D.Narasimman v. State by G.Selvraj Drugs Inspector, Salem-5

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.08.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.5882/2003Cr.MP.No.2159/2003D.Narasimman.. Petitioner VsState by G.SelvrajDrugs Inspector, Salem-5.. RespondentPrayer:- This Criminal Original Petition is filed to call for theentire records in CC.No.598/2001 on the file of the JudicialMagistrate III, Salem and quash the charges as illegal and repugnantin law.For Petitioner:Mr.N.RajavadiveluFor Respondent :Mr.S.Senthilmurugan, G.AORDER The petitioner seeks to quash the proceedings inCC.No.598/2001 on the file of the Judicial Magistrate III, Salem.2. The private complaint has been filed against thepetitioner by the respondent for the offences under Section 18(c) ofthe Drugs and Cosmetic Act, 1940 (herein after referred to as theAct) read with Rule 65(5)(a) and 104A of the Drugs and CosmeticRules, 1945 (herein after referred to as the Rules) punishable underSection 27(d) of the Act.3. The petitioner is the Proprietor of M/s.S.S.Chemicals,having valid drug license issued by the licensing authority in FormNo.20B and 21B and the license was periodically renewed by thepetitioner. On 27.10.2000, the respondent had inspected the Medicalstores of the Govt. Mohan Kumaramangala Medical College Hospital andit has been found that the petitioner had supplied drugs in InvoiceNos.205 and 203 and DC.Nos.200, 105 to 111 and 114 to 115 to the saidHospital, in which it was found that the batch number and the name ofthe manufacturer of the drug were not found mentioned in the salesbills and thus the petitioner is prosecuted for contravention of theabove provisions of the Act and Rules. Further the maximum retailprice has also been defaced in the outer carton as well as the labelof the ampoules. On disclosure and the information made by thepetitioner, the respondent had visited the premises of M/s.MilanPharma situated at No.7, Nyniappa Street, Chennai-3 on 23.11.2000and it had been found that they purchased the medicines under Invoice https://hcservices.ecourts.gov.in/hcservices/ No.10853 dated 11.7.2007 and ampoules were supplied on the MRP priceas Rs.5.45 per ampoule. The respondent has complied with theformalities and had issued a show cause notice to the petitioner on26.12.2000 and a reply has also been received on 20.2.2001 from thepetitioner. Since the petitioner has contravened the aforesaidprovisions of the Act and Rules, the private complaint has been filedagainst the petitioner by the respondent.4. The learned counsel for the petitioner submitted interalia that Rule 96 of the said Rules only specifies the manner oflabelling as detailed thereto and would not apply to the manner oflabelling under Rule 96 read with 104A of the Rules regardingdefacing of MRP Price. He would further submit that omission of MRPRate on the label is not an offence and therefore Section 18(c) ofthe Act read with Rule 65(5)(1) and 104A of the Rules cannot beinvoked. According to the petitioner, in so far as the medicinessupplied to the Government Institution is concerned, they aresupplied only through tender and on quota basis. Therefore, onlydrug price control order 1995 would apply and no offence is attractedunder the provisions of the Act. He would deny the accusation thatthe name of the manufacturer and the batch number are not foundmentioned in the sales bill and as such, he would contend that thereis no violation of Rule 65(5)(1) of the Rules.5. On a careful perusal of the complaint, it is seen that inthe sales bills Nos.105 to 114, there is omission in mentioning thebatch number and the name of the manufacturer and thus, thepetitioner Company had contravened Rule 65(5)(1)(c) and 65(5)(1)(d)of the Rules. That apart, the retail price seems to have beenerased in the outer carton as well as in the label of the ampoules,which is in contravention of Rule 104A of the Rules for havingdefaced the inscription of MRP made by the manufacturer. When thecomplainant had inspected the premises of M/s.S.S.Chemicals on23.11.2000, copies of the invoices produced thereon do not bear thesignature of the competent person, which is in contravention of Rule65(5)(1)(e) of the Rules. 6. The complaint discloses materials prima facie showing thecommission of crime as alleged in the complaint. The allegationsmade in the complaint relates to the violation of the provisionsunder the Act and Rules and the allegations are prima faciesufficient for the learned Magistrate to take cognizance of theoffences.7. Exercise of power under Section 482 of Code of CriminalProcedure in a case of this nature is the exception and not the rule.It envisages three circumstances under which the inherentjurisdiction may be exercised viz. (i) to give effect to an orderunder the Act, (ii) to prevent abuse of process of court and (iii) tootherwise secure the ends of justice.8. In the case of R.P.Kapur Vs. State of Punjab [AIR-1960-SC-866], the Honourable Supreme Court has summarized the categories ofcases where inherent power can and should be exercised to quash the https://hcservices.ecourts.gov.in/hcservices/ proceedings viz. (i) Where it manifestly appears that there is alegal bar against the Institution or its continuance of criminalproceedings (ii) Where the allegations in the FIR or in the complainttaken on its face value and accepted in their entirety do notconstitute the offence as alleged and (iii) Where the allegationsconstitute an offence, but there is no legal evidence adduced clearlyor manifestly failed to prove the charge.9. In dealing with the last category, it is made to bear inmind the distinction between a case, where there is no legal evidenceor where there is evidence, which is clearly inconsistent with theaccusation made and a case where there is legal evidence, which onappreciation may or may not support the accusation. When exercisingjurisdiction under Section 482 of the Code of Criminal Procedure, theHigh Court would not ordinarily embark upon an enquiry as to whetherthe evidence in question is reliable or not or whether on areasonable appreciation of it accusation would not be sustained andthat is the function of the trial judge.10. Keeping in view the principles of law as enunciatedabove, whether the material in existence in this case would besufficient for holding the accused guilty has to be considered onlyat the time of trial. That being so, as the averments made in thecomplaint prima facie discloses offences as mentioned thereto in thecomplaint, interference by this court at the threshold with thecomplaint, which should be in a very exceptional circumstances is notdesirable.11. Ultimately, acceptability of materials and the defenceraised by the petitioner is only a matter of trial and this is not afit case where it could be said that the complaint does not disclosecrime or offence as alleged in the complaint. Therefore, thiscriminal original petition is dismissed. Consequently, connected MPis closed. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarSrcm To:1.The Public Prosecutor, High Court, Madras 2.The Judicial Magistrate III, Salem3.-do- Thro The Chief Judicial Magistrate, Salem.+ 1 CC to Mr.N.Rajavadivelu,Advocate,SR.38944Crl.OP.No.5882/2003TM(CO)EM/14.10