RHOMBIC LABOURATORY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both the appellants are original accused of Criminal Case No. 3 of 1995 decided on 26th June, 1997, who have been held guilty for the offence punishable under Sections 3 and 7 of the Essential Commodities Act and for violation of paragraph 10 of the Drugs (Price Control) Order; 1987 and the appeal has been preferred under the provisions of Sections 374 read with Section 386 of the Code of Criminal Procedure.

(2.) Mr. Mangukia, learned Counsel appearing for the appellants has taken me through the judgment under challenge as well as the various grounds of challenge mentioned in the memo of appeal. Mr. Mangukia, learned Counsel and Ms. Pandit, learned A. P. P., both have taken me through the - documentary evidence as well as oral evidence referred to by the learned trial Judge while recording conviction and dealing with technical defence that were raised during the course of trial.

(3.) Of course, Mr. Mangukia, has argued at length on legal issues as well as on factual matrix, however, he has concentrated his argument mainly on three aspects. The learned Judge ought to have held that on the date of filing of the complaint the Drugs (Price Control Order, 1987 was repealed by new Control Order i.e. Drugs (Price Control), Order 1995 with effect from 6th January, 1995, no action was initiated against the accused under Drugs (Price Control), Order, 1987 and therefore the things referred to in sub-clause (2) of paragraphs 7 only were saved. The prosecution would not survive on account of alleged violation of 'repealed' Drugs (Price Control) Order, 1987. It is in evidence that accused were of the view that on the date of application of the Drugs (Price Control) Order, 1987 they were already manufacturing the very drug formulation i.e. Quinine Tablets 300 under the licence of manufacturing and as they had not started manufacturing of that tablet after application of Drugs (Price Control), Order, 1995 and therefore it was not necessary for the accused to get the price approved from the authority. Even, otherwise, keeping that view they had already requested to the competent authority by a written application sent in a format that their price structure of Quinine Tablet 300 should be accepted as mentioned in the schedule and necessary consent be sent to them. This document is at Exh. 27. It was sent by Registered Post A. D. to the competent authority and the Registered A. D. Slip is at Exh. 25. So, keeping the scheme of General Provision regarding Price Formulations i.e. paragraph 10 of Drugs (Price Control), Order, 1987 on the date of inspection, price structure is sent in the month of August 1994, could have been construed as approved price structure and so on the date of prosecution or say on the date of visit i.e. 31st March, 1995, the M. R. P. tag could not have been said or to be treated as price 'not approved' by the competent authority. The complainant, Shri M. K. Sureja, had no authority to institute a criminal prosecution for the offence punishable under Section 7 read with Section 3 of the Essential Commodities Act because he was not authorized by the State Government to file a complaint. He cannot be construed as the aggrieved person within the meaning of Section 11 of scheme of Essential Commodities Act. He cannot institute prosecution as public servant within the meaning of Section 21 of the Indian Penal Code read with Section 11 of the Essential Commodities Act. So, on much prosecution, the learned trial Judge ought not to have taken even cognizance and in an illegally instituted prosecution, the accused could not have held guilty of the charge levelled against him. Merely, because the accused had faced the charge, cannot be construed as waiver of such legal important plea. This should be treated as serious prejudice to accused.