K.N.Sinha - (1.) -Heard the learned counsel for the applicants, the learned A.G.A. and learned counsel for the opposite party No. 2.
(2.) BY means of the present application under Section 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. M/s. Chemico Chemicals Private Limited and others. 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 others. 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.
(3.) 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.;