Karnataka High Court
Sri Naresh A Patil vs State At The Instance Of Drugs on 24 August, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO.3784 OF 2017
BETWEEN:
SRI. NARESH A. PATIL
AGED ABOUT 49 YEARS
S/O LATE SRI. ANIRUDDHA VISHWANATH PATIL
PROPRIETOR OF M/S KOLTE PATIL BIOTECH
NO.5, 1ST FLOOR, 1ST MAIN
PHUKRAJ LAYOUT
LAKKASANDRA, ADUGODI
BENGALURU - 560 030.
... PETITIONER
(BY SRI. K. RAM SINGH, ADVOCATE)
AND:
STATE AT THE INSTANCE OF
DRUGS INSPECTOR
CHIKKABALLAPUR CIRCLE
CHIKKABALLAPUR - 561 207.
... RESPONDENT
(BY SRI. ROHITH B.J., HCGP)
***
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS
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IN C.C.NO. 864/2016 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE AND JMFC, CHINTAMANI.
THIS CRIMINAL PETITION COMING ON FOR FURTHER
DICTATION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Private complaint was lodged under Section 200 of Cr.P.C by the respondent for contravening the provisions contained in 18 (c) and 18 (a) (vi) read with condition 3 (ii) and 4 (ii) of licences in form 20 B and 21 B and offence punishable under Section 27 (b) (ii) and 27 (d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'Act'), alleging that on the search and seizer it was found that accused No.1 who was possessing the licence under the provisions of the Act had purchased the HIV kit from the accused No.2.
2. The learned Magistrate after perusal of the complaint, took cognizance of the aforesaid offence and issued summons. Taking exception of the same, petitioner-accused No.2 is before this Court.
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3. Mr. Kiran S. Javali, learned senior counsel appearing for the petitioner's counsel submits that Section 18 (a) (vi) of the Act is only applicable to the manufacturer and not to the stockiest or the dealers. Hence, he submits that, in the absence of any essential ingredients to constitute the commission of the offence alleged against the petitioner-accused No.2, the cognizance taken by the learned Magistrate is impermissible.
4. On the other hand, learned HCGP appearing for the State would submit that reading of Section 18 of the Act indicates that it applies even to a person who sells the HIV kit to a person who does not possess the licence to sell the same. Hence, the same was in violation of the condition No.32 and 42 of licences in form 20 B and 21 B of the Act granted to the petitioner. Learned HCGP has relied upon the decision of the Hon'ble Apex Court in the case of DRUGS INSPECTOR AND ANOTHER VS. FIZIKEM LABORATORIES (P) LIMITED AND ANOTHER reported in (2008) 4 SCC 784 and also a decision of the Bombay High Court in the case of KISHANCHAND 4 LILARAM BAJAJ vs STATE OF MAHARATHRA reported in 2002 SCC Online BOM. 186
5. I have considered the submissions made by the learned counsel for the parties.
6. The only point that arises for consideration of this court is, whether Section 18 (a) (vi) of the Act is applicable to the petitioner-accused No.2 who is the dealer of the HIV Kit and not the manufacturer of the said HIV Kit.
7. Section 18 deals with prohibition of manufacture of sale of certified drugs and cosmetics which reads as under;
"18. Prohibition of manufacture and sale of certain drugs and cosmetics.-
From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person 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, or is misbranded, adulterated or spurious;
(ii) any cosmetic which is not of a standard quality or is misbranded or spurious;5
(iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true formula or list of active ingredients contained in it together with the quantities, thereof;
(iv) any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims to prevent, cure or mitigate any such disease or ailment, or to have any such other effect as may be prescribed;
(v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended;
(vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder;
(b) sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder;
(c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter;
Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis; 6
Provided further that the Central Government may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale or distribution of any drug or class of drugs not being of standard quality.
8. The Apex Court in the case of DRUGS INSPECTOR AND ANOTHER VS. FIZIKEM LABORATORIES (P) LIMITED AND ANOTHER reported in (2008) 4 SCC 784 interpreting the Section 18 of the Act at paragraph 11 has held that Section 18 prohibits any person from manufacturing for sale or for distribution or sell or stock or exhibit or offer for sale or distribute any drug which is not of a standard quality or is misbranded, adulterated or spurious. Section 18(c) specifies that no person shall himself or by any other person on his behalf manufacture for sale or for distribution, or sell or stock or exhibit or offer for sale or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter.
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9. The High Court of Bombay in the case of KISHANCHAND LILARAM BAJAJ vs STATE OF MAHARATHRA reported in 2002 SCC Online BOM. 186 has held that the purport of Section 18 and 27 is every person whether licensee, agent or may be a qualified person, is prohibited from selling any drug in contravention of provisions of Act and Rules without any exception to this Rule and, therefore, all those who sell drug in contravention of the provisions of the Act and Rules are responsible for such contravention and can be proceeded against. It is further held that any other interpretation of sections 18 and 27, would be totally inconsistent with the legislative intent as well as object and purpose for which these provisions are enacted by the legislature. Hence, in view of the language contended with Section 18 of the Act and also the decision of the Hon'ble Apex Court in the case of DRUGS INSPECTOR AND ANOTHER VS. FIZIKEM LABORATORIES (P) LIMITED AND ANOTHER and also the decision of the Bombay High Court in the case of KISHANCHAND LILARAM BAJAJ vs STATE OF MAHARATHRA, Section 18 (a) (vi) of the 8 Act is applicable to the petitioner-accused No.2, who is the dealer of HIV-Kit. Hence, I do not find any illegality or infirmity in the impugned order passed by the learned Magistrate taking cognizance of the aforesaid offences. Accordingly, the petition stands dismissed.
Sd/-
JUDGE RU