Karnataka High Court
M/S Bonn Schtering Bio Sciences vs State At The Instance Of Drugs Inspector on 20 September, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL PETITION No.7191 OF 2012
BETWEEN
1. M/s. Bonn Schtering Bio Sciences
Plot No.64 & 65, Electronic Park
Thirubuvanai, Mannadipet Commune,
Puducherry-605107.
Rep. by its Partners
Smt. M.Umarani
Smt. M.Madhumathi,
2. Smt. M.Umarani, Partner
M/S. Bonn Schtering Bio Sciences,
Plot No.64 & 65, Electronic Park
Thirubuvanai, Mannadipet Commune
Puducherry-605107.
3. Smt. M.Madhumathi, Partner
Plot No.64 & 65, Electronic Park
Thirubuvanai, Mannadipet Commune
Puducherry-605107.
...Petitioners
(By Sri. G.Desureddy, Advocate)
AND
State at the instance of
Drugs Inspector
Bengaluru-560006
Represented by
2
The State Public Prosecutor,
High Court of Karnataka,
Bengaluru-560001.
...Respondent
(By Sri M.Divakar Maddur, HCGP)
This Criminal Petition is filed under Section 482 of
Criminal Procedure Code praying to quash the entire
proceedings pending on the file of the Special Court for
Economic Offences, Bangalore in C.C.No.79/12.
This Criminal Petition coming on for hearing, this
day, the court made the following:
ORDER
Accused nos. 1 to 3 in CC 79/2012 on the file of Special Court (Economic Offences), Bengaluru, have preferred this petition under section 482 CR.P.C seeking to quash the entire proceedings in the said case.
2. Briefly stated the facts are as below :-
The Drugs Inspector initiated proceedings under section 200 Cr.P.C. against the petitioners and another accused namely Sri R.Bharathidasan in relation to an offence punishable under section 27(d) of the Drugs and Cosmetics Act, 1940 (for short referred to as 'Act') for contravening the provision of section 18(a)(i) of the Act. 3 It is alleged in the complaint that the first petitioner is a manufacturing unit possessing valid drug licence. The petitioners 2 and 3 are the partners of the first petitioner firm and that another accused no.4 is the authorized person and also one of the approved manufacturing Chemists of the first petitioner firm. On 20.11.2009 the Drugs Inspector incharge at that time took samples of X- CV Dry Syrup (Amoxycillin and Clavulanate Potassium Oral Suspension) Batch no. 904D003, D/M:Apr/2009, D/E:SEP/2010 manufactured by first petitioner. The samples were divided into four portions. One portion was sent to Drug Testing Laboratory, Bengaluru. On 16.1.2010, Laboratory sent a report to the effect that the drug was "Not of standard quality". A copy of the report was sent to the manufacturer on 18.1.2010 for information. The investigation conducted established that all the accused contravened Section 18(a) (i) by manufacturing, distributing and selling a sub-standard quality drug XCV Dry Syrup. On 22.5.2012, the Drugs Controller for the State of Karnataka permitted to launch 4 prosecution against the petitioners and thus a complaint came to be filed. It is alleged that the first petitioner is responsible for manufacturing and selling "Not of standard quality drug". Second and third petitioners being the partners of the firm are also responsible for manufacture and sale of "Not of standard quality drug". Accused no.4 is responsible for day-to-day activities of the company and he is responsible for manufacture and sale of the said drug. The learned Magistrate took cognizance of the offence.
3. The argument of the petitioners counsel is that the petitioners were in no way connected with day to day affairs of the first petitioner firm and manufacture of the drug. Para 29 of the complaint indicates that it is accused no.4 who is solely responsible. The petitioners 2 and 3 may be partners, but they were not incharge of the firm much less in the manufacture of drug. Therefore they cannot be prosecuted. He gathers support from the following decisions:-
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(1) Judgment of Supreme Court in State of Haryana Vs. Brij Lal Mittal and others, (AIR 1998 Supreme Court 2327).
(2) Judgment of Bombay High Court in Ramprakash Gulati and others Vs. State of Maharastra, [2017(2) Drugs Cases (DC) 49]. (3) Judgment of Jharkhand High Court in Kedar Singh & another Vs. The State of Jharkhand [2017(2) Drugs Cases (DC) 55]. (4) Judgment of Andhra Pradesh High Court in N.Dandapani and another Vs. State of Andhra Pradesh, (2005 CRI.L.J. 2424).
(5) Judgment of Karnataka High Court in Sanjay G. Ravankar and etc Vs. State of Karnataka and etc, (2002 CRI.L.J. 1353). (6) Judgment of Rajasthan High Court in N.H.Khushrokhan & P.V.Nayak Vs. State of Rajasthan, [2008 Drugs Cases (DC) 569]. (7) Judgment of Allahabad High Court in Pushpendra Medical Stores and another Vs. State of U.P. and others, [2008 Drugs Cases (DC) 574].6
(8) Judgment of Delhi High Court in Ram Narain Arora Vs. State, [2008 Drugs Cases (DC) 577].
(9) Judgment of Rajasthan High Court in Nikson Pharmaceuticals[M/s.] & others Vs. State of Rajasthan & others, [2008 Drugs Cases (DC) 580].
(10) Judgment of Bombay High Court in
Rashmi Kamal Shah Vs. The State of
Maharashtra and another, [2017(2) Drugs
Cases (DC) 27].
(11) Judgment of Karnataka High Court in
Ritesh Vs. The State of Karnataka,
(Crl.P.No.15263/2011 and Conn. Matters)
decided on 19.11.2011.
(12) Judgment of Karnataka High Court in M/s Zee Laboratories and another Vs. Union of India, (Crl.P.No.8431/2015) decided on 21.8.2018.
4. The High Court Government Pleader argued that the complaint very much shows that the petitioners are responsible for sale of substandard drugs. Accused no.4 7 may be involved in manufacture, but the petitioners 2 and 3 are involved in sale of the drugs. Therefore proceedings as against the petitioners cannot be quashed.
5. I have considered the arguments. Since the petitioners are charge sheeted for the offence punishable under Section 27 (d) of the Act for contravening Section 18 (a)(i), it is necessary to reproduce Section 18(a)(i) here:
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;8
6. Plain reading of this provision of law indicates that a drug which is not of a standard quality or misbranded or adulterated or spurious shall not be manufactured for the purpose of sale or sold or offered for sale or stocked or exhibited for sale, and contravention of this constitutes an offence.
7. In the instant case, petitioners 2 and 3 are the partners of first petitioner firm. Though it is stated in the complaint that accused no.4 is the authorized person and responsible for manufacture and sale of the drug said to be of substandard quality, equally allegations are made in paras 25 to 28 of the complaint against the petitioners. Since there are allegations against them, the prosecution should establish them. Para 29 alone cannot be considered to exonerate the petitioners. In all the decisions that the petitioners' counsel has relied on, the principle laid down is that if there are no allegations against Directors of the Company, they cannot be prosecuted, and only that person who is in charge of 9 affairs of a company can be held to be responsible. That means, there must be specific allegations against the Directors or Partners to hold them responsible. Since in the case on hand, there are allegations against petitioners, they have to face trial. No instance of abuse process of court or law can be glaringly made out. There is no scope for interference under Section 482 Cr.P.C. Petition is dismissed.
Sd/-
JUDGE Ckl/sd