedings challenged have resulted in miscarriage of justice and or are abuse of process of law. “The endeavor of the court in terms of section 561-A of the Code is always to ensure that the spirit of law is promoted and its process is not abused by the law enforcing agencies,” the court said.