Karnataka High Court
M/S Total Health Care vs State At The Instance Of on 23 November, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
Crl..P.No.6865/2020
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.6865 OF 2020
BETWEEN:
1. M/s.Total Health Care,
Plot No.17, Ambota,
Sector - 5, Parwanoo,
DistSolan,
Himachal Pradesh - 173 220.
Represented by its
Manufacturing Chemist,
Sri.Ghanshyam Kushwaha.
2. Sri.Ghanshyam Kushwaha,
S/o Sri.Motilal Kushwaha,
Aged about 54 years,
Manufacturing Chemist,
M/s. Total Health Care,
Plot No.17, Ambota,
Sector - 5, Parwanoo,
DistSolan,
Himachal Pradesh - 173 220.
3. Sri.Ajeet Kumar Pandey,
S/o Sri.Rajender Pandey,
Aged about 54 years,
Analytical Chemist of
Manufacturing Chemist,
M/s.Total Health Care,
Plot No.17, Ambota,
Crl..P.No.6865/2020
2
Sector - 5, Parwanoo,
DistSolan,
Himachal Pradesh - 173 220.
... Petitioners
(By Sri.Desu Reddy G., Advocate)
AND:
State at the Instance of
Drugs Inspector - 1,
Bengaluru Circle - 3,
Bengaluru.
Represented by
State Public Prosecutor,
High Court Buildings,
Ambedkar Veedhi,
Bengaluru - 560 001.
... Respondent
(By Sri.K.Nageshwrappa, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the entire proceedings in
Spl.C.C.No.154/2020 on the file of Principal City Civil
and Sessions Judge (CCH-1), Bengaluru filed against the
petitioners for alleged violation of Section 18(a)(i) which is
punishable under Section 27(a) of Drugs and Cosmetics
Act, 1940.
*****
This criminal petition coming on for orders, through
video conference, this day, the court made the following:
Crl..P.No.6865/2020
3
ORDER
1. Sri. Desu Reddy.G., learned counsel for the petitioners seeks two weeks time to comply with office objections. He however requests for the matter to be taken up for hearing, pending compliance due to urgency.
2. The office objection not coming in the way of consideration of the above matter. His request is acceded to and the matter is taken up for hearing.
3. The petitioners are before this Court seeking for quashing of the proceedings in Spl.C.C.No.154/2020 on the file of the learned Principal City Civil and Sessions Judge(CCH-1), Bengaluru for alleged violation of section 18 (a) (i) which is punishable under Section 27 (a) of Drugs and Cosmetic Act, 1940.
4. Sri. Desu Reddy.G., learned counsel for petitioners would submit that in terms of annexure-'A' and 'B' i.e. test certificate issued by The Government Crl..P.No.6865/2020 4 Analyst under Section 25(1) of the Drugs and Cosmetics Act, 1940 stating that the sample of drug is not of standard quality and the second sample examined by the Central Drugs Laboratory. A similar report was issued by the said laboratory on 04.11.2019.
5. Sri. Desu Reddy.G., learned counsel for the petitioners submits that the product being one which is not of standard quality does not fall within the meaning of Section 27 (a) of Drugs and Cosmetic Act, 1940 and therefore could not be tried before the Special Court under Section 36(1) of the said Act.
6. He submits that the continuance of the proceedings before the Special Court is not permissible insofar as the offence under Section 27(a) is concerned.
7. Heard Sri. Desu Reddy.G., learned counsel for the petitioners.
Crl..P.No.6865/20205
8. Provision under Section 27(a) of the Drugs and Cosmetic Act, 1940 is reproduced hereunder for easy reference:
"Section 27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter
-
Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,-
(a) any drug deemed to be adulterated under Section 17A or spurious under Section (17B and which) when used by any person for or in the diagnosis, treatment, mitigation, or prevention or any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be (punishable with ten years but which may extend to imprisonment of life and shall also liable to fine which shall not be less than ten thousand rupees or three time value of the drugs confiscated, whichever is more."
(emphasis supplied by me)
9. A perusal of the above said provision would indicate that the offence under Section 27(a) of the Act, is not Crl..P.No.6865/2020 6 only when the drug is adulterated and spurious as contended by Sri.Desu Reddy.G., learned counsel for the petitioners but also of the sample is not of standard quality which is clear from the said provision itself. Section 36AB of the Act is any offence under clause (a) and (c) of Section 27 of the Act to be triable by the Special Court, the Section 36AB of the said Act is reproduced here for easy reference:
"Section 36-AB, Special Courts - (1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences relating to adulterated drugs or spurious drugs punishable under clause (a) and (b) of Section 13, sub-section (3) of Section 22, clause (a) and (c) of Section 27, Section 28, Section 28-A, Section 28-B and clause
(b) of sub-section (1) of Section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Sessions as a Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification.
10. In view of the fact that the test report which indicates the drugs to be not of standard quality amounting to an offence under Section 27(a) of the said Act, it is required Crl..P.No.6865/2020 7 under Section 36AB of the Act. Then the said offence is trial by the Special Court.
Thus, the contention of Sri.Desu Reddy, learned counsel for the petitioners that the Special Courts could not try the matter relating to the said drug is not proper and correct and also not in accordance with law. In view thereof, the petition is dismissed.
Sd/-
JUDGE SSD