P.Sukumar v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :17.10.2009CORAMTHE HONOURABLE MR. JUSTICE K.N. BASHACrl.O.P.No.24222 of 2008P.Sukumar... Petitioner/Accused No.6Vs.State represented bySenior Drugs InspectorSalem Zone, Salem.... Respondent/Complainant * * *Prayer : Criminal Original Petition filed under Section 482 Cr.P.C.to call for the records in C.C.No.577 of 2005 on the file of thelearned Judicial Magistrate, Krishnagiri and quash the proceedingsagainst the petitioner.* * *For Petitioner: Mr.V.RajamohanFor Respondent: Mr.A.Saravanan, Govt. Advocate (Crl. Side)O R D E RThe petitioner who has been arrayed as A6 in this case on thebasis of the complaint preferred by the respondent herein for thealleged offences under Sections 18(a)(i) read with 17B(d) of theDrugs and Cosmetics Act 1940 (hereinafter referred to as "the Act")which is punishable under section 27(c) of the said Act and undersection 18(a)(i) of the Act which is punishable under section 27(d)of the said Act, has come forward with this petition seeking for therelief of quashing the proceedings pending in C.C.No.577 of 2005 onthe file of the learned Judicial Magistrate, Krishnagiri.2. Mr.V.Rajamohan, learned counsel appearing for the petitionercontended that the petitioner has been implicated as A6 and he is alicensed Shop Owner namely M/s.Sukumar Medicals situated atKrishnagiri. It is submitted that the case of the prosecution isthat the petitioner's shop was inspected by the Senior DrugInspector, Salem II Range and the Assistant Director of DrugsControl, Salem Zone on 17.2.2004 and on verification, it was foundthat the petitioner has purchased 20x20x10's Teenmox capsules whichis manufactured by A1 under Invoice No.212 dated 29.12.2003.3. It is further submitted that the petitioner had already sold 1x 10x10 of Teenmox capsules. The learned counsel would further submit https://hcservices.ecourts.gov.in/hcservices/ that the further allegation against the petitioner is that thepetitioner's premises was also found with stocks of the drugs asdetailed below:"1.6x20x10 Tablets of Auto, B.Nok.Auto 1001, Mfg.Date:Feb.03, Exp. Date: Jan.05, Manufactured by M/s BroadmanPharmaceuticals, 5/6 Chennai Road, Sundampatty-635 108.2.5x25x20 Capsules of Diphenhydramine Hcl Capsules,B.No.DPH 101, Mfg. Date: 7/02, Exp. Date: 6/04,Manufactured by M/s Broadman Pharmaceuticals 5/6 ChennaiRoad, Sundampatty 635 108."4. It is submitted that the further allegation is that the DrugInspector has also taken samples from the above said stocks andobtained certified copy of the Purchase Invoice No.212 dated29.12.2003 for the purchase of Teenmox Capsules from the firm/A-1,the licensed manufacturer, and a voluntary statement dated 17.2.2004was also recorded from the petitioner/A6. It is submitted that theallegation as per the complaint is that the seized drugs which weresaid to have been manufactured by M/s.Broadman Pharmaceuticals werereported to be of standard quality as per the analysis report dated31.3.2004. But the samples said to have been manufactured by A1 -M/s.Teen Pharmaceuticals were found to be not of standard quality andspurious as per the analysis report dated 6.5.2004. Therefore, it issubmitted that the petitioner, who has been arrayed as A6 and themanufacturer A-1 and other accused totally numbering six have beenimplicated in this case for the contravention of the followingsections:"(i)Section 18(a)(1) of the Drugs and CosmeticsAct 1940 read with section 17B(d) of the said act, forhaving manufactured and sold a spurious drug namelyTeenmox, B.No.T-108, punishable under section 27(c) ofthe said Act.(ii)Section 18(a)(1) of the Drugs and CosmeticsAct 1940 for having manufactured and sold, a NotStandard Quality drug namely Teenmox Capsules, B.No.108,which is punishable under section 27(d) of the said Actand (iii)Section 18B of the said Act, read withRule 78(c) of the Drugs and Cosmetics Rule 1945 for notmaintaining the records of manufacture as perparticulars given in Schedule U, for Teenmox Capsules,B.No.108 which is punishable under section 28A of thesaid Act 1940."5. It is contended by the learned counsel for the petitioner thatthe petitioner is admittedly a licensed Shop Owner and he is not the https://hcservices.ecourts.gov.in/hcservices/ manufacturer of the alleged spurious drugs. Further in thecomplaint, there is no allegation that the petitioner had theknowledge about the contravention of the provisions under the Actor he is aware that the drugs are spurious and not of standardquality. Therefore it is contended that the petitioner is entitledto the protection provided under section 19(3) of the Act. It issubmitted that the petitioner during the time of inspection andsearch also provided the details of the manufacturer as per theprovisions under section 18A of the Act. The learned counsel wouldfurther submit that even to the show cause notice, the petitioner/A6has given an explanation to the effect that he is only a licensedShop Owner and he has purchased the drugs from A1 who is a licensedmanufacturer and he has no knowledge that the drugs are of spuriousand not of standard quality. Therefore it is contended by thelearned counsel for the petitioner that allowing the proceedings tocontinue against the petitioner would be of clear case of abuse ofprocess of Court and as such the proceedings is liable to be quashedin so far as the petitioner is concerned.6.Mr.A.Saravanan, learned Government Advocate (Crl. side)contended that the petitioner has been arrayed as A6 out of sixaccused and he has been implicated for the alleged contravention ofthe provisions under the Act for selling the spurious and not ofstandard quality drugs. It is fairly submitted by the learnedGovernment Advocate that as per the allegation the petitioner is alicensed Shop Owner namely Sukumar Medicals, and the drugs were foundto be manufactured by A1 and A2, the Managing Partner of the Firm ofA1, also categorically admitted that the first accused is thelicensed Firm and the drugs seized from the shop of A-6 aremanufactured by A1/Firm.7. I have carefully considered the submissions made by both sidesand perused the impugned complaint and other materials available onrecord.8. It is seen that the petitioner has been arrayed as A6 and hehas been implicated on the allegations as stated above. The admittedcase of the prosecution is to the effect that the petitioner/A6 is alicensed shop owner namely M/s.Sukumar Medicals. The sum andsubstance of the allegation as per the complaint is to the effectthat certain drugs were seized by the Drug Inspector during the timeof inspection and on analysis those drugs were found to be spuriousand not of standard quality and as such the accused are implicatedfor the alleged contravention of certain specific provisions asstated above.9. The main contravention of the provision alleged in thecomplaint is under Section 18 of the Act. Section 18 reads hereunder: https://hcservices.ecourts.gov.in/hcservices/ "18.Prohibition of manufacture and sale of certaindrugs and cosmetics ---From such date as may be fixed by the State Government bynotification in the Official Gazette in this behalf, noperson shall himself or by any other person on his behalf--(a)manufacture for sale or for distribution, or sell,or stock or exhibit or offer for sale, or distribute --(i) any drug which is not of a standard quality, oris misbranded, adulterated or spurious;(ii)any cosmetic which is not of a standard qualityor is misbranded or spurious;(iii)any patent or proprietary medicine, unless thereis displayed in the prescribed manner on the lable orcontainer thereof (the true formula or list of activeingredients contained in it together with the quantities,thereof) (iv)any drug which by means of any statement, designor device accompanying it or by any other means, purportsor claims (to prevent, cure or mitigate) any such diseaseor ailment, or to have any such other effect as may beprescribed; (v) any cosmetic containing any ingredient which mayrender it unsafe or harmful for use under the directionsindicated or recommended;(vi)any drug or cosmetic in contravention of any ofthe provisions of this Chapter or any rule madethereunder;(b) (sell, or stock or exhibit or offer for sale,) ordistribute any drug ( or cosmetic) which has been importedor manufactured in contravention of any of the provisionsof this Act or any rule made thereunder;(c) [manufacture for sale or for distribution, orsell, or stock or exhibit or offer for sale,] ordistribute any drug (or cosmetic), except under, and inaccordance with the conditions of, a license issued forsuch purpose under this Chapter:Provided that nothing in this section shall apply tothe manufacture, subject to prescribed conditions, ofsmall quantities of any drug for the purpose of https://hcservices.ecourts.gov.in/hcservices/ examination, test or analysis:provided further that the (Central Government) may,after consultation with the Board, by notification in theOfficial Gazette, permit, subject to any conditionsspecified in the notification, the (manufacture for saleor for distribution, sale, stocking or exhibiting oroffering for sale) or distribution of any drug or class ofdrugs not being of standard quality."10. It is pertinent to note that in the impugned complaint itselfit is categorically stated that the petitioner/A6 is a licensed ownerof the shop namely M/s.Sukumar Medicals and the said shop is licensedto sell the drugs by way of retail under the licence No.SLD/2072/20,21 dated 13.12.2001 renewed upto 12.12.2006 and he was also permittedto maintain Cash Bill, Credit Bill copies instead of prescriptionRegister. Therefore, on the date of inspection, i.e., on 17.2.2004the petitioner was possessed with the licence to sell the drugs andthe said licence was also valid upto 12.12.2006.11.Added to such specific averment contained in the complaint, itis relevant to note that the petitioner/A6 also furnished the fulldetails of the manufacturer of the said drugs namely M/s TeenPharmaceuticals, Chennai 1, (A1) as contemplated under section 18A ofthe Act in respect of disclosing the name of the manufacturer etc.The yet another aspect to be borne in mind is that A2 the ManagingPartner of A1 Firm also categorically stated in his letter dated3.6.2004 that the drugs seized from the shop of A6/ the petitionerherein were manufactured by them and they are having valid drugmanufacturing licence bearing No:1048/01 and 721/01 in Form 25 and 28respectively both dated 14.12.2002 and valid upto 13.12.2007. A2also specifically admitted about the sale of drugs namely TeenmoxCapsules to A6 M/s Sukumar Medicals as per Invoice No.212 dated29.12.2003.12. Therefore, it is crystal clear from the allegations andaverments contained in the impugned complaint that the petitioner A6is a licensed shop owner viz. M/s.Sukumar Medicals and he haspurchased the drugs namely, Teenmox Capsules, seized from his shop,from its manufacturer/A1 and even the Firm (A-1) is also a licensedfirm for manufacturing drugs.13. At this juncture it is relevant to refer section 19(3) of theAct:"19.Pleas--(1).....(2)...........(3) A person, not being the manufacturer of a drugor cosmetic or his agent for the distribution thereof,shall not be liable for a contravention of section 18 ifhe proves --- https://hcservices.ecourts.gov.in/hcservices/ (a) that he acquired the drug or cosmetic from aduly licensed manufacturer, distributor or dealerthereof;(b) that he did not know and could not, withreasonable diligence, have ascertained that the drug orcosmetic in any way contravened the provisions of thatsection; and (c)that the drug or cosmetic, while in hispossession was properly stored and remained in the samestate as when he acquired it."14. A reading of the said provision makes it crystal clear that aperson shall not be liable for any contravention of section 18 of theAct if he is not the manufacturer of a Drug and Cosmetic or shall befor the distribution thereof, if he proves - (a) that he acquired the drug or cosmetic from a duly licensedmanufacturer, distributor or dealer thereof ;(b) that he is not having knowledge about the contravention ofany provisions of the Act in respect of a particular drug or cosmetic; and (c) that the said drug or cosmetic was properly stored andremained in the same state while such drug was in his possession.15. As far as the case on hand is concerned, it is the admittedcase of the prosecution that even as per the allegations contained inthe complaint, the petitioner/A-6 has acquired the said drugs,Teenmox capsules, from the licensed manufacturer/A-1, namely, TeenPharmaceuticals.16. There is absolutely no allegation in the complaint to theeffect that the petitioner was having any knowledge about thecontravention of any provisions of the Act in respect of the drugsseized from his shop and in the complaint it is categorically statedthat the petitioner/A-6 through his reply dated 28.05.2004 to theshow-cause notice stated that he has purchased the said drugs fromthe licensed manufacturer M/s.Teen Pharmaceuticals under properinvoice and he has stored the said drugs properly and he could notfind that the said drug is substandard and spurious in nature. 17. At the risk of repetition, it is to be reiterated that in thecomplaint itself it is categorically stated that A-6 has purchasedthe said drugs from the licensed manufacturer bearing licenseNos.1048/01 and 721/01 in Form 25 and 28 respectively both dated14.02.2002 and valid upto 13.12.2007. Therefore, it is crystal cleareven as per the admitted case of the prosecution as stated in thecomplaint itself that it is prima facie established that the https://hcservices.ecourts.gov.in/hcservices/ petitioner has acquired the said drugs from the duly licensedmanufacturer and that he did not know and could not have ascertainedthat the said drugs were manufactured in contravention of theprovisions of the Act and the petitioner has properly stored the saiddrugs during his possession in the shop. It is also to be borne inmind that as per the case of the prosecution the Drug Inspector alsotaken samples from the stock of the drugs kept in the shop of A-1said to have been manufactured by M/s.Broadman Pharmaceuticals, butsuch drugs as per the Analyst Report dated 31.03.2004 were reportedto be of standard quality and as such it is crystal clear that thepetitioner could not have had any knowledge about the spurious natureor of sub-standard quality of the drugs purchased from A-1/manufacturer and as already pointed out, there is no suchallegation also from the prosecution. Therefore, the petitioner, onthe basis of the admitted case of the prosecution, proved the threeconditions contemplated under Section 19(3) of the Act to the effect(1) that he acquired the drugs from a duly licensed manufacturer ;(2) that he did not know and could not have ascertained the drug inany way contravened the provisions of that Section and (3) that thedrug during in his possession was properly stored and remained in thesame state as when he acquired it and as such this Court has nohesitation to hold that the petitioner is entitled to the protectionunder Section 19 (3) of the Act.18. It is well-settled by a catena of decisions of the Hon'bleApex Court that if the allegations contained in the complaint takenin its entirety to be true and no offence made out, then thecompliant is liable to be quashed. The said principle of law issquarely applicable to the case on hand as in this case also even ifthe allegations contained in the complaint taken in its entirety tobe true, no offence made out much less the contravention alleged inthe complaint. Therefore, allowing the proceedings to continueagainst the petitioner pursuant to the complaint preferred by therespondent herein is nothing but a clear case of abuse of process ofCourt and as such the proceedings pending against the petitioner isliable to be quashed and accordingly, the proceeding pending inC.C.No.577 of 2005 on the file of the learned Judicial Magistrate,Krishnagiri, is hereby quashed in so far as the petitioner/A6 isconcerned.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rpa/ggTo1. The Judicial Magistrate, Krishnagiri.2. -DO-Through The Chief Judicial Magistrate, Krishnagiri.3. The Senior Drugs Inspector Salem Zone, Salem.4. The Public Prosecutor, Madras High Court, Madras.1 cc To Mr.N.Mohideen Basha, Advocate, SR.6775 Crl.O.P.No.24222 of 2008BS(CO)SRA(05/03/2009)