1 2025:CGHC:61960 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2482 of 2025 1 - Dr. Rajesh Thakare S/o Ramchandra Thakare Aged About 57 Years Occupation Service R/o Shree Baidyanath Ayurved Bhawan Pvt. Ltd, Great Nag Road, Nagpur, Maharashtra. 2 - Ramesh Chandra S/o Shersingh Sharma Aged About 62 Years Occupation Service R/o Shree Baidyanath Ayurved Bhawan Pvt. Ltd, Great Nag Road, Nagpur, Maharashtra. 3 - Anil S/o Sajjan Dave Aged About 66 Years R/o 60, Professor Layout Hingna Road Tea Point, Nagpur, Maharashtra. ... Petitioner(s) versus State Of Chhattisgarh Through District Ayurved Officer, Ayurved Office, Janjgir-Champa, District Janjgir-Champa C.G. ---- Respondents ----------------------------------------------------------------------------------------- For Petitioner : Mr. Rajeev Shrivastava, Sr. Advocate with Ms. Kajal Chandra, Advocate. For Respondent-State : Mr. Ajit Singh, GA. ----------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 19.12.2025 2 1. The petitioner has filed this petition under Section 528 of the BNSS, 2023 being aggrieved by order dated 01.08.2025 passed by learned 4th Additional Session Judge, Janjgir, District Janjgir Champa (C.G.) in Criminal Revision No.23 of 2025, whereby the Revisional Court affirmed the order dated 10.05.2023 passed by the Chief Judicial Magistrate, Janjgir issuing process in Complaint Case No.472/2023 for violation of Section 33EE(a) and (f) which is punishable under Section 33-I (1) (a)(ii) of the Drugs and Cosmetics Act, 1940, (for short, ‘Act of 1940’). 2. Relevant facts for disposal of this petition is that on 13.11.2018, Dr. Yashpal Singh Dhruv, the then District Ayurved Officer and Drug Inspector, Janjgir-Champa, Chhattisgarh, collected 10 samples of Ayurvedic medicines under the Act of 1940 from a medical store named Shri Supplier, near Sabzi Mandi, DD Plaza, Janjgir. One of the samples "Saindhwadi Tel" with Batch No.175210003 (manufactured in Jan 2018, expiry Dec 2020), was sent for testing via Letter No.2018/2397-99 dated 16.11.2018 to the Government Analyst, Drugs Testing Laboratory and Research Centre, Raipur. The Government Analyst, vide Form 13A, issued Test Report No. 2019/695 dated 28.02.2019, declaring "Saindhwadi Tel" as substandard as the sample failed to meet required standards. On receiving the report, the complainant intimated the manufacturer of the drug, Shri Baidyanath Ayurved Bhawan Pvt. Ltd., Nagpur, by letter no. Letter No.0/O.Ni./2019/545-47 dated 25.05.2019, to get 3 the second part of the sample tested from Appellate Laboratory, PLIM, Ghaziabad, and to appear before the Sessions Court, Janjgir-Champa alongwith the test fee. Owner of said manufacturer company did not appear and a request for prosecution sanction was sent to the Competent Authority (Drug Controller and Director, AYUSH Directorate, Chhattisgarh); said sanction was received and after receiving the prosecution sanction on 30.10.2019, the Drug Inspector filed a complaint before the Sessions Judge, Janjgir, against the petitioners for violation of Section 33EE(a) and (f) which is punishable under Section 33-I (1) (a)(ii) of the Act of 1940. The learned Sessions Court, Janjgir on receiving the complaint, vide its order dated 07/07/2022 returned the complaint with a direction to file the complaint case before the competent Court and in furtherance of said direction, complaint case was filed before the Chief Judicial Magistrate, Janjgir on 11/07/2022. Vide its order dated 10/05/2023, the Chief Judicial Magistrate, Janjgir registered a Complaint Case No.472/2023 against the petitioners and issued process against the petitioners for violation of Section 33EE(a) and (f) which is punishable under Section 33-I (1) (a)(ii) of the Act of 1940. Being aggrieved by the order of issuance of process, the petitioners filed a revision before the Sessions Judge, Janjgir. Learned Sessions Judge vide its order dated 01.08.2025 dismissed the revision of the petitioners without considering the grounds. Hence, this petition. 4 3. Learned counsel for the petitioner contended that contrary to high norms and traditions of the Judicial Proprietary, the impugned order was passed by the learned Session Judge who retains jurisdiction over the pending complaint, while his posting as Chief Judicial Magistrate, Janjgir, as such, learned Session Judge has no jurisdiction to entertain, hear and decide the revision of the petitioners. Learned Revisional Court erred in upholding the order of the trial Court despite the fact that the Chief Judicial Magistrate failed to demonstrate any application of judicial mind to the specific requirements of the offence under Sections 33EE(a) and (f) punishable under Section 33-I (1) (a)(ii) of the Act of 1940. Learned Revisional Court failed to appreciate that the Government Analyst's report only records a deviation in Refractive Index Parameters and does not allege the presence of any filthy, putrid or decomposed substance, as required under Section 33EE (a) or (f). Learned Courts below without reference to the essential ingredients of the alleged offence, issued the process against the petitioners. Mere non-compliance with testing parameters of Ayurvedic medicines does not automatically constitute an offence of adulteration under the Act of 1940. The impugned order overlooks the legal position that Chapter IVA, governing Ayurvedic drugs, does not define standard quality" akin to Chapter IV applicable to allopathic drugs. Hence, the application of Sections 33EE(a) or (f), which are tailored for specific types of adulteration 5 in allopathic drugs, is misplaced and ultra vires. The proceedings are vitiated for non-compliance with Section 34 of the Act of 1940, which mandates that no person can be held vicariously liable unless the company is also arraigned as an accused. The company that manufactured the drug has not been made a party, hence, the prosecution of its directors/officers is non-maintainable in law, as upheld in Aneeta Hada v. Godfather Travels [(2012) 5 SCC 661. The Revisional Court has erroneously held that detailed reasoning is not necessary under Section 204 CrPC, while brevity is permissible, there must be an indication that the Magistrate examined whether the necessary elements of the offence are present. The order is mechanical and devoid of any discussion on such aspects. The Revisional Court incorrectly postponed all considerations-including the applicability of the offence, existence of criminal intent and role of accused to the stage of trial. It failed to recognize that issuance of process is a serious step that should be resorted to only when the ingredients of the alleged offence are clearly satisfied on the face of the complaint and documents. Complaint is entirely silent on any knowledge, intention or negligence on the part of the revisionists, which is a critical element for fastening liability under the Act and absence of any such averment renders the complaint defective and liable to be dismissed at the threshold. In order to challenge the Lab Report a Second Sample has to be provided to the petitioners but the same 6 was never provided to the petitioners. The prosecution case is prima facie baseless and the continuation of same would be illegal, as no proper opportunity to test the sample as provided in Section 23 of the Act of 1940, was given to petitioners. Petitioners Nos.1 to 3 cannot be prosecuted under Sections 33EE(a) & (f) punishable under Section 33-1 (1)(a)(ii), which requires the medicine to be filthy, putrid, decomposed, or adulterated in a way that reduces its quality or efficacy and in present case no allegation of filthy or decomposed content and quality-reducing adulterants if found. Only on the basis of the government analyst's report that the sample didn't meet refractive index standards as per API(GOI) is insufficient and prosecution under Section 33EE(a) & (f) is illegal and untenable. Even if the analyst's report is taken at face value, it only shows the drug is not of "Standard Quality", which has no definition under Chapter IV-A of the Act (applicable to Ayurvedic medicines). The Ministry of AYUSH Guidelines clearly state that where defects are minor (even if the drug is NSQ), administrative actions like, Suspension, Cancellation or Compounding of offences should be preferred over prosecution. The complainant failed to follow these guidelines and opted for unwarranted prosecution, which is bad in law. The prosecution arrayed only the Petitioners and not the employer company and the criminal liability of directors/officers cannot arise unless the company is also prosecuted. As held in Aneeta Hada (supra), 7 vicarious liability in criminal law must be explicitly provided by statute and can't be presumed. The learned Chief Judicial Magistrate failed to analyse whether the ingredients of Sections 33EE(a) & (f) of the Act of 1940 were satisfied or how the analyst's observation about refractive index met the threshold of impurity or reduced efficacy. No overt act or specific role is attributed to Petitioners 1 to 3 in the complaint, nor is there any allegation that they were in charge of the company's business at the time of offence. Thus, liability under Section 34 of the Act does not arise. The Petitioners have been arraigned solely because they are officers of the company, without any allegation of direct involvement or specific act, which is a travesty of justice. The continuation of the present proceedings amounts to abuse of the process of law and would cause unnecessary harassment to the Petitioners. As per the Government Analyst report dated 28/02/2019, the refractive index of the seized sample at 40 degree C was 1.4718 and as per the Amendment List-1 (2023) to Ayurvedic Pharmacopoeia of India (API), Part I and II, notification dated 21.12.2023, the permissible refractive index of the Saindhavadya Taila at 40 degree C is 1.4700 to 1.4810 and, thus. no offence is made out against the petitioners. Hence, petitioners pray for quashment of order dated 01/08/2025 (Annexure P-1) passed in Criminal Revision No. 23 of 2025 as well as the entire proceedings of the Complaint Case No.472/2023 registered for 8 violation of Sections 33 EE (a) and (f), which is punishable under Section 33-1 (1)(a)(ii) of the Act of 1940, pending before the Chief Judicial Magistrate, Janjgir District Janjgir Champa (C.G.). 4. Learned counsel for the respondent/State contended that all the adverse allegations made against the State in the instant petition and the contentions advanced by the petitioners are without sum and substance. Complaint case against the petitioners has been registered and the learned Chief Judicial Magistrate, Janjgir, District Janjgir-Champa has issued process against the petitioners for violating Section 33 EE(a) and (f), which is punishable under section 33-I(1)(a)(ii) of the Act of 1940. Learned 4th Additional Sessions Judge, Janjgir, District Janjgir-Champa (CG) after perusing and examining the relevant documents made observation that there is no evidence with regard to the commission of alleged offence and the matter is at initial stage and they have failed to make out any case with regard to set-aside the proceeding pending before the Trial Court and accordingly, rejected the revision of the petitioners vide order dated 01.08.2025. Complaint Case No.472/2023 is still pending before the Court of Chief Judicial Magistrate, Janjgir, District Janjgir-Champa (CG), therefore, at this stage, the instant petition is premature and liable to be dismissed at the threshold. The petitioners have failed to make out any ground for interference by this Court. It is well settled law laid down by the Hon'ble Supreme Court in the case of 9 'State of Haryana Vs. Bhajanlal' (AIR 1992 Supreme Court 604), that the proceedings relating to cognizable offences cannot be interfered except on certain grounds enumerated by the Apex Court in the said judgment. It is evident that, none of the grounds mentioned by the Hon'ble Supreme Court in the said judgment are attracted in the present case. 5. Heard learned counsel for the parties and perused the petition including the order of Court below. 6. On perusal of order of cognizance taken by learned Chief Judicial Magistrate, Janjgir, it goes to show that on 10.05.2023 learned CJM has ordered that prima facie case is made out against the petitioner for violation of Section 33EE(a) and (f) which is punishable under Section 33-I (1) (a)(ii) of the Act of 1940 and Rules 1945. Section 34 mandates that no person can be held vicariously liable unless the company is also arraigned as an accused, however, it is an admitted position that the complainant has not impleaded the company/firm (who manufactured the drug) as a party to the proceedings. 7. For ready reference, relevant Sections of the Act of 1940 reads as: “Section 33EE. Adulterated drugs.— For the purposes of this Chapter, an Ayurvedic, Siddha or Unani drug shall be deemed to be adulterated,— (a) if it consists, in whole or in part, of any filthy, putrid or decomposed substance; or 10 (b) if it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or (c) if its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or (d) if it bears or contains, for purposes of colouring only, a colour other than one which is prescribed; or (e) if it contains any harmful or toxic substance which may render it injurious to health; or (f) if any substance has been mixed therewith so as to reduce its quality or strength. Explanation.—For the purpose of clause (a), a drug shall not be deemed to consist, in whole or in part, of any decomposed substance only by reason of the fact that such decomposed substance is the result of any natural decomposition of the drug: Provided that such decomposition is not due to any negligence on the part of the manufacturer of the drug or the dealer thereof and that it does not render the drug injurious to health. 33-I. Penalty for manufacture, sale, etc., of Ayurvedic, Siddha or Unani drug in contravention of this Chapter. —Whoever himself or by any other person on his behalf— (1) manufactures for sale or for distribution— (a) any Ayurvedic, Siddha or Unani drug— 11 (i) deemed to be misbranded under section 33E, (ii) deemed to be adulterated under section 33EE, or (iii) without a valid licence or in violation of any of the conditions thereof, as required under section 33EEC, shall be punishable with imprisonment for a term which may extend to one year and with fine which shall not be less than twenty thousand rupees or three times the value of the drugs confiscated, whichever is more; (b) any Ayurvedic, Siddha or Unani drug deemed to be spurious under section 33EEA, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than fifty thousand rupees or three times the value of the drugs confiscated, whichever is more: Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year and of fine of less than fifty thousand rupees or three times the value of the drugs confiscated, whichever is more; or (c) any Ayurvedic, Siddha or Unani drug in contravention of the provisions of any notification issued under section 33EED shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees or three times the value of the drugs confiscated, whichever is more. (2) contravenes any other provisions of this Chapter or 12 of section 24 as applied by section 33H or any rule made under this Chapter, shall be punishable with imprisonment for a term which may extend to six months and with fine which shall not be less than ten thousand rupees. 33EEB. Regulation of manufacture for sale of Ayurvedic, Siddha and Unani drugs.-- No person shall manufacture for sale or for distribution any Ayurvedic, Siddha and Unani Drug except in accordance with such standards, if any, may be prescribed in relation to that drug. Section 34. Offences by Companies.-- (1). Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or 13 connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purposes of this section- (a) "company" means a body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm." 8. It is pertinent to mention here that the Government Analyst's report only records a deviation in Refractive Index Parameters and does not allege the presence of any filthy, putrid or decomposed substance, as required under Sections 33EE (a) or (f) of the Act of 1940. Chapter IVA, governing Ayurvedic drugs, does not define standard quality" akin to Chapter IV applicable to Allopathic drugs. Before issuing the notice under Section 204 of Cr.PC, there must be an indication that learned Magistrate examined whether the necessary elements of the offence are present. Even if the analyst's report is taken at face value, it only shows the drug is not of "Standard Quality", which has no definition under Chapter IV-A of the Act (applicable to Ayurvedic medicines). Before issuing the process, learned CJM shall analysed whether the ingredients of Sections 33EE(a) & (f) of the Act of 1940 satisfied or how the analyst's observation about refractive index met the threshold of 14 impurity or reduced efficacy. If the drugs is sub-standards of Ayurvedic, Section 33EEB can be attracted, however, it is nowhere stated that on which basis said drugs is sub-standard. 9. Learned Revisional Court observed that all the objections raised by the petitioners is subject of merits of the case, this Court is dissatisfied with said finding because government Analyst's report not shows that medicines to be filthy, putrid, decomposed or adulterated in any that reduces its quality of efficacy. 10. As per Section 34 of the Act of 1940, no person can be held vicariously liable unless the company is also arraigned as an accused, however, the company (who manufactured the drug) is not made a party in this case. The petitioners have been arraigned in this case solely because they are the officers of the Company. 11. For the foregoing reasons and discussions, this Court considers it appropriate to remand the matter to the concerned Chief Judicial Magistrate for fresh consideration of Complaint Case No. 472/2023. 12. For the foregoing reasons/discussions, this Court finds it appropriate to remand the matter to the concerned Chief Judicial Magistrate for fresh consideration of Complaint Case No.472/2023 and, thereafter, pass a fresh order in accordance with applicable laws/rules. 13. Accordingly, the impugned order dated 01.08.2025 (Annexure P-1) passed by learned Session Judge as well as order of cognizance dated 10.05.2023 (Annexure P-3) passed by learned CJM are 15 hereby quashed/set aside. The matter is remanded to the learned Chief Judicial Magistrate for fresh consideration of Complaint Case No.472/2023. The parties will be at liberty to raise all objections available to them before the concerned Magistrate. The learned Chief Judicial Magistrate, after affording sufficient opportunity of hearing to the petitioners as contemplated under Section 223 of the BNNS, 2023, shall proceed to pass a fresh order in accordance with the relevant law, rules, and regulations. 14. In the result, the instant petition stands allowed to the extent indicated hereinabove. CC as per rules. Sd/- (Arvind Kumar Verma) Judge J/-