Bombay High Court
Lala Mohd. Hanif Mohd. Umar (Expired) … vs The State Of Mah. Thr. Drugs Inspector … on 21 January, 2025
2025:BHC-NAG:612
Judgment
343 apl397.23
1
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY, NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.397 OF 2023
1. Shri Lala Mohmed Hanif Mohmed
Umar,
(Expired)
Ex-partner of M/s.Pulse Pharma
Manufacturing Company
Lala Estate Idar Highway Road,
Savgadh Himat Nagar (Gujrat).
and r/o Simnan Street Pologround
Himatnagar, Subarkantha (Gujarat)
(original accused No.1)
through LR Abdul Gani Mohmed Umar Lala
aged about 48 years old,
relation : brother of applicant No.1.
2. Smt.Doi Mehjabin Mohmed Ishak
Manufacturing Chemist of M/s.
Pulse Pharma Manufacturing
Company
SN 553 Lala Estate Idar Highway
Road, Savgadh Himatnagar,
Subarkantha (Gujarat),
(original accused No.2).
3. Smt.Lala Rubinabegam Mohmed
Hanif,
quality Control Chemist of M/s.
Pulse Pharma Manufacturing
Company
553, Lala Estate Idar Highway Road
.....2/-
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2
Savgadh Himatnagar, Subarkantha
(Gujarat),
original accused No.3.
4. M/s.Pulse Pharma Manufacturing
Company
SN 553, Lala Estate Idar Highway
Road, Savgadh Himatnagar
(Gujarat)
(original accused No.4)
through its Partner Abdulgani
Mohmed Umar Lala
aged about 48 years old. ..... Applicants.
:: V E R S U S ::
The State of Maharashtra,
through
Drugs Inspector
Foods and Drugs Administration
Chandrapur, district Chandrapur,
(original complainant). ..... Non-applicants.
==============================
Shri S.S.Ghate, Counsel for Applicants.
Ms.Ritu Sharma, Additional Public Prosecutor for the Non-
applicant/State.
==============================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 10/01/2025
PRONOUNCED ON : 21/01/2025
JUDGMENT
…..3/-
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3
1. Heard learned counsel Shri S.S.Ghate for
applicants and learned Additional Public Prosecutor
Ms.Ritu Sharma for the non-applicant/State.
2. The criminal application under Section 482 of
the Code of Criminal Procedure is directed for quashing
and setting aside the prosecution in Special Case Drugs
Cosmetic Act No.2/2019 to hold and declare that no
prosecution would lie against applicants.
3. Learned counsel for applicants submitted that
deceased applicant No.1 was partner of firm M/s.Pulse
Pharma Manufacturing Company (the “Partnership
Firm”) and applicant No.2 is Manufacturing Chemist and
applicant No.3 is Quality Control Chemist. As per
averments in the application, on 28.8.2017, the Drugs
Inspector visited premises of “M/s.Kanchan Agencies”
and drawn regular sampling and also drawn sample of
“PEL APS Tablets”, Batch No.6844, manufacturing date
…..4/-
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4
3/2017 and expiry date 02/2020, ML No.G/1572,
manufactured by the Partnership Firm S.No.553, Lala
Estate, Savgadh, Himatnagar, Gujarat for test and
analysis. The Drugs Inspector prepared Form No.18 in
triplicate along with one sealed part of the said sample
and forwarded it to the Government Analyst, Drug
Control Laboratory, Mumbai. The complainant received
Analysis Report from the Government Analyst declaring
the sample is not of standard quality for reason:
“The contents of SEPRATIOPEPTIDASE in
the sample is less (i.e. 14.44 of the
labelled amount) than the permissible
limits as given in the protocol”
(permissible limit: not less than 90% of
the labelled amount).”
4. On receipt of the Government Analyst Report,
declaring that the drug is not of a standard quality, a
notice was issued to applicants. The complainant
personally visited the Partnership Firm and confirmed
…..5/-
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5
that who is the person responsible for day to day
activities of the affairs of the company and, thereafter,
filed a complaint under Section 18(a)(i) read with
Section 34 of the Drugs and Cosmetics Act. It is
submitted by learned counsel that on the basis of the
Analyst Report, the complainant has observed that the
manufactured drug is not upto the standard quality and
issued show cause notice. The applicants submitted all
documents which were demanded and, thereafter, the
complainant sought permission for prosecution. In view
of Rule 85(2) of the Drugs and Cosmetics Rules, 1945,
empowers the non-applicant to inflict punishment for
cancellation of licence or suspension of licence for a
period as he thinks fit either wholly or in respect of some
of substances. The non-applicant has elected remedy
and suspended licence of the applicants for a period of
two days. Thereafter, the prosecution has been filed in
…..6/-
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6
the month of 2019. It is further submitted that the
applicants cannot be punished twice for the same offence
as the applicants’ licence is already suspended for two
days. In such a situation, the non-applicant cannot file
the prosecution for the same purpose and in view of
Article 20(2) of the Constitution of India, the action of
the non-applicant amounts to double jeopardy and,
therefore, requires to be quashed and set aside.
5. The another ground raised was, delay in filing
the complaint.
6. The application is strongly opposed by the
State on ground that filing of the prosecution and taking
disciplinary action are two different things and,
therefore, the action of suspending the licence and
launching the prosecution do not amount to double
jeopardy. In view of that, the application deserves to be
rejected.
…..7/-
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7
7. Before adverting to the submissions, it is
necessary to see relevant provisions of the Drugs and
Cosmetics Act.
8. The prosecution is launched against the
applicants under Section 18(a)(i) of the Drugs and
Cosmetics Act, which reads thus:
“18. Prohibition of manufacture and sale of
certain drugs and cosmetics.–
From such date as may be fixed by the State
Government by notification in the Official
Gazette in this behalf, no person shall himself
or by any other person on his behalf–
(a) manufacture for sale or for
distribution, or sell, or stock or exhibit or
offer for sale, or distribute–
(i) any drug which is not of a
standard quality, or is misbranded,
adulterated or spurious;
(ii) any cosmetic which is not of a
standard quality, …..
(iii) any patent or proprietary
medicine, …..
…..8/-
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8
(iv) any drug which by means of
any statement …..
(v) any cosmetic containing any
ingredient which may render …..
(vi) any drug or cosmetic in
contravention of any of the
provisions …..
9. The penalty for manufacture, sale, etc., of
drugs in contravention of this Chapter is given under
Section 27 of the Drugs and Cosmetics Act. Section
27(d), reads as follows:
“27(d). any drug, other than a drug referred
to in clause (a) or clause (b) or clause (c), in
contravention of any other provision of this
Chapter or any rule made thereunder, shall be
punishable with imprisonment for a term
which shall not be less than one year but
which may extend to two years [and with fine
which shall not be less than twenty thousand
rupees]:”
Thus, punishment provided is not less than
one year but which may extend to two years with fine.
…..9/-
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9
10. In the case in hand, the sample was obtained
on 28.8.2017 from “M/s. Kanchan Agencies” and,
thereafter, on 7.8.2017 the complainant personally
visited the premises of the Partnership Firm and the
Analyst Report was received on 2.2.2018 and the
prosecution is launched on 16.5.2019.
11. Thus, within a period of three years, Section
468 of the Code of Criminal Procedure (Section 513 of
the BNS), which deals with bar to taking cognizance
after lapse of period of limitation, which states as under:
“468. Bar to taking cognizance after lapse of
the period of limitation. –
(1) Except as otherwise provided
elsewhere in this Code, 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 –
…..10/-
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10
(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
which is punishable with the more severe
punishment or, as the case may be, the most
severe punishment.]
12. Thus, in view of clause (c) of sub-section (2)
of Section 468 of the Code, the period of limitation shall
be three years, if the offence is punishable with
imprisonment for a term exceeding one year but not
exceeding three years. Therefore, the complaint filed is
within limitation.
…..11/-
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11
13. The decisions in the cases of State of
Karnataka vs. Vedavati, reported in 1978 Cri.L.J. 1375
and Arora Pharmaceuticals Pvt.Ltd. and another vs. State
of Himachal Pradesh, reported in 2018 SCC OnLine HP
2211, on which learned counsel for the applicants placed
reliance, are not helpful to the present case.
14. Another limb of submissions of learned
counsel for the applicants is that the principle of double
jeopardy is applicable as the applicants are already
punished for contravention of under Section 18(a)(i)
read with Section 34 of the Drugs and Cosmetics Act as
their licence was suspended by the Commissioner and
State Licensing Authority, Food and Drugs
Administration, Gujarat State by order dated 7.5.2018.
Thus, the action is already taken and the applicants are
already penalized for contravention of Section 18(a)(i)
read with Section 16(1)(a) punishable under Section
…..12/-
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12
27(d) read with Section 34 of the Drugs and Cosmetics
Act, 1940 and Rules, 1945.
15. Learned counsel for the applicants invited my
attention to Rule 85(2) of the Drugs and Cosmetics
Rules, 1945 which empowers the non-applicant to inflict
punishment for cancellation of licence or suspension of
licence for a period as he thinks fit either wholly or in
respect of some of substances to which it relates.
16. Rule 85(2) of the Drugs and Cosmetics Rules,
1945 is reproduced for reference:
“Rule 85(2). The licensing authority may, for
such licenses granted or renewed by him, after
giving the licensee an opportunity to show
cause why such an order should not be passed,
by an order in writing stating the reasons
therefor, cancel a license issued under this part
or suspend it for such period as he thinks fit
either wholly or in respect of the substances to
which it relates [or direct the licensee to stop
manufacture, sale or distribution of the said
drugs and [thereupon order the destruction of
drugs and] the stocks thereof in the presence…..13/-
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13
of an Inspector, if in his opinion, the licensee
has failed to comply with any of the conditions
of the license or with any provisions of the Act
or rules made thereunder.”
17. Learned counsel for the applicants submitted
that undisputedly the non-applicant has elected this
remedy and the applicant have been punished by
suspending the licence for a period of two days. The
prosecution has been filed in the month of May 2019
and, therefore, in view of Article 20(2) of the
Constitution of India, the action comes under the
purview of double jeopardy and, therefore, liable to be
quashed and set aside.
18. As far as factual aspects are concerned, it is
not in dispute that the deceased applicant was partner of
the Partnership firm and applicant Nos.2 and 3 are
Manufacturing Chemist and Quality Control Chemist
respectively. The prosecution was launched against them
…..14/-
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14
for contravention of for contravention of Section 18(a)(i)
read with Section 16(1)(a) punishable under Section
27(d) read with Section 34 of the Drugs and Cosmetics
Act, 1940 and Rules, 1945. Undisputedly, the sample in
question which was sent to the Government Analyst at
Mumbai was found to be of sub-standard quality for the
reason that the contents of SEPRATIOPEPTIDASE in the
sample is less 14.44 of the labelled amount than the
permissible limits as given in the protocol. The said
sample was collected from “M/s.Kanchan Agencies,
Chandrapur”. On enquiry with the same Agency, it was
found that the same was purchased from the Partnership
Firm of the applicants and, thereafter, on 7.8.2018, the
complainant has alleged to have visited in the premises
of the applicants at manufacturing premises. During the
inspection, all documents were demanded which were
provided and, thereafter, the licence for a period of two
…..15/-
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15
days of the applicants was suspended in view of 85(2) of
the Drugs and Cosmetics Rules, 1945.
19. By this petition, the question raised by the
applicants is that whether the prosecution would lie
when once the punishment is inflicted and submission of
learned counsel for the applicants is that the prosecution
would not lie in view of Article 20(2) of the Constitution
of India as a person cannot be punished more than once
for the same offence. Therefore, whether the
prosecution is to be quashed in view of Article 20(2) of
the Constitution is the moot question.
20. The fundamental right guaranteed under
Article 20(2) of the Constitution states the principle of
“double jeopardy” that a where a person has been
convicted by a court of competent the conviction is a bar
to alter criminal proceeding for the same offence.
…..16/-
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16
21. The scope and meaning of the guarantee
implied in Article 20(2) of the Constitution, has been
indicated in the decision of the Hon’ble Apex Court in the
case of Maqbool Hussain vs. The State of Bombay,
reported in (1953)4 SCR 730 wherein it is observed that
The roots of the principle, which this clause enacts, are
to be found in the well established rule of English law
which finds expression in the maxim “nemo debet bis
vexari” that a man must not be put twice in peril for the
same offence. If a man is indicted again for the same
offence in an English court, he can plead, as a complete
defence, his former acquittal or conviction, or as it is
technically expressed, take the plea of “autrefois acquit”
or “autrefois convict”. The corresponding provision in
the Federal Constitution of the U.S.A. is contained in the
Fifth Amendment, which provides inter alia: “Nor shall
any person be subjected for the same offence to be put
…..17/-
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twice in jeopardy of life and limb”. This principle has
been recognised and adopted by the Indian Legislature
and is embodied in the provisions of Section 26 of the
General Clauses Act and Section 403 of the Criminal
Procedure Code.
22. The Hon’ble Apex Court in the case of
S.A.Venkataraman vs. Union of India and ors, reported in
AIR 1954 SC 375 observed that although these were the
materials which formed the background of the guarantee
of the fundamental right given in Article 20(2) of the
Constitution, the ambit and contents of the guarantee, as
this court pointed out in the case referred to above, are
much narrower than those of the common law rule in
England or the doctrine of “double jeopardy” in the
American Constitution. Article 20(2) of our Constitution,
it is to be noted, does not contain the principle of
“autrefois acquit” at all. It seems that our Constitution
…..18/-
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18
makers did not think it necessary to raise one part of the
common law rule to the level of a fundamental right and
thus make it immune from legislative interference. This
has been left to be regulated by the general law of the
land. In order to enable a citizen to invoke the
protection of clause (2) of Article 20 of the Constitution,
there must have been both prosecution and punishment
in respect of the same offence. The words prosecuted
and punished” are to be taken not distributively so as to
mean prosecuted or punished. Both the factors must co-
exist in order that the operation of the clause may be
attracted. The position is also different under the
American Constitution. There the prohibition is not
against a second punishment but against the peril in
which a person may be placed by reason of a valid
indictment being presented against him, before a
competent court, followed by proper arrangement and
…..19/-
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19
plea and a lawful impanelling of the jury. It is not
necessary to have a verdict at all.
By referring the judgment of Maqbool Hussain vs.
The State of Bombay supra, it is further further observed
that the language of Article 20 and the words actually
used in it afford a clear indication that the proceedings in
connection with the prosecution and punishment of a
person must be in the nature of a criminal proceeding,
before a court of law or judicial tribunal, and not before
a tribunal which entertains a departmental or an
administrative enquiry even though set up by a statute,
but which is not required by law to try a matter judicially
and on legal evidence. In that case the proceedings were
taken under the Sea Customs Act before a Customs
authority who ordered confiscation of goods. It was held
that such proceedings were not “Prosecution”, nor the
order of confiscation a “punishment” within the meaning
…..20/-
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20
of Article 20(2) inasmuch as the Customs authority was
not a court or a judicial tribunal and merely exercised
administrative powers vested in him for revenue
purposes.
23. Similar is the observation by the Hon’ble Apex
Court in the case of recent decision in Gopalkrishnan vs.
State of Kerala, reported in (2022)14 SCC 323 wherein
in paragraph No.26, Article 20 of the Constitution was
considered as, “under clause (2) of Article 20, no person
shall be prosecuted and punished for the same offence
more than once. Article 20(2) of the Constitution of India
incorporates within its scope, the plea of autrefois
convict, meaning, previously convicted as known to
British jurisprudence, or the plea of double jeopardy
known to the American Constitution. However, the said
concepts are circumscribed in Article 20(2) which
provides that there should be not only a prosecution but
…..21/-
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21
also punishment in the first instance in order to operate
as a bar to a second prosecution and punishment for the
same offence. On a plain reading the of sub clause (2) of
Article 20, it is clear that the said provision bars a second
prosecution only where the accused has been both
prosecuted and punished for the same offence previously
vide S.A.Venkataraman vs. Union of India AIR 1954 SC
375. But this clause does not bar subsequent trial if the
ingredients of the offences in the previous and
subsequent trials are distinct. In Maqbook Hussain vs.
State of Bombay AIR 1953 SC 325, this Court has held
that clause (2) is not applicable unless the person has
been both prosecuted and punished”.
In paragraph No.27, it has been further observed
that There are three conditions for the application of the
clause. Firstly, there must have been previous proceeding
before a court of law or a judicial tribunal of competent
…..22/-
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22
jurisdiction in which the person must have been
prosecuted. The said prosecution must be valid and not
null and void or abortive. Secondly, the conviction or
acquittal in the previous proceeding must be in force at
the time of the second proceeding in relation to the same
offence and same set of facts, for which he was
prosecuted and punished in the first proceeding. Thirdly,
the subsequent proceeding must be a fresh proceeding,
where he is, for the second time, sought to be prosecuted
and punished for the same offence and same set of facts.
In other words, the clause has no application when the
subsequent proceeding is a mere continuation of the
previous proceeding, for example, where an appeal arises
out of such acquittal or conviction. In order to sustain a
plea of double jeopardy, it must be shown that all the
aforesaid conditions of this clause are satisfied, vide S.A.
Venkataraman.
…..23/-
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23
24. Applying the aforesaid provisions, if the facts of
the present case are considered, it would show that the
initial action of suspending the licence is by
Commissioner and State Licensing Authority, Food and
Drugs Administration, Gujarat State which is not a
judicial tribunal and suspending the licence does not
constitute judgment or order of court or judicial tribunal
necessary for the purpose of supporting a plea of double
jeopardy. It is not the action either taken before the
court of law or any judicial tribunal and, therefore, the
contention of learned counsel for the applicants that
Article 20(2) of the Constitution is attracted is not
sustainable. Though he placed reliance on the decision
in the case of Ram Nath vs. State of Uttar Pradesh and
ors, reported in 2024 SCC OnLine SC 177, the said
decision is not helpful as distinguishable on the facts. As
far as the present matter is concerned, what is prohibited
…..24/-
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24
under Article 20(2) of the Constitution is only conviction
or sentence. The punishment in this clause means
judicial penalty/punishment awarded by the criminal
court and would not include other penalties. Such is the
action or action taken by the concerned against the
applicants and being not judicial penalty contemplated
under Article 20(2) of the Constitution.
25. In this view of the matter, the application
deserves to be rejected and the same is rejected.
26. Interim relief, if any, stands vacated.
The Criminal Application stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
…../-
Designation: PS To Honourable Judge
Date: 21/01/2025 18:28:10
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