B.K. Jain and Others vs State of U.P. and Another

K.N. Sinha, J.—Heard the learned Counsel for the applicants, the learned A.G.A. and learned Counsel for the opposite party No. 2.

By means of the present application u/s 482, Cr. P.C., the applicants have challenged the complaint and the proceedings thereunder pending in the Court of Special Judge N.D.P.S. Act, Ghaziabad being Complaint Case No. 104/2002, K.K. Mishra v. Chemico Chemicals Private Limited and Ors. Complaint Case No. 104/2002.

The brief facts, giving rise to the present petition, are that in the Small Scale Unit namely, Chemico Chemicals Private Limited situate at Shahibabad district Ghaziabad, applicant No. 1 is its Managing Director, applicant No. 2 is Director, applicant No. 3 is Manager Accounts and applicant No. 4 is Manager Works. The said firm was engaged in some other business and thereafter it also undertook to manufacture Antimony Tri-Acetate (in short it will be referred to as ATA). The firm requires Acetic Anhydride (in short it will be referred to as AA) for manufacturing ATA. AA was being supplied to the firm by Dhampur Sugar Mills Limited and also by M/s. Vam Organic Ltd., Gajraula, district J.P. Nagar. The purchase register was maintained by applicant No. 3 and management and production work was being supervised by applicant No. 4. The applicant Nos. 1 and 2 were not concerned with each and every day-to-day affairs of the company. There was no complaint at all with the work of the firm. Sri Sunil Kumar, Superintendent of Narcotics Control Bureau, Varanasi, checked the firm on 3.8.2001, alongwith other officers of Narcotics Control Bureau and served notice to inspect and examine various persons in the said firm. The notice is Annexure-1 to the affidavit. According to paragraph 6 of the affidavit, nothing incriminating was recovered in the Factory site nor anything was seized. Again on 6.8.2001, the party headed by Sri Sunil Kumar, Superintendent, Narcotics Control Bureau, Varanasi, visited the factory wherein the sealed tank containing AA was available. The panchnama is Annexure-2. Nothing adverse happened since 6.8.2001 to 10.12.2001. But after lapse of four months, on 10.12.2001, the officers of opposite party No. 2 again visited the said factory premises and recorded the statement of some persons. The tank containing AA was made empty and water was filled for the measurement and Memo was prepared on 10.12.2001, which is Annexure-3. From the fact aforesaid, it is clear that in the inspection, which started from 3.8.2001 to 10.12.2001, nothing incriminating was recovered or seized from the factory premises nor any effort was made to suspend or stop the business. On 17.12.2000, a fire had taken place in the factory, the information of which was given to the Fire Officer and other concerned. The entry was made in G.D. (Annexure-5) and Senior Superintendent of Police, Ghaziabad, submitted a report (Annexure-6) to the District Magistrate and Ors. The New India Assurance Company Ltd. granted a claim of about Rs. 6.19 lacs for the said loss as is evident by Annexure-7 to the affidavit. The raw material was also destroyed in the fire and information was given to the Central Excise Department (Copy enclosed as Annexure-8). This information was also sent to opposite party No. 2.

It is after lapse of about ten months, i.e., on 30.5.2002, that a complaint was filed in the Court, which took cognizance exempting the attendance of complainant and summoning the accused without applying its mind. The accused were summoned through non-bailable warrants. A copy of the order taking cognizance and issuing non-bailable warrant is Annexure-10. The said order was passed in mechanical way. Various sections have been mentioned in the complaint but the order of the Judge (Annexure-10) is completely silent as to under what provisions of Narcotic Drugs And Psychotropic Substances Act (in short it will be referred to as N.D.P.S. Act), the cognizance was taken and the accused were summoned.

In this case, a supplementary-affidavit was also filed. From the side of opposite party No. 2, a counter-affidavit was filed against the affidavit and supplementary counter affidavit was filed against the supplementary-affidavit and ultimately a rejoinder-affidavit by the applicants.

The supplementary-affidavit was filed after the counter-affidavit of the opposite party No. 2 stating that M/s. Chemico Chemicals Pvt. Ltd. is a registered company, which is registered with Registrar of the Companies Delhi, Income Tax, Trade Tax and Central Excise Departments. The Director of Industries, Government of U.P., Ministry of Commerce has also issued a certificate of import and export. According to the complaint, the form 2 register was incomplete. The entries were made in daily consumption only upto 30.6.2001. No entry after 30.6.2001 was made in form 2 register. On checking the consignment note No. 129 dated 12.10.2000 it was found that it has not been signed by the recipients. According to the complaint there was also shortage in the stock of AA. In the complaint itself, it has been mentioned that generally Works Manager puts signature on consignment note and it was in the consignment of 12.10.2000 which has been entered in form 2 register and RG 23A Part I and has also been shown in quarterly statement submitted to the Zonal Director, Narcotics Control Bureau, Varanasi. The duplicate copy of the consignment is sent to Dhampur Sugar Mills Ltd. but by mistake the Works Manager forgot to sign the consignment note. The complaint itself shows that there was a suspected diversion of AA by the firm. According to the complaint, the accused have contravened the provisions of Section 9A and 25A of the Act besides the Clauses 3 (1), 3 (2), 4 (1) and 4 (2) of the N.D.P.S. (Regulation of Controlled Substance) Order, 1993. The applicants in supplementary-affidavit have mentioned that utilization of control and substance has to be maintained in the register called as RG-23A, Part I wherein daily balance, issue and receipt of AA are to be shown. Similarly, another register RG-I is maintained wherein daily production and sale of ATA has to be recorded on day-to-day basis. In the supplementary-affidavit, the applicants have explained the points raised in the complaint and in the counter-affidavit.

As per the counter-affidavit and supplementary counter-affidavit, generally the contents of complaint have been repeated. According to the counter-affidavit, the search was conducted under the supervision of Sunil Kumar, Superintendent, Narcotics Control Bureau, Varanasi, in the presence of applicants No. 1 and 2 and two independent witnesses. The officer checked the physical stock of AA and finished product of ATA and found that Form II Register was incomplete. The entries were made only upto 30.6.2001 in Form 2 Register and on checking the consignment note 129 dated 12.10.2000, it was found that it was not signed by the recipients. So far as the fire incident is concerned, it is incorrect and misleading. No report regarding fire incident which took place on 17.12.2000 at the factory, was given to Narcotics Control Bureau whereas it is mandatory as per para 4 (Regulation of Controlled Substance) Order, 1993 that such report should have been made. No intimation was given about the loss of 80 Kg. of AA in the incident of fire. Much emphasis has been made in the supplementary counter-affidavit regarding the alleged loss of 80 Kg. of AA and it was not reported to opposite party No. 2 contravening Para 3 (2) of the N.D.P.S. (Regulation of Control and Substance) Order, 1993. In this respect it is also submitted that contravention of Para 3 (1) (ii) and 4 (1) (ii) by the accused is evident.

Thus, the complaint was lodged by Sri K. K. Mishra, Intelligence Officer Narcotics Control Bureau, Varanasi. The complaint was mainly on four counts:- (1) Form 2 register as per N.D.P.S. (Regulation of Controlled Substance) Order, 1993 was incomplete, (2) Loss of 80 KG. of AA was not reported to Narcotics Control Bureau, Varanasi, (3) Consignment note No. 129 dated 12.10.2000 was not signed by the recipient and (4) there was a suspected diversion of 701.5 Kg. of ATA.

Learned Counsel for the opposite party No. 2 has raised certain points in the counter affidavit that summoning order is revisable and petition u/s 482, Code of Criminal Procedure is not maintainable and the Court has to see the prima facie case and not the probable defence. So far as the question of maintainability of the petition u/s 482, Code of Criminal Procedure is concerned, there is no dispute about this legal position that the petition u/s 482, Cr.,P.C. can be filed against the order summoning the accused.

The present petition was filed in the year 2002. Prior to 2002, in case of Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, , the summoning order was challenged by the petition u/s 482, Code of Criminal Procedure By the latest pronouncement of Hon''ble the Apex Court in the case of Adalat Prasad v. Roop Lal and Ors. 2004 (3) CCSC 1370: JT 2004 (7) SC 207, Subrahmaniam Sethu Raman v. State of Maharashtra, 2004 (3) ACR 2704 (SC): 2004 (3) CCSC 1492: 2005 SCC 242, it has been held that summoning order can be challenged before this Court u/s 482, Code of Criminal Procedure Thus, this argument has got no force.

So far as the question of considering of probable defence is concerned, there is no occasion for considering the defence but it has to be seen whether any such offence is made out or the complaint itself is misconceived and does not make out a case for summoning the accused. In the above background, the matter has to be considered.

Before coming to the above point of the complaint, learned Counsel for the applicant has made certain submissions, which are worthy of consideration. Learned Counsel for the applicants has submitted that there is no explanation for conducting various searches at different intervals and filing a complaint about the matter. The first search was made on 3.8.2001 by Sri Sunil Kumar, Superintendent of Narcotics Control Bureau, Varanasi. Thereafter next search was made on 6.8.2001 and lastly on 10.12.2001. The panchnama (Annexure-1) and Annexure-2 bears the date of 3rd August, 2001 and 6th August, 2001. No discrepancy was indicated therein. The office of opposite party No. 2 kept silent for a period of four months without taking any action. Further made a surprise inspection on 10.12.2001. There is no mention in the complaint that in search conducted on 3rd and 6th August, 2001, any breach of Control Order was found. The matter should have been immediately reported to the senior officer and action should have been taken immediately but after a silence of four months, the third search was conducted. The panchnama relating to third search is Annexure-3 to the affidavit. Not only this, the complaint was filed on 30.5.2002, i.e., six months after the last search and about ten months after the first search. The complaint or the counter-affidavit is without any explanation to this delay. The search and raid was conducted by Sri Sunil Kumar, Superintendent of Narcotics Control Bureau, Varanasi but the complaint has been filed by Sri K.K. Misra, Intelligence Officer, who was neither Member of the search party nor present on the spot at any time of search. Sri Sunil Kumar, after the search, had addressed a letter to the Zonal Director, Narcotics Control Bureau, Varanasi on 10.8.2001 (Annexure SA-14) in which he came to the conclusion that "during the search no AA or any other narcotic drug or psychotropic substance was found concealed anywhere in the premise except AA found in a sealed tank meant for storage of AA." Not only this Sri Sunil Kumar, Superintendent, Narcotics Control Bureau, Varanasi, sent another letter to the Zonal Director, Narcotics Control Bureau, Varanasi on 13.8.2001 (Annexure SA-16) who concluded by observing as under :

I have gone through the records of M/s. Chemico Chemicals and till date could not find any suspected diversion of Acetic anhydride by the company. The view of other I. Os who participated in search/inspection of this Unit may also be taken to come to the right conclusion.

From the inspection/ investigation of M/s. Chemico Chemicals, I have come to the conlusion that neither the M.D. nor their employees were fully conversant about the N.D.P.S. (Regulation of Controlled Substances) Order 1993 implications, penalties prescribed under N.D.P.S. Act, 1985 for not maintaining the records properly and timely.

There is a need to give wide publicity of N.D.P.S. (R.C.S.) Orders, 1993 among the manufacturers, consumers etc., and appraise them about the penalties prescribed in Section 25A of the N.D.P.S. Act, 1985 for non-compliance of the said orders. They may also be trained by organizing seminars/training of this subject. As a nodal agency, the NCB can play a great role in this direction.

It clearly shows that any of raiding party did not find any suspected diversion of AA and so far as the entry in the register was concerned, he advised to give a wide publicity to the Control Order of 1993. Not only this, the view of the letter is endorsed in letter dated 7.3.2002, written by Assistant Director (INV) to Zonal Director, Narcotics Control Bureau, Chandigarh in reply to his letter, which is Annexure RA-1 in the rejoinder-affidavit. Though this letter was in response to one letter dated 8.1.2002 by Zonal Director, Chandigarh, a general observation was made which is important. It has been written that "In case, where there is no evidence of diversion, the breach of rules has been committed for the first time, there is evidence including the private records and records prescribed by other departments to show that the chemicals have been properly accounted for and there is no discrepancy in the physical stocks, prosecution proceedings should not be taken automatically. Prosecution can however, be taken for any second or repeat violations, even then which are of a technical nature."

Thus, there is also no explanation for this as to when the leader of the raiding party found no discrepancy as per his letters referred to above (Annexure SA-14), how the prosecution was launched by Intelligence Officer and that too after about ten months.

Para 3 (1) of the N.D.P.S. (Regulation of Controlled Substance) Order, 1993 lays down that manufacturer shall maintain daily accounts of its activities in Form 1 and Form 2, as the case may be and it shall be preserved for a period of two years from the date of last entry in the register.

The search memo itself shows that Form-2 register was completed upto 30.6.2001 on the date of inspection. A parallel register RG-23 Part I is also maintained which was completed upto 31.7.2001. This register is maintained under the Excise Act regarding production and sale of ATA. Learned Counsel for the applicants has submitted that all the details were complete in this register RG-23 and if there was any intentional mistake in the entry, the register under Excise Act would also have been left incomplete. The statement u/s 67 of the N.D.P.S. Act was recorded in which the Accounts Manager has already told the raiding party that the entry in the month of July has not been made inadvertantly. The entries were made up-to-date on the spot during the inspection by the officers of Narcotics Control Bureau. Thus, it was a mere technicality without any intention.

So far as the complaint regarding not reporting the loss of 80 Kg. of AA in the fire is concerned, it is also not made out from the record. As per the allegation, the fire broke out in the factory on 17.12.2000, which was reported to the Fire Officer on 17.12.2000 (Annexure-4). The G.D. (Annexure-5) and the report of Senior Superintendent of Police (Annexure-6) and payment of compensation by the Insurance Company for the said loss (Annexure-7) are on record. Thus, the incident of fire is not a concocted story but it is proved by the record. So far as the question regarding report to Narcotics Control Bureau is concerned, para 17A of the counter affidavit is quite clear on this point and letter was sent to Narcotics Control Bureau, Varanasi and Delhi informing about the fire in A.T.A. plant. In support of this the copy of letter (Annexure SA-11) and the proof of sending the same through postal agencies (Annexure SA-11) is on record. This letter is dated 18.12.2000 addressed to the Deputy Director Narcotics Control Bureau, Varanasi Zonal Unit, Varanasi and the same were sent through ''''under postal certificate'', as provided in Clause (2) of para 3 of the N.D.P.S. (Regulation of Controlled Substance) Order, 1993. Thus the prosecution on this count is also bad and mala fide.

Thus, the third ground on which complaint is based is regarding the unsigned consignment note No. 129 dated dated 12.10.2000. This consignment was received from M/s. Dhampur Sugar Mills Ltd. According to para 4 (1) and 4 (2) of the N.D.P.S. (Regulation of Controlled Substance) Order, 1993, the consignment of controlled substance shall be moved from one place to another place only when it is accompanied by a consignment note in form 3. Para 4 (2) lays down that the Consignment Note shall be prepared in triplicate, the original and duplicate copies of the Consignment Note shall be sent alongwith the consignment to the consignee, who shall return the duplicate copy to the consignor for retention after endorsing on the original and duplicate copies the particulars of quantity received by him. The quantity of AA received under the Consignment Note No. 129 was shown in the quarterly return submitted to Narcotics Control Bureau. The copy is Annexure SA-9A. A perusal of Annexure SA-9A shows that specific date 13.10.2000 has been mentioned therein and signatures were made on the copy of M/s. Dhampur Sugar Mills Ltd. It appears that initial could not be made below the date. Thus, it is no offence at all.

So far as the fourth point regarding the suspected diversion of AA is concerned, in this regard, it was submitted that there is absolutely no prescribed standard with regard to percentage consumption of AA in production of ATA. This percentage consumption of AA will depend on number of other factors, which are interlinked with the method used in production of ATA. The complaint is almost silent on this point.

So far as taking of cognizance is concerned, it is a matter, which must be taken after application of mind. What transpires from the copy of the complaint (Annexure-9) is that a complaint was filed without any document and the Magistrate, on mere allegation set forth in the complaint dated 30.5.2002, took cognizance. It appears that Court was swayed away by the prayer of the opposite party No. 2 for issuing warrant and without giving any reason, issued the warrant at the first instance. Even the compliance of Section 204 (2) was not done. In the case of M/s Pepsy Foods Ltd. (supra) it has been held as follows:

Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

Though this is a complaint to which Proviso to Section 200, Code of Criminal Procedure applies and there was no need to examine the complainant or any witness but Section 202, Code of Criminal Procedure is not excluded before passing an order u/s 204, Code of Criminal Procedure In the present complaint, by a public servant, atleast the evidence on which the complaint was to proceed and accused were to be summoned must have been scrutinized and seen. The complaint as it is (Annexure-9) shows that no document was filed with this complaint nor anything was mentioned in the complaint that any document was filed therewith. The Court has observed about the perusal of the original record. Where was this original record, remains unanswered. The Court could see only that record which was part of the complaint.

Thus, in view of above facts and the legal position, the application u/s 482, Code of Criminal Procedure is allowed and proceedings in the Court of Special Judge, (N.D.P.S. Act) Ghaziabad in complaint Case No. 104 of 2002, K.K. Mishra Chemico Chemicals Private Ltd. and Ors. complaint Case No. 104 of 2002 is hereby quashed and any order passed thereunder is also quashed.