Karnataka High Court
Smt. Gagandeep Kaur vs State Of Karnataka At The Instance Of on 29 March, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.P No. 101916 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 101916 OF 2021 (482-)
BETWEEN:
1. SMT. GAGANDEEP KAUR
PROPRIETRIX OF M/S MEDWOR PHARMA ,
AGED ABOUT 48 YEARS,
NO. 140, EPIP, PHASE-II,
THANA, BADDI-173205,
HIMACHAL PRADESH.
2. SHRI AMANDEEP SINGH
AGED ABOUT 45 YEARS,
S/O SHRI HARMIT SINGH,
ANALYTICAL CHEMIST OF
M/S MEDWOR PHARMA
NO. 140, EPIP, PHASE-II , THANA,
BADDI-173205. HIMACHAL PRADESH
...PETITIONERS
(BY SRI. DESU REDDY G., ADVOCATE)
AND:
1. STATE OF KARNATAKA AT THE INSTANCE OF
DRUGS INSPECTOR-1
BAGALKOTE CIRCLE-3,
O/O THE ASSISTANT DRUGS CONTROLLER,
PLOT NO. D-14 , SECTOR NO.10,
OPP KALABHAVAN, NAVANAGAR,
BAGALKOTE-587103,
REPRESENTED BY
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CRL.P No. 101916 of 2021
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING
DHARWAD-08
...RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO CALL FOR THE ENTIRE RECORDS IN
C.C.NO.1557/2021 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC AT JAMAKHANDI AND FURTHER BE PLEASED
TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.1557/2021
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC AT
JAMAKHANDI FILED AGAINST THE PETITIONERS FOR THE
ALLEGED VIOLATION OF SECTION 18(a) (i) READ WITH
SECTION 17B (d), PUNISHABLE U/S 27(d) AND (c) OF THE
DRUGS AND COSMETICS ACT 1940, IN SO FAR PETITIONERS
CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Accused No.1 is the proprietrix and person responsible for day to day conduct of the business of the firm viz., M/s. Medwor Pharma, accused No.2 is the approved analytical chemist and authorized signatory of accused No.1 firm and accused No.3 is the approved manufacturing chemist of the accused No.1 firm.
2. On 05.03.2013, the Assistant Drugs Controller, Bagalkot Circle, drew a sample of RABLIN-20, Rabeprazole -3- CRL.P No. 101916 of 2021 Tablets-20 mg manufactured by the petitioner-firm. The said sample was sent to the Regional Drugs Testing Laboratory, Bellary for test and analysis under Form-18. The Testing Laboratory furnished the report on 21.08.2013 in Form-13 declaring that the subject drug is not of standard quality with respect to identification, dissolution and assay for Rabeprazole Sodium.
3. Thereafter, petitioner-accused No.1 communicated with the Assistant Drugs Controller, Bagalkot Circle, requesting to send the drugs sample to Central Drugs Laboratory, Kolkata for retest as specified under Section 25(4) of the Drugs and Cosmetics Act, 1940 (for short, 'the Act'). However, the said request was turned down. Again, the accused No.1 sent a communication requesting the Assistant Drugs Controller to send the subject drug sample to the Central Drugs Laboratory, Kolkata for retest.
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4. The Drugs Controller and the Controlling Authority authorized the Assistant Drugs Controller to initiate criminal proceedings against the accused person for contravening the provisions of Sections 18(a)(i), 18(a)(ii) read with Section 17B(d) of the Drugs and Cosmetics Act, 1940 and the Rules thereunder punishable under Sections 27(d) and 27(c) of the Act.
5. The learned Magistrate after perusing the complaint took cognizance of the aforesaid offences alleged against the petitioners. Taking exception to the same, this petition is filed.
6. The learned counsel appearing for the petitioners submits that the complaint is lodged by the first respondent after a lapse of more then seven years from the date of expiry of the subject drug. Hence, he submits that the first respondent by not sending the subject drug for retesting as specified under Section 25(4) of the Act has deprived the petitioners of their valuable -5- CRL.P No. 101916 of 2021 right. In support, reliance is placed on the decision of the Hon'ble Apex Court in the case of Medicamen Biotech Ltd. & Anr. Vs. Rubina Bose, Drug Inspector reported in II(2008) CCR 230 and also on a decision of the co- ordinate Bench of this Court in Criminal Petition No.7059/2010 disposed of on 17th August 2010.
7. On the other hand, the learned High Court Government Pleader appearing for the respondent-State submits that the subject drug manufactured by M/s. Medwor Pharma is not of standard quality. Hence, the learned Magistrate has rightly taken cognizance of the offences alleged against the petitioners.
8. I have examined the submissions made by the learned counsel for the parties.
9. The Assistant Drug Controller on 05.03.2013 drew sample of RABLIN-20, Rabeprazole Tablets-20 mg which was manufactured by the M/s. Medwor Pharma. The subject drug was sent to the Regional Drugs Testing -6- CRL.P No. 101916 of 2021 Laboratory, Bellary on 12.03.2013 in Form-18. The Testing Laboratory, Bellary furnished its report on 21.08.2013 declaring that the subject drug is not of standard quality with respect to identification, dissolution and assay for Rabeprazole Sodium. The petitioner-accused No.1, in turn, communicated with the Assistant Drugs Controller on 22.07.2014 to send the subject drug sample to Central Drugs Laboratory, Kolkata, for retest as specified under Section 25(4) of the Act. However, the said request was denied by the Assistant Drugs Controller. The Assistant Drugs Controller after obtaining permission from the higher Officer, lodged a complaint with the jurisdictional Magistrate on 18.06.2021, through the potentiality of the drug expired in the month of September 2014 itself.
10. Section 25(4) of the Act specifies that the accused is given a right to cause the sample of the drugs in question for further test or analysis. The accused having not been provided with a right to cause the sample drug in question for retest, have been deprived of the said right -7- CRL.P No. 101916 of 2021 since the potentiality of the said drug in question expired long back in the month of September 2014 and there is no occasion for the accused to send the subject drug for retest as specified under Section 25(4) of the Act. Therefore, the accused have lost their right to cause the sample drug in question for further test or analysis by making an application. In view of the same, the petitioners having been deprived of the right to send the subject drug for retest, taking of the cognizance by the learned Magistrate for the aforesaid offences is not sustainable in law. Accordingly, I pass the following:
ORDER The criminal petition is allowed. The impugned proceedings in C.C. No.1557/2021 pending on the file of the learned Principal Civil Judge and JMFC at JMFC at Jamakhandi, insofar as the petitioners herein, is hereby quashed.
Sd/-
JUDGE KMS