Telangana High Court
M/S. Pfizer Limited vs The State Of Telangana on 19 October, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HONOURABLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.4503 of 2019
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure for quash of the proceedings against the petitioners-accused Nos.1 and 2 in C.C.No.658 of 2018 on the file of learned X Additional Chief Metropolitan Magistrate at Secunderabad, cognizance of which was taken for the offence under Section 8 read with Section 3 (d) appended with S.No.19 of Schedule punishable under Section 7 (a) of the Drugs and Magic Remedies (Objectionable Advertisement) Act (herein after will be referred as "the Act" in short.
2. The facts in brief as can be seen from the record available before this Court as per the Drug Inspector, Secunderabad Zone
- Sales (FAC), Drugs Control Administration, Vengalraonagar, Hyderabad, are as under:
a) On 30.08.2017 the Drug Inspector along with panch witnesses LWs 3 and 4 and LW2 went to the premises of M/s.
Raja Rajeswari Medical and General Stores, D.No.11-3- 266/15/3/1/2, Shop No.1, Ground Floor, Mahmoodguda, Warasiguda, Secunderabad. The said M/s. Raja Rajeswari 2 Medical and General Stores is a partnership firm, wherein one of the partners Mrs.Sangam Hemalatha is holding drug license bearing No.246/HD/AP/2002/R in From 20 and 21 having validity upto 27.02.2021. On inspection, the de-facto complainant and other witnesses found a drug namely "Anacin (Acetaminophen and Caffeine tablets (USP)" stocked in a quantity of 14 x 10 tablets printed with an indication as "for Symptomatic relief from headache, body-ache, toothache and pain associated with cold and fever" which is a contravention of Section 3 (d) appended with S.No.19 of the Schedule of the Act. The said drug was seized having its batch No.620-07413S, Mfg.Date: 09/2016, Exp. Date: 08/2019, manufacture in India by: M/s. Pfizer Limited, the Capital - A Wing, 1802, 18th Floor, Plot No:C-70, G-Block, Bandra - Kurla Complex, Bandra East, Mumbai - 400 051 At Sirinagar, Vijayawada, Krishna District, Andhra Pradesh 520 007 (Mfg Lic.No:33/KR/AP/2003/F/CC(L) under the cover of seizure panchanama and obtained acknowledgment.
b) A letter dated 30.08.2017 was served to LW8 one of the partners of the firm with a request to disclose the source of supply of the drug. Simultaneously on 31.08.2017 as mandated under Section 8 (d) of the Act, the de-facto 3 complainant has intimated about the seizure to the learned Magistrate concerned. On 01.09.2017, the de-facto complainant has addressed a letter to the Joint Director, Licensing and Controlling Authority, Drugs Control Administration, Vengalraonagar, Hyderabad narrating the details of the seizure and other subsequent events.
c) On 11.09.2017 a reply was received vide Letter dated 11.09.2017 along with corresponding documents from LW5, wherein it was stated that LW5 is the Managing Partner and responsible for the day to day activities and Anacin Drug bearing batch No.620-07413S, Mfg.Date: 09/2016, Exp. Date:
08/2019, manufactured in India by: M/s. Pfizer Limited is purchased from M/s. Sunny Enterprises, D.No.10-363/6, Satyaraghavendra Nagar Colony, Neredmet X Road, Malkajgiri (M), Medchal District - 500 047 vide Bill No. CC5913 on 19.06.2017. On 14.09.2017 the de-facto complainant has addressed a letter to M/s. Sunny Enterprises with a request to confirm the sale of said batch of drug to M/s. Sri Raja Rajeswari Medical and General Stores, Warasiguda, Secunderabad. On 04.10.2017 the de-facto complainant has received a reply alogn with corresponding documents and it was mentioned that the said Anacin drug with bearing batch No.620-07413S, Mfg.Date:4
09/2016, Exp. Date: 08/2019, manufactured in India by: M/s.
Pfizer Limited is purchased from M/s.JOELS Pharma, Bhavani Nagar, Mallapur, Hyderabad - 76 vide bill No.5581 dated 06.06.2017.
d) On 11.10.2017 the de-facto complainant has addressed a letter dated 11.10.2017 to M/s. Pfizer Limited, C/o. Kanchan Logistics, Plot No.9, Block No.37, Autonagar, Vanasthalipuram, Hayathnagar Mandal, R.R. District with a request to furnish the purchase and sale details of the above said batch of drug and also to confirm the sale of the said batch of drug to M/s. JOELS Pharma, Bhavani Nagar, Mallapur, Hyderabad - 500 076.
e) On 13.10.2017 the de-facto complainant has received a reply alogn with corresponding documents from Mr.B.V.R. Prasad (Power of Attorney) representing M/s. Pfizer Limited (Carrying and Forwarding Agent "CFA": M/s. Kanchan Logistics) Plot No.9, Block No.37, Autonagar, Vanasthalipuram, Hayathnagar (M), Ranga Reddy District, wherein it is stated that M/s.Kanchan Logistics is the CF & A Agent for M/s. Pfizer Limited. It was also stated that the batch of drug is brought vide Goods Receipt No.GF84000192 dated 14.11.2016 vide challan No.160612 dated 10.11.2016 from M/s.South India 5 Research Institute (P) Limited, Sirinagar, Vijayawada, Krishna District of quantity 42280 strips and the same is sold to its different customers/dealers vide various invoices including the billing of said batch of drug to M/s.JOELS Pharma with invoice No.V847000050 dated 29.12.2016 of quantity of 620 strips. On 13.10.2017 the de-facto complainant has served a notice dated 13.10.2017 to M/s.Pfizer Limited, the Capital - A Wing, 1802, 18th floor, Plot No.C-70, G-Block, Bandra - Kurla Complex, Bandra East, Mumbai - 400 051 (through C & F Agent: C/o. Kanchan Logistics, Plot No.9, Block No.37, Autonagar, Vanasthalipuram, Hayathnagar, Ranga Reddy District) under acknowledgment to furnish the manufacturing drug licenses held to manufacture for sale/distribute the drugs along with list of products approved by licensing authority under such license, constitution of particulars along with details of list of directors, managing director, partners etc responsible under Section 9 of the Act for the day to day affairs of the company and batch manufacturing record and sale particulars of seized drug Anacin and other details, more particularly explanation for printing on the label of subject drug having said indictation "fever" viz., contravention of Section 3 (d) appended with S.No.19 of the Schedule of the Act.
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f) On 18.10.2017 a reply was received from Mr.Prajeet Nair
- Company Secretary of accused No.1 firm requesting for 15 days extension to respond for the reply. On 01.11.2017 a reply was received from Ms. Sandhya Amanna, Senior Manager -Legal representing M/s. Pfizer Limited confirming that they are manufacturing "Anacin" with label printed on it having indication as "for symptomatic relief from headache, bodyache, tooth ache and pain associated with cold and fever" and also informed that accused No.2 is the Managing Director. Finally on completion of investigation, complaint is filed stating that accused No.1 firm represented by accused No.2 found that printing on the strips of said drug having indication as "for symptomatic relief from headache, bodyache, tooth ache and pain associated with cold and fever" and thereby alleged that the petitioners have contravened Section 3 (d) appended with S.No.19 of Schedule punishable under Section 7 (a) of the Act. Learned X Additional Chief Metropolitan Magistrate at Secunderabad has taken cognizance of the said complaint as C.C.No.658 of 2018. Aggrieved by the same, the petitioners have filed the present criminal petition to quash the proceedings against them in C.C.No.658 of 2018 on the following grounds: 7
i) The petitioners have strictly complied with the requirements set out under the Act.
ii) The indications of the drug as printed on its label suggests that it can diagnose, cure, mitigate, treat or prevent fevers and is therefore violative of section 3 (d) appended with serial number 19 of the Schedule of the said Act.
iii) Printing of "for Symptomatic relief from headache, body-
ache, toothache and pain associated with cold and fever" on the label of the drug makes it clear that the indication of the drug is for symptomatic relief of headaches and toothaches only (which are not diseases, disorders or conditions listed in the schedule of the said Act) and does not in any way diagnose, cure, mitigate, treat or prevent either fever, as alleged, or any other disease, disorder or condition as stipulated in the schedule of the said Act. Thus, there is no contravention of section 3 (d) appended with serial number 19 of the Schedule of the said Act.
iv) The complainant has misguided and misinterpreted the Act as the word "fever" indicated on the label of the drug would not result in contravention of provisions of the Act. The word "fever' was read in isolation and complete reading of the label 8 would demonstrate that they printed pain associated with cold and fever and not in isolation.
v) The complainant failed to show as to how the indication printed on the drug does not in any way suggest as any kind of cure either for fever or for any of the disease, conditions or disorders listed in the schedule to the said Act and thereby the complainant failed to satisfy the basic requisites to demonstrate that the indication of the said drug violates Section 3 (d) of the said Act.
vi) Learned Magistrate ought not to have taken cognizance against the petitioner.
vii) The complaint is totally misconceived and the complainant has not followed any of the provisions of the Act.
3. Heard Sri R.N.hemendranath Reddy, learned senior counsel representing Ms.K.Keerthi Kiran, learned counsel on record for the petitioners and Sri S. Ganesh, learned Assistant Public Prosecutor.
4. Now the point for determination is:
"Whether the proceedings against the petitioners-accused Nos.1 and 2 in C.C.No.658 of 9 2018 on the file of learned X Additional Chief Metropolitan Magistrate at Secunderabad, can be quashed under Section 482 of the Code of Criminal Procedure?
5. Section 3 of the Drugs and Magic Remedies (Objectionable Advertisement) Act is as follows:
"3. Prohibition of advertisement of certain drugs for treatment of certain diseases and disorders:
Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for--
(a) the procurement of miscarriage in women or prevention of conception in women; or
(b) the maintenance or improvement of the capacity of human beings for sexual pleasure; or
(c) the correction of menstrual disorder in women; or [(d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule, or any other disease, disorder or condition (by whatsoever name called) which may be specified in the rules made under this Act:
Provided that no such rule shall be made except--
(i) in respect of any disease, disorder or condition which requires timely treatment in consultation with a registered medical practitioner or for which there are normally no accepted remedies; and
(ii) after consultation with the Drugs Technical Advisory Board constituted under the Drugs and 10 Cosmetics Act, 1940 (23 of 1940), and if the Central Government considers necessary, with such other persons having special knowledge or practical experience in respect of Ayurvedic or Unani systems of medicines as that Government deems fit.]
6. Serial No.19 appended to the schedule of the Act refers to "fevers (in general)".
7. Section 7 of the Act imposes penalty for contraventions of the provisions of the Act, which reads as follows:
"7. Penalty.--Whoever contravenes any of the provisions of this Act 3 [or the rules made thereunder] shall, on conviction, be punishable--
(a) in the case of the first conviction, with imprisonment which may extend to six months, or with fine, or with both;
(b) in the case of a subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both."
8. In the letter, dated 13.10.2017 addressed to the first petitioner, the Drug Inspector has mentioned in the second page about the seizure of the drugs etc and ultimately stated as follows:
"Also give the reason or furnish your explanation for printing on the label of subject drug having the above said indication, "FEVER", viz contravention of Section 3 (d) appended with S.No.19 of the Schedule of DMR (OA) Act 1954 & Rules 1955."11
9. To the above said letter, the Pfizer Limited has addressed letter dated 18.10.2017 seeking 15 days time to give reply. In the reply given subsequently, the first petitioner has clearly mentioned that the restrictions imposed at S.No.19 of the Schedule of the Act are in respect of fever (in general) and the so called printing on the label, does not speak that the drug will cure fevers in general. Therefore, it is required to see what actually label on the drug speaks, which read as under:
"ANACIN.
MULTI PAIN.
Quick Relief from Multiple Pains.
For Symptomatic relief from Headache Bodyache Backache Joint pain Toothache Pain associated with cold & fever"
10. On going through the above, it is clear that the label speaks that the drug Anacin will give a quick relief from multiple pains. Pain is a generic word. The label further clarifies as to what kind of pain, the drug likely to give relief. Various kinds of pains for which drug Anacin will give relief are printed on the label are headache, bodyache, toothache, joint pain and pain associated with cold and fever and sixth pain is explained as "pain associated with cold and fever". According to 12 the label, the drug gives relief to the pain if associated with cold and fever.
11. On going through the label, it is clear that label is not giving any indication that the drug Anacin will give relief to the fever. If a person has been suffering from pain, cold and fever, the label gives an indication that it will cure the pain and does not indicate that it will give relief to either cold or fever. In such situation, if Anacin drug is used, it will give quick relief to the pain only and label does not say that Anacin drug would give relief either to the cold or to the fever. The label is crystal clear that it will give relief not to the fever but to the pain, if it is associated with cold and fever. Therefore, on complete reading of the label, it is clear that intention of the manufacturer is not to make the people believe that the drug Anacin would give relief to the fever but it will given relief to the pain, if it is associated with cold and fever. Therefore, the contention of the complainant that the label on the Anacin Drug contravenes the rules and provisions of the Act is not convincing and thus, cannot be accepted.
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12. In K.S.Saini v. Union of India1 the High Court of Delhi held as follows:
"6. The last offending portion is at page 8 of the Urdu pamphlet where the medicine "Sainimine 'M'' has been advertised. This, when translated, reads: "For those men who always feel restless and have lost vigor due to use of narcotics or by ill- practices during their young days or for those who feel pain in calves or back or experience darkness in sight due to weakness of the brain, this general tonic for men has been prepared in Santan Research Laboratory from 75 herbs collected from Himalayas and other fields in India by Ayurvedic System and scientific methods. Any type of weak male should for 2 or 3 months". The last paragraph does not appear to be complete but by reference to the English pamphlet, Annexure 'A' to the petition, it appears that the substance of this paragraph is that the medicine is recommended to males suffering from weakness due to any of the factors mentioned hereinabove. The suggestion of Mr. Shankar is that this part of the pamphlet violates Section 3(b). I am afraid, I cannot agree. The pamphlet does not suggest the use of the medicine for the maintenance or improvement of the capacity of human beings for sexual pleasure. To say that those males who have become weak due to the ill effects of using narcotics or ill practices during younger age, can benefit from this medicine as a general tonic does not have, in my opinion, any relation to its use for sexual pleasure. One cannot lose sight of the fact that it is a criminal prosecution and I cannot permit that unless the acts of the petitioners fall clearly within the prohibition of the criminal law. A penal law must be construed with such strictness as to carefully guard the rights of the persons charged with the offence as otherwise the zeal of the prosecutor may override the mandate of the Legislature. I am not prepared to 1 (1967) 3 DLT 116 14 accept that even the passage at page 8 offends Section 8(b) of the Act.
7. The result is that even accepting the allegations in the complaint at their face value, no offence is made out. The petition, therefore, must be allowed and prosecution of the petitioners under Section 3 (b) and (d) of the said Act pending before Additional Judicial Magistrate, Delhi, quashed. I order accordingly. Having regard, however, to the circumstances of the case, there will be no order as to costs."
13. In Anand Mohan Chhaparwal and etc., v. State and another2 the High Court of Bombay held as follows:
"8. The learned counsel for the petitioners then took me through a decision of the Karnataka High Court which deals with the very same Act in a case in State of Karnataka v. Dr. R. M. K. Sivasubramanya Om, 1978 Cri LJ 853. Certain observations in that judgment are very relevant to be referred to in this case in hand also. In discussing the implication of the advertisement in question in that case in the background of Section 3(b), the Division Bench of the Karnataka High Court has observed thus in paragraph 14 :-
"..... The publication of an advertisement, to amount to an offence, should have reference to a drug and that should have been suggested as a cure for certain ailments mentioned in Cls. (a) to (d) of Section 3 ...... The whole object of the Act is to save 2 1995 SCC Online Bom 498 15 ignorant people from being duped to purchase medicines just because their effect is advertisement in eloquent terms.
But while making that act punishable the law has laid down certain norms. To bring the act of an accused within the mischief of law all the ingredients of that offence will have to be strictly proved by the prosecution."
Then the Division Bench of the Karnataka High Court continued to hold in paragraph 15 as under :-
"In Ex. P-1(a) though it was advertised that 'Amazatone' is a special invigorative nervine tonic useful for all and will help to restore, regain and retain vim, vigour and vitality, it is nowhere even obliquely stated that it is a cure for impotence or that it helps the maintenance or improvement of the capacity of human beings for sexual pleasure."
Shri Usgaoncar then drew my attention to another decision of this Court reported in Smt. Kantirani Jaynarayan Mangal v. The State of Maharashtra, 1982 Cri LJ 1454. It is also a case coming under the Act. The learned single Judge of this Court was examining the scope of Section 3(b) of the Act. In paragraph 17 the learned Judge observed thus :-
"But in view of the aims and objects of the Act mentioned in the preamble, I am inclined to think 16 that the main purpose of the Act is to prohibit such magic remedies and so restrictions will have to be made on such advertisements containing reference to magic cure. Remedies provided for health, sociability or developing beauty are not hit by the section. The remedies referred for immediate and forthwith cure giving hopes to the customers in a magic fashion are prohibited."
9. In view of the above proposition of law with regard to the scope of Section 3(b) of the Act propounded by the High Courts including our High Court, I find that there is considerable force in the contention of the learned senior counsel. Shri Usgaoncar. Section 3(b) does not prohibit any advertisement which may suggest or calculate to lead to the use of that drug or medicine to improve his vitality or vigour. Going by the dictum laid down by this Court, the sociability and beauty is not a thing that is prohibited under the Act. The advertisement in question only deals with the vitality and vigour of men. It is common knowledge that man's beauty lies in his vigour and vitality also. Therefore this advertisement in question however deals with only the beauty of the men and speaks nothing about sexual pleasure of the men in order to attract the application of Section 3(b) of the Act.
10. In view of the above discussions I find that even though the complaint is maintainable on the point of limitation as observed by the learned Magistrate and the learned Sessions Judge, on merits I find that the complaint 17 did not constitute an offence to attract Section 3(b) read with Section 7 of the Act. Therefore, the issue of process by the Magistrate against the petitioners is clearly an abuse of the process of the Court. It is needless to say that when a complaint does not constitute necessary legal ingredients for an offence it is illegal for a Magistrate to take cognizance of that offence. Therefore in my view the complaint filed before the Magistrate does not disclose any offence under the Act. Therefore the process issued against the petitioners has to be set aside."
14. In view of the principle laid down in the above said authorities and also considering the submissions of both sides, this Court is of the opinion that continuation of the proceedings against the petitioners in C.C.No.658 of 2018 on the file of learned X Additional Chief Metropolitan Magistrate at Secunderabad amounts to abuse of process of law.
15. Accordingly, the Criminal Petition is allowed and thereby proceedings against the petitioners - accused Nos.1 and 2 in C.C.No.658 of 2018 on the file of learned X Additional Chief Metropolitan Magistrate at Secunderabad are hereby quashed.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 19.10.2022 AS