Karnataka High Court
Girish Tekchandani vs The State By Inspector Of on 19 September, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION Nos.14063-14067 OF 2015 (GM-RES)
BETWEEN:
1. GIRISH TEKCHANDANI
AGED ABOUT 41 YEARS,
COMPANY SECRETARY,
NOVARTIS INDIA LIMITED,
SANDOZ HOUSE,
SHIVSAGAR ESTATE,
DR.ANNIE BESANT ROAD,
WORLI, MUMBAI-400018.
2. RANJIT SHAHANI
AGED ABOUT 65 YEARS,
VICE CHAIRMAN & MANAGING DIRECTOR,
NOVARTIS INDIA LIMITED,
SANDOZ HOUSE,
SHIVSAGAR ESTATE
DR.ANNIE BESANT ROAD,
WORLI, MUMBAI-400018.
3. CHRISTOPHER SNOOK
AGED ABOUT 61 YEARS,
CHAIRMAN,
NOVARTIS INDIA LIMITED,
SANDOZ HOUSE,
SHIVSAGAR ESTATE
DR.ANNIE BESANT ROAD,
WORLI, MUMBAI-400018.
WP.Nos.14063-14067/2015
2
4. JAI HIREMATH
AGED ABOUT 70 YEARS,
INDEPENDENT DIRECTOR,
NOVARTIS INDIA LIMITED,
SANDOZ HOUSE,
SHIVSAGAR ESTATE
DR.ANNIE BESANT ROAD,
WORLI, MUMBAI-400018.
5. DR. RAJENDRA NATH MEHROTRA
AGED ABOUT 66 YEARS,
INDEPENDENT DIRECTOR
NOVARTIS INDIA LIMITED,
SANDOZ HOUSE,
SHIVSAGAR ESTATE
DR.ANNIE BESANT ROAD,
WORLI, MUMBAI-400018. ...PETITIONERS
(BY SRI. ASHOK HARANAHALLI, SENIOR ADVOCATE
FOR SRI. S.M. ANEES AHMED, ADVOCATE)
AND:
1. THE STATE BY INSPECTOR OF
LEGAL METROLOGY, DAVANAGERE,
REPTD BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-01.
2. THE INSPECTOR OF LEGAL METROLOGY
OFFICE OF THE INSPECTOR
OF LEGAL METROLOGY,
DAVANAGERE SUB-DIVISION,
NO.3, P.J EXTENSION,
STADIUM ROAD,
DAVANAGERE (P.O) 577004
KARNATAKA. ...RESPONDENTS
(BY SRI. CHETAN DESAI, HCGP)
WP.Nos.14063-14067/2015
3
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER
DATED:12.03.2013 PASSED BY THE LEARNED J.M.F.C, II AT
DAVANAGERE IN C.C.NO.711/2013 IN TAKING COGNIZANCE
OF THE OFFENCE PUNISHABLE UNDER SECTION 18 OF THE
LEGAL METROLOGY ACT, 2009 AND ISSUING OF PROCESS
TO PETITIONERS NO.2 TO 6 HEREIN VIDE ANNEXURE-A
CONSEQUENTLY QUASH THE CRIMINAL PROCEEDINGS IN
C.C.NO.711/2013 ON THE FILE OF J.M.F.C. II AT
DAVANAGERE.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner No.1 is the Company Secretary of M/s.Novartis India Limited, which is a company registered under the Companies Act, 1956. It claims that it is a world leader in the research and development of products to protect and improve the health and well being in the core area of pharmaceuticals, vaccines, consumer health etc. Respondent No.2 who is the Inspector of Legal Metrology claims that on 13.09.2012, he visited a shop (of accused No.2) and collected two WP.Nos.14063-14067/2015 4 pre-packed containers with the brand 'Fasimec' containing Oral Flukicide and Broad Spectrum Dewormer [Triclabendazole 5% + Ivermectin 0.1% Drench (vet.)]. According to the complainant, though the said containers had the details like the manufacturer, manufacturing licence, quantity etc. printed on it, but it was not bearing the mandatory declaration i.e., telephone number for consumer complaint on that. Stating that the same constitutes an offence under Section 18(1) of the Legal Metrology Act, 2009 (hereinafter referred to as the "Act" for the sake of brevity) and under the Rules 6(2) and 18(1) of the Legal Metrology (Packaged Commodities) Rules, 2011 (hereinafter referred to as the "LMPC Rules" for the sake of brevity), which are punishable under Section 36(1) of the Act, respondent No.2-Inspector Instituted a complaint against the accused therein including the present petitioners under Section 200 Cr.P.C. in the WP.Nos.14063-14067/2015 5 Court of the learned J.M.F.C.-II at Davanagere (hereinafter referred to as the "Court below" for the sake of brevity). The Court below by its Order dated 12.03.2013, took cognizance of the offences, as such, the said private complaint was numbered as C.C.No.711/2013. Petitioner Nos.1 to 5 who claims to be accused Nos.5, 3, 4, 6 and 7, respectively have sought for quashing of the said C.C.No.711/2013.
2. It is the contention of the petitioner as well, the arguments of learned Senior counsel for the petitioner, Sri. Ashok Haranahalli, that the product with the name 'Fasimec' is a non-scheduled drug, as such, it is exempted under Rule 26(c) of the LMPC Rules. It is his further contention that the drug manufacturing licence issued by the competent authority shows that the product 'Fasimec' is a drug. Further, the clarification issued by the Drug Control Department of the Government of Karnataka WP.Nos.14063-14067/2015 6 also clearly mentions that 'Fasimec' is a non-scheduled formulation and it is a drug under the Drugs and Cosmetics Act and Rules. That being the case, the conclusion of the complainant banking upon the alleged clarification said to have been given by the Assistant Drugs Controller, Davanagere Circle, Davanagere stating that the 'Fasimec' with its composition won't come under the schedule, as such, it is not covered under Drugs (Price Control) Order, 1995 (hereinafter referred to as the 'DPCO' for the sake of brevity) is totally incorrect, as such, the criminal complaint filed solely based upon the alleged clarification said to have been given by the Assistant Drugs Controller deserves to be quashed.
3. Learned High Court Government Pleader appearing for the respondent in his submission, submitted that Rule 26(c) of the LMPC Rules, requires that the commodity, if comes under the DPCO, then only WP.Nos.14063-14067/2015 7 it is exempted, whereas, the 'Fasimec' won't come under the DPCO, as such, the Legal Metrology Act applies.
4. Rule 26(c) of the Legal Metrology (Packaged Commodities) Rules, 2011 is reproduced herein below:
"26. Exemption in respect of certain packages.- Nothing contained in these rules shall apply to any package containing a commodity if-
(a) xxx
(b) xxx
(c) It contains scheduled formulations and non-scheduled formulations covered under the Drugs (Price Control) Order, 1995 made under Section 3 of the Essential Commodities Act, 1955 (10 of 1955);
(d) xxx According to the said Rule, LMPC Rules under which the alleged offences have arisen resulting into an WP.Nos.14063-14067/2015 8 offence under Section 18(1) of the Act, is not applicable to any package containing the commodity, if it contains scheduled formulations and non-scheduled formulations covered under the DPCO. Thus, it is not necessarily the scheduled drugs under the DPCO, but even non-
scheduled drugs under the DPCO also gets the benefit of exemption from LMPC Rules, provided a non-scheduled formulation is a drug.
5. In the instant case, the composition of 'Fasimec' is shown to be Triclabendazole 5% + Ivermectin 0.1% Drench (vet.). The product is being manufactured under licence No.25/KD-543. A copy of licence for manufacturing is produced at Annexure-B. The said Annexure-B gives the same composition of Triclabendazole 5% + Ivermectin 0.1% Drench (vet.) and has also depicted its brand name as 'Fasimec' and has considered it as a drug falling under Drugs and WP.Nos.14063-14067/2015 9 Cosmetics Act. Thus, the Licencing Authority which has granted licence to manufacture the said commodity itself has identified the same as a drug.
6. Further, the clarification given by the State Government through the Department of Drugs Control and issued by the Deputy Drugs Controller on behalf of the Drugs Controller, which is at Annexure-K, dated 22.09.2014, addressed to M/s Novartis India Limited has clarified that 'Fasimec' [Triclabendazole 5% + Ivermectin 0.1% Drench (vet.)] is a non-scheduled formulation under the DPCO and is also a drug under the Drugs and Cosmetics Act and Rules. This clarification is given by none else than the Government Department specially meant for controlling the drugs. From these documents, it is clear that 'Fasimec' is also a drug with non-scheduled formulation.
WP.Nos.14063-14067/2015 10
7. The clarification said to have been given by the Assistant Drugs Controller, the reference about which is made in the complaint is also placed before this Court by both side for verification. The said clarification in the form of a letter of clarification dated 28.02.2013 issued by the Assistant Drugs Controller, Davanagere Circle, Davanagere in No.DCD/ADCD/724/DPCO/2012- 13, has clarified that the drug with composition Triclabendazole 5% + Ivermectin 0.1% Drench (vet.) is not covered under the DPCO. He has further clarified by giving the schedule of the drugs and showing 76 names of bulk drugs which fall under first schedule to DPCO. From the said reading of the letter of clarification, it is clear that the Assistant Drugs Controller has given his clarification confining to the first schedule viz., scheduled drugs. He has totally ignored the fact that a drug can also be in a non-scheduled formulation. Merely WP.Nos.14063-14067/2015 11 because a drug is not falling under the first schedule to DPCO, it cannot be considered that it is not a drug at all.
8. As already observed above, 'Fasimec' is considered to be a drug in a non-scheduled form by none else than the Drugs Controller vide Annexure-K. Thus, the clarification by a subordinate authority i.e., the Assistant Drugs Controller, since being a clarification confining to scheduled drug, the same cannot be an accurate clarification with respect to the non-scheduled formulation of a drug, as such, the complaint instituted based on an incorrect clarification with respect to a non- scheduled formulation drug which is 'Fasimec' in the instant case, has to be necessarily held as a complaint based on wrong conclusion with respect to the nature of the commodity.
9. Since the above analysis understands that 'Fasimec' is a non-scheduled drug, which falls under WP.Nos.14063-14067/2015 12 Rule 26(c) of the LMPC Rules, the same is exempted from the application of LMPC Rules. It is also for the reason that since 'Fasimec' comes under the DPCO, Order 15 of the DPCO itself prescribes the display of the commodity as to how it has to be made on its package. Thus, with respect to the very same commodity, two Acts cannot prescribe two different package conditions.
10. For all these reasons, I find more force in accepting the arguments of learned Senior counsel appearing for the petitioners. As such, the criminal action initiated against the petitioners herein appears to be on a wrong motion by the complainant therein. Therefore, taking cognizance by the Court below on the said complaint deserves to be quashed.
Accordingly, the petition is allowed. The taking of cognizance on 12.03.2013 by the learned J.M.F.C.-II, Davanagere in C.C.No.711/2013 is quashed.
WP.Nos.14063-14067/2015 13 Consequently, the criminal proceedings in C.C.No.711/2013 stands quashed.
Sd/-
JUDGE BMC