A.F.R.

Neutral Citation No. - 2025:AHC:86264

Judgment reserved on 15.5.2025

Judgment delivered on 19.5.2025

Court No. 37

Case : WRIT C No. 2373 of 2024

Petitioner : Ms Marion Biotech Private Limited

Respondent : State Of Up And 5 Others

Counsel for Petitioner : Neeja Srivastava,Sr. Advocate,Veerendra

Singh

Counsel for Respondent : A.S.G.I.,C.S.C.,R.P.S. Chauhan

Hon'ble Dinesh Pathak,J.

1.Heard Sri V.P. Srivastava (Senior Advocate) assisted by Sri

Veerendra Singh and Neeja Srivastava, learned counsel for the

petitioner and Sri Manish Goyal (Senior Advocate), learned

Additional Advocate General, assisted by Sri A.K. Goyal, learned

Additional Chief Standing Counsel for the State respondents Nos. 1 to

5 as well as Sri Shashi Prakash Singh (Senior Advocate), Additional

Solicitor General of India, assisted by Sri R.P.S. Chauhan, learned

counsel for respondents No. 6.

2.Petitioner is aggrieved with the order dated 4.10.2023

(Annexure no.16) passed by the Appellate Authority/Special Secretary

Food, Safety and Drug Administration, State of U.P. (respondent

no.2), whereby review application dated 4.10.2023 moved on behalf

of the Assistant Commissioner (Drugs) has been allowed and previous

order dated 11.8.2023 passed in Appeal No.1005 of 2023 under Rule

85(3) of The Drugs and Cosmetics Rules, 1945 (in brevity 'Rules

1945') has been suspended, and the manufacturing company

(petitioner) has been directed to produce the certified copies of the

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orders passed by different courts of Republic of Uzbekistan and submit a

compliance report to the Drug Licensing-Cum-Controlling Authority of

Uttar Pradesh and Drug Controller General of India after enforcing the

process of Corrective and Preventive Action (CAPA).

3.Facts culled out from the record are that petitioner is a private

limited company having its manufacturing unit at B-48-49, Sector 67,

District Gautam Budh Nagar. He has been granted drugs license in Form

25 and Form 28 under the provisions of Rules 1945 to manufacture the

drug both for indigenous and foreign sales. In pursuant to the license

issued by the competent authority, he has been permitted to manufacture

tablets, capsules and syrups with various active ingredients. Present writ

petition relates to the manufacturing of DOK-1, Max tablets and Syrups

having active pharmaceutical ingredients of Paracetamol BP 500 mg,

Guaifenesin BP 200 mg and Phenylethrine Hydrochloride BP 10 mg. By

letter dated 29.9.2022 (Annexure no.3), he has been permitted to

manufacture additional drug item (quantity based) only for the purposes

of export. On the information received from the authorities concerned qua

death of 15 children in Samarkand, Republic of Uzbekistan owing to

consumption of DOK-1 Max Syrup, the Joint Inspection Team of Central

and State Drug Authorities have conducted several inspections at the

factory premises of the petitioner between 27.12.2022 to 12.1.2023 and

collected samples of drugs for the purposes of testing and analysis.

Subsequently, show cause notice dated 30.12.2022 has been issued to the

petitioner, under Rule 85(2) of Rules 1945, as to why his drugs license

(Form 25 and Form 28) should not be cancelled/suspended because of

violation of the license conditions as enunciated under Rule 74 and 78 of

the Rules 1945. Petitioner has filed his reply dated 13.1.2023. However,

in the meantime, samples collected by the Joint Inspection Team has been

sent for testing and analysis, and its report has been communicated to the

petitioner by subsequent notice dated 3.3.2023 (Annexure No.7) and

4.3.2023 (Annexure No.8) with an observation that as per test reports

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dated 1.3.2023 and 14.1.2023 respectively sent by Government Analyst,

Regional Drugs Testing Laboratory (RDTL), Chandigarh, samples are

found "Not of Standard Quality" for the reasons that samples contains DI

Ethylene Glycol (DEG) and Ethylene Glycol (EG) more than required

standard.

4. Drugs Licensing-Cum-Controling Authority U.P. has cancelled the

drugs licence of the petitioner (Form 25 and Form 28) by order dated

13.3.2023 (Annexure no.9) without waiting period of 28 days as

enunciated under Section 25 (3) of the Drug and Cosmetics Act 1940 (in

brevity Act, 1940). Having been aggrieved with the order dated

13.3.2023, petitioner has preferred an appeal dated 1.6.2023 under Rule

85 (3) of Rules 1945. Appellate Authority (respondent no.2) has partly

allowed the appeal, with the assistance of departmental team constituted

for this purpose, vide order dated 11.8.2023 (Annexure no.13) and revived

the drugs license of the appellant (petitioner) except the manufacturing of

drugs wherein Propylene Glycol (P.G.) are permitted to be used. In

pursuance of the appellate order dated 11.8.2023, Drug Licensing Cum

Controlling Authority U.P. has issued permission letter dated 14.9.2023

(Annexure no.14) for manufacturing the drugs excepting those wherein

Propylene Glycol (P.G.) is a required ingredient. At later stage, Assistant

Commissioner (Drugs) Headquarters, Food Safety and Drug

Administration, U.P., Lucknow, has filed review application dated

4.10.2023 against the appellate court's order dated 11.8.2023. Appellate

Authority (respondent no.2) has allowed the review application and

suspended the order dated 11.8.2003 passed in Appeal No. 1005 of 2023

with a direction that manufacturing company (petitioner) shall produce

the certified copies of the orders passed by different courts of Uzbekistan

and submit a report to the Drugs Licensing and Controlling Authority,

U.P. and Drug Controller General of India after implementing the process

of Corrective and Preventive Action (C.A.P.A.), vide order impugned

dated 4.10.2023, which is under challenge before this Court.

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5. Learned counsel for the petitioner submits that:-

5(i) The appellate authority, under Rules 1945, has inherent lack of

jurisdiction to review its previous order dated 11.8.2023, inasmuch as

neither in the Act 1940 nor in the Rules 1945 there is any power conferred

on appellate authority to review its order. Power of review cannot be

exercised without any statutory provision. It has to be specifically, and by

necessary implications, proved under the provisions of law to enable the

authority concerned to exercise power of review.

5(ii) Even otherwise, there is no mistake or error apparent on the face of

record, or discovery of any new or important material or evidence which

despite due diligence was not within the knowledge of the party seeking

review or for any other sufficient reason warranting the review of the

previous order passed by appellate authority. In support of his submission,

learned counsel for the appellant has placed reliance upon the judgment of

Naresh Kumar and Others Vs. Government (N.C.T. of Delhi), (2019) 9

SCC 416; Patel Narshi Thakershi and Others Vs. Shri Pradyuman Singhji

Arjun Singhji (1973) 3 SCC 844; Order passed by the Punjab and

Haryana High Court in the case of Manas Medicos Mansa through its

Proprietor Chaman Lal Vs. State of Punjab and Others, 2010 SCC Online

P&H 5184.

5(iii) It is next submitted that once the appellate authority has decided the

appeal on merits under Rule 85(3) of Rules 1945, it become functus

officio from the date of order passed in the appeal, inasmuch as appellate

order became final between the parties subject to remedy available in the

statute and he has inherent lack of jurisdiction to review his previous

order.

5(iv) Learned counsel for the petitioner has also laid emphasis on the

provision enunciated under Section 25(3) of the Act 1940, wherein 28

days' time has been accorded to the aggrieved person (manufacturer) to

file any objection along with relevant documents against the report of

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analyst. In the present matter, as per submission advanced by learned

counsel for the petitioner, statutory period has not been exhausted and

sans opportunity to file objection, petitioner's drug license has been

cancelled.

5(v) It is next submitted that review order under challenge dated

4.10.2023 has been passed sans opportunity of hearing accorded to the

petitioner, inasmuch as review application was filed on 4.10.2023 and it

has been allowed on the same day, vide an ex parte order.

6. Per contra, learned counsel for the respondents has contended that -

6(i)In the report of Government Analyst (R.T.D.L.), Chandigarh,

substance of Glycol has been found more than the permitted degree which

is disastrous for the health of children. Section 4 of the Act 1940 is

charging section wherein presumption is drawn as to the poisonous

substance. He has drawn attention of the court to Chapter IV of the Act

1940, especially, Section 16, which lays down standard of the quality of

the scheduled drugs

6(ii) He has further invited the attention of the court to Sections 17, 17(A)

and 17(B) of the Act 1940 and tried to prove that drugs manufactured by

the petitioner are substandard and, in the public interest, order of the

appellate court has rightly been reviewed.

6(iii) It is next submitted that the provisions of the Act 1940 have an

overriding effect over the rules which are subordinate piece of litigation,

therefore, remedy to file review is always available to the party concerned

(Authority) in case order has been passed in violation of provisions of Act

1940. Even otherwise, Rule 85(3) of Rules 1945 does not bar to file a

review against the appellate order. He has emphasized that legal right

enshrined under Article 19(1)(g) read with Article 19(6) of the

Constitution of India are not absolute and are subject to right to life and

personal liberty guaranteed under Article 21 of the Constitution of India.

Therefore, even assuming that there is no power of review, authority

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concerned has an inherent jurisdiction to review its order in public

interest.

6(iv) Due to false representation of the manufacturing company, the

erroneous order was passed by the appellate authority which needed to be

corrected. Accordingly, Drug Licensing and Controlling Authority, U.P.

has rightly submitted the review application before the appellate authority.

The company failed to provide the correct copy of the Inter District

Economic Court of Tashkent. It is submitted that it emerge during the

discussion that Apex Court of Uzbekistan corrected the earlier decision of

Inter District Economic Court of Tashkent dated 13.01.2023, in which the

Inter District Economic Court passed an order to destroy all the "DRUGS

UNFIT FOR USE" manufactured by the company. The Apex court

replaced the word "DRUGS UNFIT FOR USE" with the words "DRUGS

UNFIT FOR USE" DOK-1max syrup 100ml" and Ambronol Syrup 15mg/

5ml, series AAS2201 and AAS2202". The rest of the decision of the Inter

District Economic Court of Tashkent dated 13.1.2023 is unchanged. Thus,

it was found that the accused company has earlier given misleading

presentation stating that the Apex Court of Uzbekistan has banned only

two drugs, namely, Dok-1 Syrup and Ambronol Syrup and rest of

medicines are allowed. It is also came into notice, during the meeting, that

the case is still pending in the courts of Uzbekistan for final decision. In

support of his submissions learned counsel for the respondents has relied

upon the judgment passed by Hon'ble Supreme Court in Indian Bank Vs.

Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550; S.P. Chengalvaraya

Naidu (dead) by LRs Vs. Jagannath (dead) by LRs and Ors. (1994) I SCC

1; Budhia Swain and Ors. Vs. Gopinath Deb and Ors. (1999) 4 SCC 396;

United Indian Insurance Company Ltd. Vs. Rajendra Singh and Ors.

(2000) 3 SCC 581; A.V. Papayya Sastry and Ors. Vs. Govt. of A.P. and

Ors. (2009) 4 SCC 221.

6(v) Learned counsel for the respondents has tried to submit that power to

prohibit something as res extra commercium is always a legislative policy,

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therefore, authorities under their jurisdiction conferred through legislation

can examine the correctness of previous proceeding which are damaging

and against the provisions of law. In support of his submission, he has

placed reliance upon the judgment passed by the Hon'ble Apex Court in

the case of Internet and Mobile Association of India Vs. Reserve Bank of

India, (2020) 10 SCC 274.

7. Having considered the rival submissions advanced by learned counsel

for the parties and upon perusal of record, It is manifest that the issue

involve in the instant writ petition lies in a narrow compass as to "whether

appellate authority under Rule 85(3) of the Rules 1945 has got jurisdiction

to review his previous order dated 11.8.2023 passed in Appeal No. 1005

of 2023, in absence of any statutory provision for review, and became

functus officio after exercising its appellate jurisdiction."

8. Learned counsel for the petitioner has hammered the order impugned

for want of jurisdiction of the appellate authority to revisit his earlier

order and submits that once the appeal is decided finally under Rule 85(3)

of the Rules 1945, the appellate authority become functus officio and he

cannot entertain any application in the nature of review to decide the

question involve in the matter afresh. However, learned counsel for the

respondents has contended that appellate authority under the statute can

rectify his order at any time, in case he feels that the order has been

passed on incorrect facts, therefore, he cannot be considered as a functus

officio. In view of the point involved in the instant matter, as mentioned

above, it would be befitting to define the phrase “Functus Officio”.

Needless to say that any judge or quasi-judicial authority would be

considered as functus officio in the eventuality that he/she has performed

his/her duty finally in its official capacity and nothing remains to be

decided/considered/revisit on the said subject matter unless there is a legal

provision to do so. In the recent judgment of Orissa Administrative

Tribunal Bar Association vs. Union of India and others, 2023 SCC

OnLine SC 309, Hon. Supreme Court has discussed the phrase “functus

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officio”. The relevant paragraphs of the aforesaid judgment are quoted

herein below:-

107. P. Ramanath Aiyer’s The Law Lexicon (1997 edition)

defines the term functus officio as:-

"A term applied to something which once has had a life and

power, but which has become of no virtue whatsoever One who

has fulfilled his office or is out of office an authority who has

performed the act authorised so that the authority is exhausted"

108. Black's Law Dictionary (5th edition) defines the term as

follows

"Having fulfilled the function, discharged the office or

accomplished the purpose, and therefore of no further force or

authority an instrument, power, agency, etc. which has fulfilled

the purpose of its creation, and is therefore of no further virtue or

effect

109. The doctrine of functus officio gives effect to the principle

of finality. Once a judge or quasi-judicial authority has rendered

a decision, it is not open to her to revisit the decision and amend.

correct clarify, or reverse it (except in the exercise of the power

of review, conferred by law) Once a Judicial or quasi-judicial

decision attains finality, it is subject to change only in

proceedings before the appellate court

110. For instance, Section 362 of the Code of Criminal Procedure

1975 provides that a court of law is not to alter its judgment once

it is signed

"362 Court not to alter judgment. Save as otherwise provided by

this Code or by any other law for the time being in force, no

Court, when it has signed its judgment or final order disposing of

a case, shall alter or review the same except to correct a clerical

or arithmetical error."

111. In Hari Singh Mann v. Harbhajan Singh Bajwa35, this Court

recognized that Section 362 was based on the doctrine of functus

officio

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70. The section is based on an acknowledged principle of law

that once a matter is finally disposed of by a court, the said court

in the absence of a specific statutory provision becomes functus

officio and disentitled to entertain a fresh prayer for the same

relief unless the former order of final disposal is set aside by a

court of competent jurisdiction in a manner prescribed by law.

The court becomes functus officio the moment the official order

disposing of a case is signed. Such an order cannot be altered

except to the extent of correcting a clerical or an arithmetical

error."

112. The doctrine of functus officio exists to provide a clear point

where the adjudicative process ends and to bring quietus to the

dispute. Without it, decision-making bodies such as courts could

endlessly revisit their decisions. With a definitive endpoint to a

case before a court or quasi-judicial authority, parties are free to

seek judicial review or to prefer an appeal. Alternatively, their

rights are determined with finality. Similar considerations do not

apply to decisions by the state which are based entirely on policy

or expediency.

115. Turning to the present case, the appellants' argument that the

Union Government was rendered functus officio after

establishing the OAT does not stand scrutiny. The decision to

establish the OAT was administrative and based on policy

considerations. If the doctrine of functus officio were to be

applied to the sphere of administrative decision-making by the

state, its executive power would be crippled. The state would

find itself unable to change or reverse any policy or policy-based

decision and its functioning would grind to a halt. All policies

would attain finality and any change would be close to

impossible to effectuate.

114. This would impact not only major policy decisions but also

minor ones. For example, a minor policy decision such as a bus

route would not be amenable to any modification once it was

notified. Once determined, the bus route would stay the same

regardless of the demand for say, an additional stop at a popular

destination. Major policy decisions such as those concerning

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subsidies, corporate governance, housing, education and social

welfare would be frozen if the doctrine of functus officio were to

be applied to administrative decisions. This is not conceivable

because it would defeat the purpose of having a government and

the foundation of governance. By their very nature, policies are

subject to change depending on the circumstances prevailing in

society at any given time. The doctrine of functus officio cannot

ordinarily be applied in cases where the government is

formulating and implementing a policy.

115. In the present case, the State and Union Governments'

authority has not been exhausted after the establishment of an

SAT. Similarly, the State and Union Governments cannot be said

to have fulfilled the purpose of their creation and to be of no

further virtue or effect once they have established an SAT. The

state may revisit its policy decisions in accordance with law. For

these reasons, the Union Government was not rendered functus

officio after establishing the OAT."

9. In the matter of Lalit Narayan Mishra vs. State of Himachal Pradesh

and others, 2016 SCC OnLine HP 2866, Division Bench of Hon’ble

Himachal Pradesh High Court has held that "Functus officio" is a Latin

term meaning having performed his or her office. With regard to an

officer or official body, it means without further authority or legal

competence because the duties and functions of the original commission

have been fully accomplished. "Functus" means having performed and

"officio" means office. Thus, the phrase functus officio means having

performed his or her office, which in turn means that the public officer is

without further authority or legal competence because the duties and

functions of the original commission have been fully accomplished.

10. Trayner's Latin Maxims, 4th Edn. gives the expression functus officio

the following meaning “Having discharged his official duty. This is said

of any one holding a certain appointment, when the duties of his office

have been discharged. Thus a Judge, who has decided a question brought

before him, is functus officio and cannot review his own decision.”

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11. In Wharton's Law Lexicon, 14th Edn., the expression functus officio is

given the meaning: "a person who has discharged his duties, or whose

office or authority is at an end."

12. P. Ramanatha Aiyar's Law Lexicon gives the expression the meaning:

"A term applied to something which once has had a life and power, but

which has become of no virtue whatsoever. Thus when an agent has

completed the business which he was entrusted his agency is functus

officio."

13. In Black's Law Dictionary Tenth Edition, meaning of functus officio

is: "having performed his or her office (of an officer or official body)

without further authority or legal competence because the duties and

functions of the original commission have been fully accomplished." In

other words, the authority, which had a life and power, has lost everything

on account of completion of purpose/activities/act.

(Emphasis supplied)

14. Dealing with the execution proceedings, Hon’ble Single Bench of

Madras High Court in the matter of VG Naidu vs. Pahalraj Gangaram,

2016 SCC OnLine Mad 9710 has observed that till the time of limitation

subsists, there can be any number of execution applications and if statute,

provides power to correct certain account of certain kinds of errors, then

the doctrine of functus officio would be subject to such qualification and

its applicability would dependent upon the nature and extent of power

conferred on the authority functioning. It is further observed that

“principle of finality is attached to the doctrine of functus officio, but,

there are exceptions to the principle of finality. However, the court's

inherent power to set aside the judgment only be invoked in exceptional

circumstances to avoid miscarriage of justice. Fraud as is a genuine, albeit

limited, exceptions to the important principle of finality of litigation.

(Emphasis supplied)

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15. Having considered the nature and scope of functus officio, as

discussed in preceding paragraphs, in the given circumstances of the

present case, it can safely be culminated that appellate authority having

been passed the order dated 11.8.2023 became functus officio. The

moment he passed the order being an appellate authority, his appellate

power as enshrined under Rule 85 (3) of Rule 1945 comes to an end

subject to further authority or legal competence. Thus, statutory provision

of review is essential to authenticate the order passed by the reviewing

authority. The case of Naresh Kumar and Others (supra) has arisen out of

land acquisition proceeding, wherein judgment/award passed by the

appellate authority has been reviewed, subsequently, while the award has

attained finality. In this backdrop of the facts, the Hon’ble High Court has

held that power of review can be exercised only when the statute is

provide for the same and in absence of any such provision in the statute

concerned, the power of review cannot be exercised by the authority

concerned. Similar view was taken by a Full Bench of this High Court in

the matter of Shivraji and Others Vs. Deputy Director of Consolidation

and Ors, 1997 RD 562. Aforesaid matter was arising out of the

proceeding under the UP Consolidation of Holdings Act, 1953. The

Deputy Director of Consolidation (revisional authority under Section 48

of the U.P.C.H. Act) has reviewed his previous order sans any statutory

provision of review under the Act. The Full Bench of this Hon’ble High

Court has discussed the matter in detail and held that the power of review

has to be specifically conferred. The consolidation authorities particularly

the Deputy Director of Consolidation is not vested with any power of

review of his order and, therefore, cannot reopen any proceeding and

cannot review or revise his earlier order. However, as a judicial or quasi-

judicial authority, he has the power to correct any clerical mistake or

arithmetical error, manifest in his order in exercise of its inherent power

as a tribunal.

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16. Dictum of Hon’ble Supreme Court in the matter of Patel Narshi

Thakershi and others (supra) decided by Full Bench (Hon’ble Three

Judges) is important as well wherein power of review has not been

acknowledged as inherent power of any authority unless statute provides.

Relevant Paragraph No. 4 of the aforesaid judgment is quoted

hereinbelow:-

4. The first question that we have to consider is whether Mr. Mankodi had

competence to quash the order made by the Saurashtra Government on

October 22, 1956. It must be remembered that Mr. Mankodi was

functioning as the delegate of the State Government. The order passed by

Mr. Mankodi, in law amounted to a review of the order made by Saurashtra

Government. It is well settled that the power to review is not an inherent

power. It must be conferred by law either specifically or by necessary

implication. No provision in the Act was brought to our notice from which

it could be gathered that the Government had power to review its own

order. If the Government had no power to review its own order, it is

obvious that its delegate could not have reviewed its order. The question

whether the Government's order is correct or valid in law does not arise for

consideration in these proceedings so long as that order is not set aside or

declared void by a competent authority. Hence the same cannot be ignored

The Subordinate Tribunals have to carry out that order. For this reason

alone the order of Mr. Mankodi was Liable to be set aside.

17. Learned counsel for the appellant has placed reliance, as well, on the

case of Mansa Medicos (supra) decided by Hon’ble Single Judge of

Punjab and Haryana High Court, wherein judgment of Five Judges Larger

Bench of Panjab and Haryana High Court in the case of Deep Chand vs.

Additional Director, Consolidation of Holdings, Punjab, Jullunder, 164

P.L.J. 313 has been relied upon in paragraph Nos. 12 and 13, which are

quoted hereinbelow:-

12. The issue raised before a five-Judge Full Bench of this Court in

Deep Chand's case (supra) was as under:-

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"How far the Additional Director, Consolidation, was competent to

recall or review his orders on the merits in the absence of any statutory

provision conferring such power?"

13. The Full Bench, after analysing the gamut of judicial precedents on

the subject had arrived at the conclusion that power to correct apparent

clerical or similar mistakes may be presumed, but only if they do not

affect the substance of the decision; otherwise there can be no power of

review on the merits except to the extent that the statute confers it and

further held that the Additional Director of Consolidation was not

empowered to recall or review his earlier erroneous and unjust order

whenever it was discerned that the error was due to his own mistaken

view on the merits of the controversy.

18.However, it has been held by way of several judicial

pronouncements that proposition of law qua functus officio and lack of

review jurisdiction under the statutes are subject to exceptions of fraud,

collusion and misrepresentation. Any court or tribunal has inherent power

to recall or review its judgement or order, if said order or judgement is

found to be obtained by fraud/forgery, inasmuch as fraud vitiates

everything even the utmost solemn proceedings. In the case of Indian

Bank (supra) Hon'ble supreme court has held that courts in India possess

inherent power, specially under Section 151 CPC, to recall its judgement

or order if it is obtained by fraud on court. In the case of fraud on a party

to the suit or proceeding, the court may direct the affected party to file a

separate suit for setting aside the decree obtained by fraud. Inherent

powers are power which are resident in all courts, especially all superior

jurisdiction. These powers spring not from legislation but from nature and

constitution of the tribunal or courts themselves so as to enable them to

maintain their dignity, secure obedience to its process and rules, protect its

official from indignity and wrong and to punish unseemly behaviour.

Since fraud affects the solemnity, regularity and orderliness of the

proceedings of the court and also amount to an abuse of process of courts,

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the courts have been held to have inherent power to set aside an order

obtained by fraud practised upon the court.

(Emphasis supplied)

19. In the facts and circumstances of the case of Indian Bank (supra),

wherein National Consumer Dispute Redressal Commission at Delhi has

allowed the claim of respondent (in Civil Appeal before Hon’ble Supreme

Court) and same was subsequently reviewed on the application moved on

behalf of the appellant, Hon’ble Supreme Court has defined the word

‘fraud’ and ‘forgery’ in paragraph Nos. 24 to 32, which is quoted

hereinbelow:-

24. We may now turn to the next and allied questions; what is forgery,

whether forgery is a fraud and whether in the instant case, forgery and fraud

are proved?

25. Forgery has its origin in the French word "Forger", which signifies:

"to frame or fashion a thing as the smith doth his worke upon

the anvil. And it is used in our law for the fraudulent making

and publishing of false writings to the prejudice of another

man’s right (Termes de la Ley) (Stroud's judicial Dictionary,

Fifth Edition Vol. 2).

26. In Webster’s Comprehensive Dictionary, International Edition,

"Forgery' is defined as :

"The act of falsely making or materially altering, with intent

to defraud; any writing which, if genuine, might be of legal

efficacy or the foundation of a legal liability."

27. This Definition was adopted in Rembert vs. State, 25 Am. Rep. 639. In

another case, namely, State vs. Phelps, 34 Am. Dec. 672, it was laid down that

forgery is the false making of any written instrument, for the purpose of fraud

or deceit. This decision appears to be based on the meaning of forgery as set

out in Tomlin's Law Dictionary.

28. From the above, it would be seen that fraud is an essential ingredient of

forgery.

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29. Forgery under the Indian Penal Code is an offence which has been defined

in Section 463, while Section 464 deals with the making of a false document.

Section 465 deals with the making of a false document. Section 465 prescribes

punishment for forgery. "Forged document" is defined in Section 470 while

Section 471 deals with the crime of using as genuine, the forged document.

30. Forgery and Fraud are essentially matters of evidence which could be

proved as a fact by direct evidence or by inferences drawn from proved facts.

31. The Privy Council in Satish Chandra Chatterjee vs. Kumar Satish Kantha

Roy & Ors. Air 1923 PC 73, laid down as under:

"Charges of fraud and collusion like those contained in the plaint

in this case must, no doubt, be proved by those who made them-

proved by established facts or inferences legitimately drawn from

those facts taken together as a whole. Suspicions and surmises

and conjecture are not permissible substitutes for those facts or

those inferences, but that by no means requires that every

puzzling artifice or contrivance resorted to by one accused or

fraud must necessarily be completely unravelled and cleared up

and made plain before a verdict can be properly found against

him. If this were not so many a clever and dexterous knave would

escape.

32. The above principle will apply not only to court of law but

also to statutory tribunals which, like the Commission, are

conferred power to record evidence by applying certain

provisions of the Code of Civil Procedure including the power to

enforce attendance of the witnesses and are also given the power

to receive evidence on affidavits. The Commission under the

Consumer Protection Act, 1986 decides the dispute by following

the procedure indicated in Section 22 read with Section 13(iv)

and (v) of the Act.

20. In the matter of S.P. Chengalvaraya Naidu (supra), opposite party has

obtained preliminary decree by playing fraud on the Court and in this

backdrop of the case, Hon’ble Supreme Court has held that non-

disclosure of relevant and material document with a view to obtain

16

advantage amounts to fraud. Relevant portion of paragraph Nos. 5 and 6

are quoted hereinbelow:-

5. The High Court, in our view, fell into patent error. The short question

before the High Court was whether in the facts and circumstances of

this case, Jagannath obtained the preliminary decree by playing fraud on

the court. The High Court, however, went haywire and made

observations which are wholly perverse. We do not agree with the High

Court that "there is no legal duty cast upon the plaintiff to come to court

with a true case and prove it by true evidence". The principle of "finality

of litigation" cannot be pressed to the extent of such an absurdity that it

becomes an engine of fraud in the hands of dishonest litigants. The

courts of law are meant for imparting justice between the parties. One

who comes to the court, must come with clean-hands. We are

constrained to say that more often than not, process of the court is being

abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other

unscrupulous persons from all walks of life find the court - process a

convenient lever to retain the illegal-gains indefinitely. We have no

hesitation to say that a person, who's case is based on falsehood, has no

right to approach the court. He can be summarily thrown out at any

stage of the litigation.

6. The facts of the present case leave no manner of doubt that Jagannath

obtained the preliminary decree by playing fraud on the court. A fraud is

an act of deliberate deception with the design of securing something by

taking unfair advantage of another. It is a deception in order to gain by

another's loss. It is a cheating intended to get an advantage. Jagannath

was working as a clerk with Chunilal Sowcar.

21. Hon’ble Supreme Court in the matter of Budhia Swain and others

(supra) has elucidated the review/recall jurisdiction of tribunal or court

and given certain conditions wherein power of review/recall can be

exercised. Relevant paragraphs No. 8 and 9 of the aforesaid cited

judgment are quoted hereinbelow:-

8. In our opinion a tribunal or a court may recall an order earlier made by

it if

17

(i) the proceedings culminating into an order suffer from the inherent

lack of jurisdiction and such lack of jurisdiction is patent,

(ii) there exists fraud or collusion in obtaining the judgment,

(iii) there has been a mistake of the court prejudicing a party or

(iv) a judgment was rendered in ignorance of the fact that a necessary

party had not been served at all or had died and the estate was not

represented.

The power to recall a judgment will not be exercised when the ground for

re-opening the proceedings or vacating the judgment was available to be

pleaded in the original action but was not done or where a proper remedy

in some other proceeding such as by way of appeal or revision was

available but was not availed. The right to seek vacation of a judgment

may be lost by waiver, estoppel or acquiescence.

9. A distinction has to be drawn between lack of jurisdiction and a mere

error in exercise of jurisdiction. The former strikes at the very root of the

exercise and want of jurisdiction may vitiate the proceedings rendering

them and the orders passed therein a nullity. A mere error in exercise of

jurisdiction does not vitiate the legality and validity of the proceedings and

the order passed thereon unless set aside in the manner known to law by

laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri

Kali Nath AIR 1962 SC 199, it was held :-

"The validity of a decree can be challenged in execution

proceedings only on the ground that the court which passed the

decree was lacking in inherent jurisdiction in the sense that it

could not have seisin of the case because the subject matter

was wholly foreign to its jurisdiction or that the defendant was

dead at the time the suit had been instituted or decree passed,

or some such other ground which could have the effect of

rendering the court entirely lacking in jurisdiction in respect of

the subject matter of the suit or over the parties to it."

22. Facts giving rise to the case of United India Insurance Company Ltd.

(supra) are that claimants have secured compensation from the Motor

Accident Claims Tribunal by putting a false case with respect to the

18

accident. Subsequently, Insurance Company has found the relevant

documents to prove that, in fact, no accident took place and award was

obtained by playing fraud upon the Court. The review application filed by

the Insurance Company was rejected upto Hon’ble High Court, however,

Hon’ble Supreme Court has held the maintainability of the review petition

on the ground of fraud. Relevant paragraph Nos. 15, 16 and 17 are

quoted hereinbelow:-

15. It is unrealistic to expect the appellant company to resist a claim at the

first instance on the basis of the fraud because appellant company had at

that stage no knowledge about the fraud allegedly played by the claimants.

If the Insurance Company comes to know of any dubious concoction

having been made with the sinister object of extracting a claim for

compensation, and if by that time the award was already passed, it would

not be possible for the company to file a statutory appeal against the

award. Not only because of bar of limitation to file the appeal but the

consideration of the appeal even if the delay could be condoned, would be

limited to the issues formulated from the pleadings made till then.

16. Therefore, we have no doubt that the remedy to move for recalling the

order on the basis of the newly discovered facts amounting to fraud of

high degree, cannot be foreclosed in such a situation. No court or tribunal

can be regarded as powerless to recall its own order if it is convinced that

the order was wangled through fraud or misrepresentation of such a

dimension as would affect the very basis of the claim.

17. The allegation made by the appellant Insurance Company, that

claimants were not involved in the accident which they described in the

claim petitions, cannot be brushed aside without further probe into the

matter, for, the said allegation has not been specifically denied by the

claimants when they were called upon to file objections to the applications

for recalling of the awards. Claimants then confined their resistance to the

plea that the application for recall is not legally maintainable. Therefore,

we strongly feel that the claim must be allowed to be resisted, on the

ground of fraud now alleged by the Insurance Company. If we fail to

afford to the Insurance Company an opportunity to substantiate their

contentions it might certainly lead to serious miscarriage of justice.

19

23. Hon’ble Supreme Court has further elucidated the definition of ‘fraud’

in the matter of A.V. Papayya Sastry and others (supra). Relevant

paragraph Nos. 22, 26 and 39 are quoted hereinbelow:-

22. It is thus settled proposition of law that a judgment, decree or order

obtained by playing fraud on the Court, Tribunal or Authority is a nullity

and non est in the eye of law. Such a judgment, decree or order by the first

Court or by the final Court has to be treated as nullity by every Court,

superior or inferior. It can be challenged in any Court, at any time, in

appeal, revision, writ or even in collateral proceedings.

26. Fraud may be defined as an act of deliberate deception with the design

of securing some unfair or undeserved benefit by taking undue advantage

of another. In fraud one gains at the loss of another. Even most solemn

proceedings stand vitiated if they are actuated by fraud. Fraud is thus an

extrinsic collateral act which vitiates all judicial acts, whether in rem or in

personam. The principle of 'finality of litigation' cannot be stretched to the

extent of an absurdity that it can be utilized as an engine of oppression by

dishonest and fraudulent litigants.

39. The above principle, however, is subject to exception of fraud. Once it

is established that the order was obtained by a successful party by

practising or playing fraud, it is vitiated. Such order cannot be held legal,

valid or in consonance with law. It is non-existent and non est and cannot

be allowed to stand. This is the fundamental principle of law and needs no

further elaboration. Therefore, it has been said that a judgment, decree or

order obtained by fraud has to be treated as nullity, whether by the court of

first instance or by the final court. And it has to be treated as non est by

every Court, superior or inferior.

24. In the light of the discussions as made above, now, relevant question

would be as to "what fraud/forgery has been committed or

misrepresentation has been made by the present petitioner, while

obtaining the order dated 11.8.2023 passed by the appellate authority

under rule 85(3) of Rules 1945."

25. Learned counsel for the respondents has emphasized the presence of

Diethylene Glycol (DEG) and Ethylene Glycol (EG) more than the

20

permitted degree in the Propylene Glycol (PG) used as solvent in the

disputed drug i.e. DOK-1 Syrup and Ambronal Syrup, and deficiency

found during the number of investigations conducted by the joint team of

State and Central agencies. He has also laid emphasis upon the judgments

passed by different courts of Republic of Uzbekistan and try to point out

that proper documents have not been filed by the petitioner in this respect.

Having considered the allegations made by the learned counsel for the

respondents and the counter affidavit filed on behalf of respondents No. 1

to 5 as well as respondent No. 6 and upon scrutiny of the record available

on board, it evince that nothing new fact or material or evidence has been

brought, which despite due diligence was not within the knowledge of the

resondent seeking review, before the appellate authority for the purposes

of review of its previous order. Needless to say that deficiency, if any,

found during the several investigations of factory premises conducted by

the joint team of State and Central authorities between 27.12.2022 and

12.1.2023 was well within the knowledge of the authorities of the

department concerned including the appellate authority. Apart from that,

presence of Diethylene Glycol (DEG) and Ethylene Glycol (EG), more

than the permitted degree, was also well within the knowledge of the

authorities, inasmuch as the authority concerned has issued notice dated

23.3.2023 and 4.3.2023 to the petitioner based on the result of

Government Analyst of RDTL, Chandigarh whereby both the aforesaid

substance were found more than the permitted degree. Having considered

all these facts qua death of children in Samarkand, Republic of

Uzbekistan and the presence of DEG and EG in the solvent viz Propylene

Glycol (PG) more than its permitted degree and deficiencies found in the

manfacturing plant during the investigations, detailed show cause notice

dated 30.12.2022 has been issued to the present petitioner. Aforesaid

show cause notice contains the gist of the report dated 27.12.2022 and

report dated 29.12.2022. For convenience and ready reference, the

21

relevant contents of the show cause notice dated 30.12.2022 is quoted

hereinbelow:-

A.F.RNFeu.teral .eCioen-20e5:.rHe86le54J:,

सेक्टर सी, अलीगंज, लखनऊ।

सं०ः ड

्रग

/5831/5586 लखनऊ दिदनांक30.12.2022

कारण बताओ नोदिटस

LJrrReLpSlFHeM.FhgJAe5.7ON7, बी- 48-49, सेक्टर-67, नोएडा, गौतमबुद्धनगर (उ०प्र०) को इस

A.F.RNFeV.l.en-20efHL.RPeN.,rGrero'F.We01 ऑफ 2010 (D.LR-25) एवं 01/ एस०सी०/पी०

ऑफ 2010 (D.LR-28) 546e(p3eDLReV.l.efH)LBen-20e- Dok-1 Maks Tablets and Syrup

(Paracetamol 500mg, Guaifenesin 200mg, Phenylephrine Hydrochloride 10mg) के सेवन से

समरकन्द, उज्बेदिकस्तान में 15 बच्चों के मृत्र्या

ु की प्राप्त सूचना के क्रम में दिदनांक

27.12 2022 को श्री

दिवनोद क

ुमार गुप्ता एवं श्री आशीष कौण्डल

, n-20efHlm Ae(द्वर्या), सी०डी०एस०सी०ओ०, H.?R

जोन गाजिजर्यााबाद, श्री अरदिवन्द क

ुमार

, सहार्याक आर्या

ुक्त

(n-20), मेरठ मण्डल, मेरठ तर्था श्री वैभव

बब्बर, n-20e fHlm A, गौतमबुद्धनगर द्वारा दिववेचना/संर्या

ुक्त दिनरीक्षण दिकर्याा गर्याा र्था।

दिववेचना/fHlm Pe”'F.eA"eCAe52BeDLReAheLUAJ ekle8kNP0eAl.e4mevFme?m3efiiJ;H./दिनरीक्षण

में दिनम्नलिललिखत कदिमर्याां/अदिनर्यादिमतताएं पार्याी गर्याी-

1. For the manufacture of Dok-1 Max Syrup, B.No. DXS2104, the firm had procured propylene

glycol from its approved vendor M/s Manali Petrochemical Ltd., Chennai, through supplier M/s

Maya Chemtech India Pvt. Ltd., Delhi. Upon review of sales invoice issued by M/s Maya

Chemtech, the inspecting team found there is no mention of Lot Number and pharmacopoeia

specification of propylene glycol on the supplier's invoice. Further, firm failed to produce copy

of manufacturer's COA.

2 For the manufacture of Dok-1 Max Syrup, B.No. DXS2209, the firm was found to have used

propylene glycol from an unapproved vender, and had used it in the formulation of finished

products. Firm informed the inspecting team that they had tested the propylene glycol as per

BP specifications only and had used in their batches. The firm further informed to the

inspecting team that they had not tested Propylene Glycol for the impurity of Diethylene Glycol

& Ethylene Glycol.

8RJuHmFe(pefAeDLReA.ef4H.oAe29.12.2022 को श्री दिवनोद क

ुमार गुप्ता एवं श्री आशीष कौण्डल

,

n-20efHlm Ae(द्वर्या), rm7Im7Cr7rm7c7eH.?Re1hH, गाजिजर्यााबाद, श्री ए०के ० गुप्ता, सहार्याक

आर्या

ुक्त

(n-20), मेरठ मण्डल तर्था श्री वैभव बब्बर, n-20efHlm A, गौतमबुद्धनगर द्वारा पुनः संर्या

ुक्त

दिनरीक्षण दिकर्याा गर्याा, fHlm Pe”'F.eA"eCAe52BeDLReAheLUAJ ekle8kNP0eAl.e4mevFme?m3

दिनरीक्षण आख्र्याा के अवलोकन से र्याह दिवदिदत होता है दिक दिनरीक्षण के समर्या दिनम्नलिललिखत

कदिमर्याां/अदिनर्यादिमतताएं दिवद्यमान र्थी-

1. The invoice copy of procurement of propylene glycol did not bear any drug licence and the

product propylene glycol supplied bears no Pharmacopoeal specifications, batch number etc.

2. No test for the presence of diethyl glycol and ethyl glycol were found performed as per COA

of propylene glycol : vide AR no. RM/218/2021 dated 10/05/2021 & AR no. RM/230/2021

dated 21/05/2021 by the firm.

3. As per COA Propylene glycol was supplied by M/S Maya Chemtech, India Pvt Ltd, Khasra

no.: 558, siraspur road, libaspur, next to Sri Ganesh Dharam Kanta, North West Delhi-110042,

22

Manufactured by: M/S Manas Petrochemicals, India, however No COA of supplier or

manufacturer was provided by the firm.

4. The approved vendor list of the firm did not bear the name of supplier M/s Maya Chemtech,

North West Delhi-110042.

5. Approved analytical chemist was absent at the time of investigation.

6. The thermohygrometer ID No. CI-23 provided in FG store at basement was found not

working during investigation.

7. Firm had not provided adequate space for storage of finished goods at the required

temperature. On the day of investigation, several batches of finished products viz: Cinepar

Tablets B. No. CNT2279, MFD. 08 2022, EXP 07.2028, Ferrofort Capsules, B. No. FFC2204,

MFD: 07.2022, EXP: 06.2025, Beldomax Tablets, B. No BDT2201, MFD: 08.2022, EXP:

07.2026 were found kept in corridor stocked for dispatch since long time. There was no record

of temperature of the corridor where these batches ware kept. Temperature mapping was not

done to identify hot point in FG store.

8. Two rejected materials L-cystine & Calcium Sulphito wore found kept in rejected RM store

without any access control & lock & key. No records pertaining to their rejection were provided

by the firm.

9. There is no procedure to verify the materials w.r.t. vendor or source at the time of receipt of

material in RM ware house. No approved vendor list was found available at the RM receiving

bay on the day of investigation.

10. Door interlocking system of Material pass box having ID no. LOR/GF/026 provided for

transfer of material to sampling room was found not working.

11. Wall of Empty capsule storage room was observed to have seepage and thus was not

maintained in hygienic condition.

12. Thermohygrometer for recording temperature in Approved RM store room was found kept

on API drum. The location was not identified after temperature mapping based on worst case

situation.

13. No personal protective equipment were provided for various types of solvents kept in

approved liquid material store room.

14. The stand of dispensing LAF was found rusted.

15. Only one change room at ground floor was found provided which was without any control

of environment and the same was being used for primary gowning for workers working in non

critical area as well as for secondary gowning for workers working in core manufacturing area

of tablets section, capsules section, liquid section, ointment section as well as oral-granules

sachet section. No gowning procedure was found displayed in this change room for different

types of gowning.

16. No provisions were found available for garment change just before entry to respective

manufacturing section. Further, the sink & drain in this change room were not provided with

GMP drain & not maintained in hygienic condition. The door of this change room was also

found rusted.

17. In oral liquid manufacturing section, entry to bottle cleaning room was directly through

decartoning room. No separate airlock was provided for entry to bottle cleaning room.

18. Approved current layout was not displayed in respective locations in manufacturing block.

19. Firm has not provided coving at wall to wall joints & wall to roof joints in all the

manufacturing area.

20. Epoxy flooring provided in oral liquid filling & manufacturing rooms was found broken at

several places, thus making it difficult to clean.

23

21. Drain point provided in liquid manufacturing room was not having any identification &

periodic cleaning record were also not available.

22. No separate washing area was found provided for cleaning of liquid section filling

assembly/machine parts.

23. Preventive maintenance and qualification status for critical equipments like liquid

manufacturing tank, holding tank, bottle cleaning machine, bottle filling machine etc was not

found available.

24. Criteria/record for change/destruction of pads of filter press at the time of product change

over cleaning in liquid section were not available.

25. In tablet manufacturing section, view glass was found broken in tablets granulation room.

Differential pressure manometer in granulation section was also found not working. No air

supply & retum was found provided in tools room. 'No magnehelic gauge was found provided

in granules quarantine room. The differential pressure in Tablet compression-I was observed

out of limit observed as -2 pascal against a limit of -5-20 pascal.

26. It was observed that firm has provided Tablet compression-IV room within the tablet

coating area in form of a cubicle. The door of this compression-IV room was directly opening

in the coating room. There was no differential pressure display in compression-IV room.

Further the compression-IV room and coating room were found supplied with the same AHU.

Thus there is a risk of cross contamination.

27. Various equipments were found kept in tablet manufacturing area without any cleaning

status.

28. FBD bowl was found kept in coating room in idle condition which was making the coating

room congested.

29. Tablet inspection machine room was full of containers & making the room congested.

30. In Blister room, the epoxy was found broken. The differential pressure of this room was

found out of specified limit.

31. No dust extraction system was provided in tablets granulation room, Capsules

manufacturing room and oral granules powder manufacturing room.

32. The ointment manufacturing room, ointment filling room, oral granules manufacturing

room, and Alu-Alu blister packing room provided at second floor were directly opening into a

common corridor and the differential pressures of these rooms were found out of specified

limits.

33. Floor epoxy in Oral powder granules manufacturing room was found broken making it

difficult to clean.

34. Capsules manufacturing room walls were observed with seepage."

26. Drug Licensing-cum-Controlling Authority, UP, while passing the

drugs licence cancellation order dated 13.3.2023, has reiterated and

considered the contents of show cause notice, as mentioned above, and

the report of the Government Analyst as well. Appellate authority, while

passing the order dated 11.8.2023 under Rule 85(3) of the Rules, 1945

which has been sought to be reviewed, has reiterated, as well, the contents

of the show cause notice dated 30.12.2022 and the reply submitted by the

petitioner firm, and two other grounds which were taken by the Drugs

24

Licensing-cum-Controlling Authority, U.P., in its order dated 11.8.2023. It

is apposite to mention that appellate authority has constituted a

departmental committee to assist him in deciding the appeal. Both the

parties were heard at length. Having considered the report submitted by

the departmental committee and the submissions made by both the

parties, the appellate court has partly allowed the appeal, vide order dated

11.8.2023, with an observation that excess presence of Diethylene Glycol

(DEG) and Ethylene Glycol (EG) in Propylene Glycol (PG) solvent used

in manufacturing of drug can be hazardous. It has been further observed

that except the aforesaid deficiency, no other deficiency has been found in

the quality of the drugs manufactured by company. In this backdrop of the

facts, the appellate authority has permitted the petitioner to retain his

drugs licence except manufacturing those drugs wherein solvent

Propylene Glycol (PG) has been permitted to be used.

27. It appears that, at later stage, a review application has been filed on

the same set of facts/grounds which were already considered by the

appellate authority in its order dated 11.8.2023. Surprisingly, entire

content of the review application dated 4.10.2023 has been verbatim

reiterated in the review order dated 4.10.2023, which evince that review

order has been passed on the date of filing of the review application itself

sans opportunity of hearing accorded to the petitioner and without

discussing the grounds on which previous order 11.8.2023 could be

reviewed by the appellate Authority. In the review application as well as

the review order dated 4.10.2023, authority concerned has reiterated the

shortcomings found during the investigation, substandard quality of the

manufactured drugs, gist of the inspection report prepared by the joint

team of State and Central agencies, gist of the report submitted by the

Government Analyst of R.D.T.L., Chandigarh, and the judgement passed

by different courts of Republic of Uzbekistan pertaining to the incident of

death of 15 children. In paragraph no. 11 of the order dated 4.10.2023, it

has categorically been mentioned that drugs license of the petitioner has

25

been cancelled on the basis of the report submitted by joint inspection

team conducted by the State and Central agencies; it would be befitting to

revive the drugs license of the Firm after implementing the process of

C.A.P.A. (Corrective and Preventive Action) by the company and it

should be evaluated and scrutinised by the State Drugs Controlling

Authorities and the officials of C.D.S.C.O. It appears, prima facie, that

basis of the review ultimately rests upon the contents of paragraph no.11

of the order dated 4.10.2023, which is nothing but a personal whims of

the authority concerned, who wants to review the order dated 11.8.2023

passed by the appellate authority. Having scrutinised the averment made

in the counter affidavits, review application and the order passed on the

review application, I did not find any such ingredient which comes within

the definition of fraud/forgery or collusion or misrepresentation. Facts

with respect to the death of 15 children in Samarkand, Republic of

Uzbekistan, presence of deficiencies at the time of several inspections

conducted by joint team of the State and Central authorities and

substandard drugs manufactured by the petitioner’s company was well

within the knowledge of the respondents since inception, while his factory

premises was subjected to inspection. Other than these three elements

emanated from the record, no other element has been demonstrated by the

respondents glaring forgery at the part of the petitioner.

28. So far as the judgement passed by different courts of Republic of

Uzbekistan is concerned, I am sceptical of the submission advanced by

learned Senior Counsel for the respondents that petitioner has committed

any fraud or misrepresentation while submitting the judgement passed by

different courts of Republic of Uzbekistan. He has laid emphasis on the

third point of paragraph No. 7 of order dated 11.8.2023 and tried to

submit that the petitioner (delinquent firm) has misled the appellate

authority with respect to the judgment passed by the Supreme Court of the

Republic of Uzbekistan. He has pointed out that petitioner furnished

information that only two batches of two drugs, namely, DOK-1 Max

26

Syrup and Ambronol Syrup were banned by the Supreme Court of the

Republic of Uzbekistan and remaining drugs were not prohibited. For

convenience, point No. 3 of paragraph No. 7 is quoted hereinbelow:-

उनके द्वारा बतार्याा गर्याा दिक उज्बेदिकस्तान गणराज्र्या के मा० उच्चतम न्र्याार्याालर्या द्वारा

प्रकरण में के वल Dok-1 Max Syrup एवं Ambronol Syrup के दो बैचों को

52BMey0BefAF.evF.3e,rAJ esN.i.e8HAJ eV.l.efH)LBefArmesyFen-20eAh

52BMey0BeH(fefAF.evF.e(p3e8HAJ eV.l.eF(eOmeMB.F.evF.efAe8HAJ efH4J:A/

के दिवरूद्ध की गर्याी एफ०आई०आर० को भी मा० उच्च न्र्याार्याालर्या, इलाहाबाद द्वारा

खारिरज कर दिदर्याा गर्याा।

29. He has further emphasised that company failed to provide certified

copy of the order dated 13.1.2023 passed by District Economic Court of

Tashkent, however, subsequently, officials of the Central and State

departments came to know that Apex Court of Republic of Uzbekistan has

corrected the earlier decision of Inter-District Economic Court of

Tashkent dated 13.1.2023 in which Inter-District Economic Court of

Tashkent passed an order to destroy “DRUGS UNFIT FOR USE”

manufactured by the company. The Apex Court replaced the words

“DRUGS UNFIT FOR USE” with words “DRUGS UNFIT FOR USE

DOK-1 Max Syrup 100ml and Ambronol Syrup 15mg/5ml, Series No.

AAS2201 and AAS2202". The rest of the decision of Inter-District

Economic Court of Tashkent dated 13.1.2023 is unchanged. In this

backdrop of the facts, he has inferred that accused company has earlier

furnished misleading information stating that the Apex Court of the

Republic of Uzbekistan has banned only two drugs, namely, DOK-1 and

Ambronol Syrup, and rest medicines are allowed. He has also emphasised

that the proceeding is still pending consideration in the Court of the

Republic of Uzbekistan. Learned Senior Counsel for the State-

respondents, while laying emphasis on the point No. 3 of paragraph No. 7

of the appellate order dated 11.8.2023, has contended that the

misrepresentation made by the petitioner with respect to the order passed

by the Supreme Court of the Republic of Uzbekistan has badly influenced

the mind of the appellate authority and under that influence, the appellate

authority has passed the order dated 11.8.2023 whereby licence of the

27

petitioner has been revived under some conditions. In support of his

contention, learned Senior Counsel for the respondent had placed reliance

upon the judgment of S.L. Kapoor Vs. Jagmohan and others, (1980) 4

Supreme Court Cases 379 and judgment of House of Lords, Huang vs.

Secretary of State of Home Department (H.L.(E)) decided in the year

2007.

30.Close scrutiny of the judgement dated 11.8.2023 and order of

review dated 4.10.2023, in the light of the submission advanced by

learned Senior Counsel for the respondents pertaining to the decision

pronounced by different courts of Republic of Uzbekistan, evince that

point number three of paragraph 7 of order dated 11.8.2023 can't be said

to be a solitary ground which could influence the mind of appellate

authority. Therefore, cited case of S.L. Kapoor (supra) and judgement of

House of Lords are not applicable in the given circumstances of the

present case. Paragraph no.9 of the review order dated 4.10.2023 evinces

that in its reply dated 26.3.2023 manufacturing company has filed the

decision of order dated 28.4.2023 passed by Hon'ble Supreme Court of

the Republic of Uzbekistan whereby certain modification has been made

in order dated 13.1.2023 passed by Inter District Economic Court. For

ready reference paragraph nos. 9 and 10 of order dated 4.10.2023 is

quoted hereinbelow:

"9. fHL.RB.eDLReV.l.ekjef4H.oA e20.06.2023 AJ er.?e8kNP0eAl.FJevFJ eDecision of the

Supreme Court's judicial commission on economic cases in cassation proceedings,

Dated 28.04.2023 LGefHQHefHPRFef4F.evF.e(p-

The decision of the court

The decision of the Inter-district Economic Court of Tashkent from January 13, 2023

and the decision of the Judicial Committee on Economic Affairs of the Tashkent City

Court from February 9, 2023 should be changed.

The words "Drugs unfit for use" in the conclusion of the decision of the Tashkent

Inter-district Economic Court dated January 13, 2023 are replaced by the words "drugs

unfit for use "DOK-1 max syrup 100ml" and "Ambronol syrup 15mg/5ml", "series

AAS2201 and AAS2202" be replaced.

The rest of the decision of the Tashkent Inter-district Economic Court from January 13,

2023 unchanged.

Court Costs shall be borne by the defendant.

28

fHL.RB.eDLReV.l.e5wBaBe8klhMeskONJueLGerMrJe9kle4.f(Hmecle"unofficial translation

and decision brief" अंदिकत है, ‘1rrJewkle(hB.e(pefAefHL.RB.eDLReV.l.efHPRFeA"e5L.kPBe52B

8kNP0eH(feAl.FmevFme(p3eF(eOme8RJuHmFe(pefAefHL.RB.eDLReV.l.eInter-district Economic

Court of Tashkent from January 13, 2023 and the decision of the Judicial Committee

on Economic Affairs of the Tashkent City Court from February 9, 2023 की पठनीर्या

rqF.fkBe52BONfke8kNP0eH(feAl.FmevFme(p3

10. 8KMJfAwB.HeyF.F.NFeAJ e8klhMefHPRFerJeF(ewkle(pefAefHL.RB.eDLReAhei(.oeAJ eyF.F.NF

से आंभिशक राहत प्राप्त हुhe(peB?.efHL.RB.eDLReAhekEPRBWefH4m-enhf-BeH(fefAF.evF.e(p3"

31. Thus, it is unequivocally stated in paragraph no.9 of the order dated

4.10.2023 that order of Supreme Court of the Republic of Uzbekistan

dated 28.4.2023 was filed alongwith letter dated 20.6.2023. Meaning

thereby order dated 28.4.2023 was well within the knowledge of the

authorities concern as well as the appellate authority and after considering

the order dated 28.4.2023 passed by Supreme Court of the Republic of

Uzbekistan, appellate order dated 11.8.2023 has been passed. In paragraph

no.10 of the order dated 4.10.2023 reviewing authority has observed that

perusal of the aforesaid order passed by court of Uzbekistan reveals that

manufacturing firm has obtained partial relief from that court and it has

not been fully exonerated. Photostat copy of the order dated 28.4.2023 has

been produced before this court by learned Senior Counsel of the

petitioner, which reveals that the operative portion of the aforesaid order

has been mentioned in paragraph no.9 of the review order dated

4.10.2023. Needless to say that before passing the order dated 11.8.2023,

the appellate authority had constituted a committee to assist him in

deciding the appeal. The said committee has submitted a detailed report

after scrutinising the report submitted by the Government Analyst of

RDTL, Chandigarh, the report of the Joint Inspection Committee

conducted by the State and Central agencies, reply of the petitioner, as

well as several information collected from the Central Government with

respect to the incident took place in the Republic of Uzbekistan. In

paragraph No. 6 of the order dated 11.8.2023, the Committee constituted

by the appellate authority has pointed out several technical issues which

are as many as nine in numbers. All the relevant aspects of the matter has

been narrated point wise in the report.

29

32. Assuming arguendo that petitioner has not furnished the correct copy

of the order passed by the Supreme Court of the Republic of Uzbekistan,

it hardly affects the merits of the appeal which was arising out of the

proceeding under the Act 1940 and Rule 1945. I am surprised to see that

Indian authorities are trying to validate their proceedings conducted under

the Indian law on the basis of judgment passed by the Supreme Court of

the Republic of Uzbekistan. Unfortunately, nothing has been pointed out

by the contesting respondents as to what procedural flaw has been

committed by the Indian authorities while exercising their power under

the Act 1940 and Rules 1945 or what fraud or forgery has been committed

by the petitioner upon the appellate authority in a proceeding conducted

under the Indian law i.e. Act 1940 and Rules 1945. Indian laws relating to

drugs are exhaustive and self sufficient code which does not require any

validation of the judgement passed by a foreign courts. Premises of the

petitioner's factory has been inspected more than once and the samples

collected from the factory has been examined by the Government Analyst,

as per provisions enunciated in the Act 1940 and Rules 1945. Concerned

authorities have delve in deep to examine the manufacturing process of

the drugs at the factory premises of the petitioner and the quality of drug,

as well, as per legal requirement enunciated under the Act 1945 and Rules

1945. There is nothing convincing, as to what special the State and

Central authorities have found in the judgement passed by the foreign

courts intending to validate their official duties performed under the

Indian law. Nothing special has been demonstrated before this court in the

orders passed by different courts of Republic of Uzbekistan except certain

observations with regard to the quality of drugs, which have been found

unfit for use, and the said observation was subsequently modified to

certain extent. How this observation bearing upon the merits of the

judgement dated 11.8.2023 passed by the appellate authority, has not

satisfactory been explained before this court. Remedy available in the

hands of the authorities concerned cannot be permitted to be misused in

30

such a cavalier manner, sans proper application of mind, to bolster the

revisit/review of the previous order. Excess use of DEG and EG in the

drug in question manufactured by the petitioner has properly been

evaluated by the appellate authority while passing the judgement,

therefore, on the same ground, review of previous order is not justifiable.

Even, there is no misrepresentation or fraud at the part of petitioner in

placing the orders passed by different courts of Republic of Uzbekistan.

33. In this conspectus, as above, I am of the considered view that despite

the availability of remedy of review/recall to the authorities concerned,

under certain conditions, as permitted under several judicial

pronouncements, no case is made out by the respondents to maintain their

review application against the order dated 11.8.2023 passed by the

appellate authority, who became functus officio after final decision on the

appeal. No case of fraud, forgery or misrepresentation has been made out

to bolster the order under challenge. The order impugned is illegal,

unwarranted under law and without jurisdiction. Existence of such order

would prejudice to the right and interest of the petitioner and amounts to

miscarriage of justice to him.

34. Resultantly, instant writ petition succeeds and is allowed. The order

impugned dated 4.10.2023 passed by the reviewing authority is quashed,

with no order as to the costs.

Order Date : 19.5.2025

vkg/Sumit K./vinay

31