Rajasthan High Court - Jaipur
M/S Movika Pharmaceutical And vs State on 5 October, 2009
Author: R.S.Chauhan
Bench: R.S.Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR M/s Movika Pharmaceuticals & Ors. Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.615/2005) Date of Order :- 05th October, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.K.J. Mehta, for the petitioners.
The petitioners have challenged the continuation of the criminal proceeding pending before the Judicial Chief Judicial Magistrate No.6, Jaipur City, Jaipur.
The learned counsel for the petitioners contends that allegedly the petitioners sold a chemical known as Aswamol (Paracetamol Syrup) which is the main ingredient of paracetamol medicine. The said chemical was sold to M/s Beelwal Pharmaceutical Agencies, Jaipur. According to the Drug Inspector, the Paracetamol Syrup which were recovered from M/s Beelwal Pharmaceutical Agencies, Jaipur, were found to be spurious. According to the learned counsel, Section 19 of the Drugs and Cosmetics Act, 1940 ('the Act', for short) provides certain statutory defences which are available to the accused-petitioners. Moreover, Section 34 of the Act creates vicarious liability, in case the offence is committed by a company. According to the learned counsel, the vicarious liability of the petitioners has not been made out. Yet, the criminal proceeding is continue against them. Lastly, arrest warrant have been issued against the petitioners. Although the petitioners had applied for an anticipatory bail before the learned District Court, the same has been denied. Therefore, this Court, in its jurisdiction under Section 482 Cr.P.C., should grant bail to the petitioners, as the main accused person has already been granted a regular bail by the trial court itself.
Heard the learned counsel for the parties.
Section 19 of the Act reads as under :-
19. Pleas.-
(1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug (or cosmetic) in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that the purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale.
(2) For the purposes of section 18 a drug shall not be deemed to be misbranded or (adulterated or spurious) or to be below standard quality nor shall a cosmetic be deemed to be misbranded or to be below standard quality only by reason of the fact that -
(a) there has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or preparation of the drug (or cosmetic) as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the drug (or cosmetic) or to conceal its inferior quality or other defects; or
(b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it: provided that this clause shall not apply in relation to any sale or distribution of the drug (or cosmetic) occurring after the vendor or distributor became aware of such intermixture.
(3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves-
(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;
(b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened that provisions of that section; and
(c) that the drug or cosmetic, while in his possession was properly stored and remained in the same sate as when he acquired it.
Section 34 of the Act reads as under :-
34. Offences by companies.-
(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the proceeded company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section shall (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
A bare perusal of the Section 19 of the Act reveals that it provides certain statutory defences to the accused. However, these defences can be taken by the accused only during the course of the trial. At the initially stage when the trial has not even commenced, neither this Court, nor the Sub-ordinate court can go into the defence pleas. Therefore, Section 19 of the Act does not come to the rescue of the petitioner at this stage.
Similarly, Section 34 of the Act requires the accused to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. Again these are matters to be proven by the accused during the course of the trial. Hence, the same cannot be considered at the present stage. Thus, Section 34 of the Act also does not come to the rescue of the petitioner.
As far as the grant of bail is concerned, admittedly the petitioners have not applied for an anticipatory bail before this court after their anticipatory bail application was rejected by the learned trial court. Since an alternate remedy is still available to the petitioners, this Court cannot exercise its inherent jurisdiction under Section 482 Cr.P.C.
In this view of the matter, this petition is devoid of any merit. It is, hereby, dismissed.
(R.S.CHAUHAN)J. Manoj Solanki-