M/S GLAXO SMITHKLINE ASIA PVT LTD vs STATE OF KARNATAKA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 28 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL PETITION NO. 2607 OF 2024
BETWEEN:
1. M/S GLAXO SMITHKLINE ASIA PVT LTD
BHARAT YUVAK BHAVAN
NO.1, JAI SINGH ROAD,
NEW DELHI-110 001
REPRESENTED BY
MR. N.R VENKATESWARAN.
2. MR. K.K PALAN
AGED ABOUT 62 YEARS
S/O MR. KRISHNASWAMY H.S
M/S GLAXO SMITHKLINE
PHARMACEUTICALS LTD
DEVENAHALLI ROAD, OFF
MADRAS ROAD,
BANGALORE-560 049
…PETITIONERS
(BY SRI. SANDESH CHOUTHA, SENIOR COUNSEL FOR
SRI. MRINAL SHANKAR,
SRI. DHARMA TEJ KONERU,
SRI. ABHAY SHETTY,
SRI. HANUMANTHARAYA C.H, ADVOCATES)
AND:
STATE OF KARNATAKA
AT THE INSTANCE OF THE
DRUGS INSPECTOR,
DRUGS PRICE CONTROL CELL,
Digitally signed
by PANKAJA S
Location: HIGH
COURT OF
KARNATAKA
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DRUGS CONTROL DEPARTMENT,
PALACE ROAD,
BANGALORE - 5600 01.
REPRESENTED BY THE
STATE PUBLIC PORSECUTOR
HIGH COURT BUILDING
BANGALORE-01
…RESPONDENT
(BY SRI. MAHESHA P, HCGP)
THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO
QUASH THE ENTIRE CRIMINAL PROCEEDINGS IN C.C.NO.1492
OF 2003 PENDING BEFORE THE ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU RURAL DISTRICT, ARISING OUT OF
PRIVATE COMPLAINT DATED 30.09.2003 FILED BY THE
RESPONDENT FOR VIOLATIONS UNDER PARAGRAPHS 15(1)
AND 15(2) OF THE DRUGS (PRICES CONTROL) ORDER, 1995,
P/U/S 7(1)(a)(ii) OF THE ESSENTIAL COMMODITIES ACT, 1955
(ANNEXURE-B AND ANNEXURE-C).
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
ORAL ORDER
This petition is filed under Section 482 of Cr.P.C. praying
to quash the proceedings against the petitioners - accused
Nos.1 and 7 in C.C No.1492/2003, for the offences punishable
under section 7(1)(a)(ii) of the Essential Commodities Act,
1955 (for short, ‘the EC Act’) for violations under paragraphs
15(1) and 15(2) of the Drugs (Prices Control) Order, 1995 (for
short, ‘the Order, 1995’), pending on the file of the Additional
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Chief Judicial Magistrate, Bengaluru Rural District (for short,
'the learned Magistrate') and also to set aside the order dated
17.12.2019 passed in C.C No.1492/2003 by the aforesaid
learned Magistrate, whereby the learned Magistrate framed the
charges against the petitioners for the aforementioned
offences.
2. The brief facts of the case are that petitioner No.1
is a pharmaceutical company incorporated under the
Companies Act, 1956, engaged in the manufacture and import
of drugs and vaccines, while petitioner No.2 was formerly
working as an Assistant Logistics Manager at the Bengaluru
sales depot of petitioner No.1 and retired in the year 2008.
Respondent No.2, the Drugs Inspector attached to the Drugs
Price Control Cell, Bengaluru, lodged a private complaint on
30.09.2003 under Section 200 of the Cr.P.C., read with Section
11 of the EC Act, alleging violations of Paragraphs 15(1) and
15(2) of the Order, 1995, punishable under Section 7(1)(a)(ii)
of the EC Act. The allegations arose from an inspection
conducted on 21.07.2003, during which certain vaccines
supplied by petitioner No.1 were allegedly found without the
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prescribed price markings and labels. It was further alleged
that petitioner No.1 had failed to furnish the requisite price list
to local medical stores dealing in its products.
3. The learned Magistrate took cognizance of the
offences and issued summons to the accused. Aggrieved by the
said order, petitioner No.1 and accused Nos.2 to 5 approached
this Court in Crl.R.P.No.1077/2003, and by order dated
20.02.2004, the complaint was quashed insofar as accused
Nos.2 to 5 were concerned. Subsequently, the learned
Magistrate framed charges against petitioner No.2 i.e., accused
No.7 and accused No.6 on 21.03.2005 and, by judgment dated
19.07.2010, convicted them for the alleged offences and
sentenced them to undergo simple imprisonment for three
months and imposed a fine of Rs.10,000 each. In the appeal
preferred by them, the learned Sessions Court, by judgment
dated 23.07.2016, set aside the conviction and remanded the
matter to the Trial Court with a direction to implead petitioner
No.1 i.e., accused No.1 along with petitioner No.2/accused No.7
and accused No.6.
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4. Pursuant to the remand, the learned Magistrate
framed charges against the petitioners on 17.12.2019 and
recorded their pleas without recording the prosecution evidence
as contemplated under Section 244 of the Cr.P.C. Thereafter,
the learned Magistrate permitted respondent No.2 to adopt his
earlier examination-in-chief by orders dated 20.02.2020 and
12.11.2021. Both orders were challenged before this Court and
were set aside. Ultimately, by order dated 10.11.2022 passed
in Crl.P.No.10144/2021, this Court directed the learned
Magistrate to conduct a fresh examination-in-chief of PW.1 and
dispose of the matter in accordance with law.
5. Thereafter, the learned Magistrate posted the
matter for examination-in-chief of PW.1. Though the non-
availability of the material objects was noticed on 19.01.2023,
the learned Magistrate proceeded to record the examination-in-
chief of PW.1 on 29.01.2024 without the material objects and
marked exhibits which were available. Aggrieved by the same,
the petitioners have approached this Court seeking quashing of
the entire criminal proceedings against them.
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6. Heard the learned Senior counsel for the
petitioners, the learned High Court Government Pleader for
respondent No.1 - State in both the petitions.
7. The learned Senior Counsel for the petitioners,
apart from raising several other contentions, primarily
contended that the impugned order is patently illegal, as the
learned Magistrate proceeded to try a warrant case instituted
otherwise than on a police report by following the procedure
applicable to summons cases. He submitted that the private
complaint was filed under Section 200 of Cr.P.C., read with
Section 11 of EC Act, alleging violations of Paragraphs 15(1)
and 15(2) of the Order, 1995, punishable under Section
7(1)(a)(ii) of the EC Act. As the prescribed punishment extends
up to seven years of imprisonment, the case falls within the
definition of a warrant case under Section 2(x) of the Cr.P.C.
He further contended that, pursuant to the remand, the learned
Magistrate recalled the conviction warrant, issued summons to
the petitioners and, on 17.12.2019, proceeded to frame
charges and record their pleas without first recording the
prosecution evidence as required under Section 244 of the
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Cr.P.C. According to him, the failure to follow the prescribed
procedure has occasioned a failure of justice and resulted in
incurable prejudice to the petitioners. He also contended that
the learned Magistrate failed to apply judicious mind and record
reasons for framing charges in accordance with Section 246 of
the Cr.P.C., thereby acting mechanically and contrary to the
statutory scheme.
8. The learned Senior Counsel further contended that,
as reflected in the order sheet from 20.10.2023 up to
27.02.2024, the material objects, namely, the seized drugs,
were neither available nor in the custody of the Trial Court.
Placing reliance on the judgment of the Hon’ble Apex Court in
NOOR AGA Vs. STATE OF PUNJAB AND ANOTHER - (2008)
16 SCC 417 , he submitted that non-availability of the material
objects warrants an adverse inference under Section 114(g) of
the Indian Evidence Act. He argued that, in the absence of the
material objects, the continuation of proceedings would serve
no purpose, as the likelihood of conviction is bleak, and would
amount to an abuse of the process of the Court. Accordingly,
he prays to allow the petition.
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9. Per contra , the learned HCGP for respondent-State
contended that the case has a checkered history, as the
petitioners were initially convicted and have thereafter
approached this Court on several occasions raising one or the
other ground. Ultimately, by order dated 10.11.2022 passed in
Crl.P.No.10144/2021, this Court remanded the matter to the
learned Magistrate with a direction to conduct a fresh
examination-in-chief of PW.1 and dispose of the matter in
accordance with law. Accordingly, the learned Magistrate
proceeded with the examination-in-chief of PW.1, and
therefore, no procedural irregularity, as alleged by the
petitioners, has been committed. The learned HCGP, however,
fairly submitted that the report received by the learned
Magistrate indicates that the seized drugs/material objects
could not be traced in the property room of the Trial Court and
that the said issue has to be dealt with by the Trial Court in
accordance with law. Nevertheless, the non-availability of the
material objects, by itself, is not a ground to quash the
proceedings. Accordingly, he prays to dismiss the petition.
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10. I have given my anxious consideration to the
submission made by the learned counsel for the respective
parties and also perused the entire materials on record.
11. The first limb of the argument advanced by the
learned Senior Counsel for the petitioners is that the learned
Magistrate has failed to follow the procedure prescribed for the
trial of warrant cases. In the present case, respondent No.2
lodged a private complaint under Section 200 of the Cr.P.C.,
read with Section 11 of EC Act, alleging violations of
Paragraphs 15(1) and 15(2) of the Order, 1995, punishable
under Section 7(1)(a)(ii) of EC Act. The offences are punishable
with imprisonment for a term extending from three months up
to seven years and with fine. Hence, the case falls within the
ambit of a warrant case. Admittedly, the learned Magistrate
framed charges against the petitioners on 17.12.2019.
Thereafter, pursuant to the order dated 10.11.2022 passed by
this Court in Crl.P.No.10144/2021, the learned Magistrate
proceeded to record the examination-in-chief of PW.1.
12. Section 244 of Cr.P.C is reproduced below for the
ease of reference :
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“ Section 244. Evidence for
prosecution
(1) When, in any warrant-case instituted
otherwise than on a police report the
accused appears or is brought before a
Magistrate, the Magistrate shall proceed to
hear the prosecution and take all such
evidence as may be produced in support of
the prosecution.
(2) The Magistrate may, on the application of the
prosecution, issue a summons to any of its
witnesses directing him to attend or to
produce any document or other thing.”
13. On a plain reading of the aforesaid provisions, it is
clear that, in a warrant case instituted otherwise than on a
police report, the Magistrate is required to hear the prosecution
and record the evidence before proceeding to frame charges,
upon being satisfied that there are grounds for presuming that
the accused has committed an offence. The accused is also
entitled to seek discharge under Section 245 of the Cr.P.C.
before the charges are framed. In the present case, the learned
Magistrate framed charges against the petitioners without first
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recording the prosecution evidence, thereby depriving them of
their statutory right to seek discharge. Hence, the procedure
adopted by the learned Magistrate suffers from a material
irregularity. This view is fortified by the judgment of the
Hon'ble Apex Court in the case of SUNIL MEHTA AND ANOTHER
Vs. STATE OF GUJARAT AND ANOTHER - (2013) 9 SCC 209 and in
the case of AJOY KUMAR GHOSE Vs. STATE OF JHARKHAND AND
ANOTHER - (2009) 14 SCC 115 . Accordingly, the first limb of the
contention raised by the learned Senior Counsel for the
petitioners is tenable.
14. The second limb of the argument advanced by the
learned Senior Counsel for the petitioners is that the
continuation of the criminal proceedings would be a futile
exercise, as the material objects, namely, the drugs seized in
the present case, are lost and are no longer available in the
custody of the Trial Court. In this regard, this Court, by order
dated 30.09.2026 directed the learned Magistrate to submit a
report regarding the availability of the material objects seized
in the present case. Pursuant to the said direction, the learned
Magistrate submitted a report dated 14.10.2026, stating that
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he, along with the Sheristedar, the clerk of the property room
and the police constable, visited the property room on
08.10.2026. However, despite such inspection, the seized
property could not be traced in the property room. Thus, it is
evident that the material objects seized in the present case are
not available in the custody of the Trial Court.
15. In such circumstances, as rightly contended by the
learned Senior Counsel for the petitioners, the matter requires
consideration in the backdrop of the judgments of the Hon'ble
Apex Court in Noor Aga supra and MADHAVRAO JIWAJIRAO
SCINDIA & OTHERS Vs. SAMBHAJIRAO CHANDROJIRAO ANGRE &
OTHERS - (1988) 1 SCC 692 .
16. Further, in the present case, the material objects
are none other than the samples of medicines/drugs allegedly
seized during the inspection. Their production and proof
assume significance, as they constitute primary physical
evidence for establishing the factum of seizure and the alleged
commission of the offences. Therefore, the non-availability of
the material objects and its consequential impact on the
prosecution case are matters of considerable significance,
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which cannot be overlooked. However, these aspects of the
matter has to be considered by the learned Magistrate. Hence,
I proceed to pass the following:
ORDER
(i) The criminal petition is allowed in part.
(ii) The order dated 17.12.2019 framing
chargesagainst the petitioners-accused Nos.1
and 7 is hereby set aside.
(iii) The matter is remitted to the learned
Magistrate to proceed afresh from the stage of
recording prosecution evidence under Section
244 of the Cr.P.C., in accordance with law.
(iv) The petitioners-accused Nos.1 and 7 are
at liberty to file an appropriate application
seeking discharge. If any such application is
filed, the learned Magistrate shall consider the
same on its merits, keeping in view the
observations made hereinabove, the judgments
of the Hon'ble Apex Court referred to supra and
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the report regarding non-availability of the
seized material objects.
(v) All contentions are left open to be urged
before the Trial Court in accordance with law.
SD/-
(RAJESH RAI K)
JUDGE
PKS
List No.: 1 Sl No.: 0