Madras High Court
M/S.Y.V.S.&Co vs The State Rep. By The Drugs Inspector on 14 June, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.6127 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2022
CORAM
THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.6127 of 2020
and Crl.M.P.No.3430 of 2020
1. M/s.Y.V.S.&Co.,
Represented by its Managing Partner
cum Person incharge,
Y.V.Niranjan Krishna
2. Y.V.Niranjan Krishna
Managing Partner cum Person incharge
M/s.Y.V.S.& Co.
Both having office at
138, Audiappa Street,
Chennai – 600 001. ... Petitioners
Vs
The State rep. by the Drugs Inspector,
George Town Range,
Office of the Assistant Director of
Drugs Control (Zone-1),
DMS Campus,
259-261, Anna Salai, Teynampet,
Chennai – 600 006. ... Respondent
PRAYER: Criminal Original Petitions filed under Section 482 of Cr.P.C,
praying to call for records in C.C.No.1779 of 2019 pending on the file of the
XV Metropolitan Magistrate at George Town, Chennai and quash the same.
Page 1 of 18
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.6127 of 2020
For Petitioners : Mr.ARL.Sundaresan, Senior Counsel
For Mr.T.D.Selvan Babu
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
ORDER
This petition has been filed to quash the proceedings in C.C.No.1779 of 2019 on the file of the XV Metropolitan Magistrate Court, George Town, Chennai, thereby taken cognizance for the offences punishable under Section 27(A)(ii) of the Drugs and Cosmetics Act, 1940 (herein after called as “the Act”), as against the petitioners.
2. The respondent lodged complaint for the offence punishable under Section 27(A)(ii) of the Act, as against the petitioners. The respondent on 13.08.2018 had inspected the premises of the first accused and found that the first accused firm is not holding any cosmetics manufacturing licenses, but they stocked the Kum Kum cosmetics for distribution in the premises in contravention of Section 18 of the Act. The first accused firm also stocked for sale the following cosmetics items :-
Page 2 of 18https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 S.No. Name of the Cosmetic Quantity 1 Thalamboo Red Small tins, 7X20X10's B.No.Nil, Mfd Jun-2018, Best before 12 months Mfd by M/s.Y.V.S.No.138, Audiappa Street, Chennai – 600 001.
2 Thalamboo Dark Small Tins, 17X10's
B.No. Nil, Mfd Aug-2018,
Best before 12 months, Mfd
by M/s.Y.V.S. No.138,
Audiappa Street, Chennai –
600 001.
3 Gopuram Kum Kum, B.No. 98X10's
Nil, Mfd : Nil, Best before :
Nil, Mfd by M/s.Y.V.S.
No.138, Audiappa Street,
Chennai – 600 001.
4 Gopuram Manjal Kum Kum, 15X1 Kg
B.No. Nil, Pkd. May, 18, Exp.
Apr 19, Best before : Nil, Mfd
by M/s.Y.V.S. No.138,
Audiappa Street, Chennai –
600 001.
Further, the cosmetic mentioned above were sold by the first accused firm and no license for manufacturing of cosmetics has been granted for the said premises, which is contravention of Section 18 of the Act. The standards for cosmetics were mentioned in schedule 'S' of Drugs and Cosmetics Rules, 1945. In that, Kum Kum powder was included in Serial No.27. In order to Page 3 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 check the quantity of the said products sample were drawn for analysis on 13.08.2018. The analysis report declared as “standard quality” by the analyst.
2.1. Further revealed that there is no licenses for manufacturing of Kum Kum powder for the said premises and the accused are having their manufacturing unit at different address which also unlicensed. Therefore, the respondent issued show cause notice dated 22.02.2019. In fact, it was challenged before this Court in W.P.No.12436 of 2019 and the same was dismissed by this Court. The second accused by explanation dated 14.05.2019 stated that Gopuram red and Manjal Kumkum is used as religious purpose in temples and religious mark by individuals and it did not come under the definition of the cosmetic. However the explanation was not accepted and filed the present complaint.
3. Mr.ARL.Sundaresan, learned Senior Counsel appearing for the petitioners submitted that the petitioners have been involved in preparing and selling of Kumkum in the name of Gopuram brand for the past several Page 4 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 years. The traditional Hindu temples and religious Mutts use Kumkum powder made of turmeric powder and starch only that gives red colour and is used for pooja and religious purposes. Therefore, the Gopuram Kumkum sold by the petitioners do not fall under the category of cosmetics defined under the Act, and the conditions of the Bureau of Indian Standards (herein after called as “the BIS”) tests meant for cosmetic Kumkum is not applicable to their products.
3.1. He also relied upon the judgment reported in (1978) 2 Mad LJ 131 in the case of Y.V.Seshachalam & Co. and anr, Vs. The Secretary to Government of Tamil Nadu, in which, this Court distinguished the conventional red or manjal kumkum from the cosmetic kumkum and held that the religious red of manjal kumkum need not to take out any cosmetic licence.
3.2. The learned Senior counsel further submitted that the complaint was filed on 30.08.2019, whereas the date of inspection was on 13.08.2018. The time limit for launching prosecution is one year, whereas Page 5 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 the complaint was lodged only on 30.08.2019, which beyond the period of one year. In this regard, he relied upon the judgement of the Hon'ble High Court of Delhi reported in 2021 SCC Online 5609 in the case of Sanofi India Limited and anr Vs. Union of India and anr., which held as follows:-
“24. Furthermore, the contention of the learned CGSC that a complaint could not be filed without obtaining an authorisation in writing cannot be accepted. Chapter IV of the Drugs and Cosmetics Act, 1940 deals with manufacture, sale and distribution of drugs and cosmetics. Section 32 of the Drugs and Cosmetics Act, 1940, which provides for cognizance of offences reads as under:
"32. Cognizance of offences. -- [(1) No prosecution under this Chapter shall be instituted except by--
(a) an Inspector; or
(b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or
(c) the person aggrieved; or Page 6 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020
(d) a recognised consumer association whether such person is a member of that association or not. (2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shall try an offence punishable under this Chapter.] (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter."
25. A perusal of Section 32 of the Drugs and Cosmetics Act, 1940 shows that prosecution can be instituted by an Inspector or by any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government or the person aggrieved or a recognised consumer association whether such person is a member of that association or not. This Section stipulates that sanction has to be obtained under Chapter (IV) of the Drugs and Cosmetics Act, 1940. Admittedly, the petitioner is accused of an offence covered under Chapter (IV) of the Drugs and Cosmetics Act, 1940. Section 32 of the Drugs and Cosmetics Act, 1940 only stipulates as to who is authorised to file a complaint. The Page 7 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 complaint in this case is filed by Inspector whose authorisation is not required. Section 32 of the Drugs and Cosmetics Act, 1940 does not require sanction to be obtained from the competent authority for filing the complaint.
26..............................
27. A perusal of Section 33M shows that for an offence under Chapter IVA of the Drugs and Cosmetics Act, sanction of the authority specified under sub-section (4) of section 33G is required. There is no requirement of obtaining any sanction for an offence under Chapter IV of the Drugs and Cosmetics Act.
28. In the present case the report has been received by the Drug Inspector on 21.04.2016 and, therefore, the terminus quo for limitation would start from 21.04.2016. The complaint which has been filed on 02.09.2019 is, therefore, clearly out of the limitation period prescribed under Section 468 of the Cr.P.C.
29. The right which is accrued to the accused as a result of the expiry of the limitation period is a valuable right that flows from the accused's right to a speedy and fair trial as conceptualized under Article 21 of the Constitution of India. Accordingly, the cognizance that is taken by a Court in view of Section 473 Cr.P.C. extending Page 8 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 the limitation period requires notice to be issued to the accused, hearing of both the accused and the complainant, and the consequent decision must display the Court's application of mind and should provide reasons for extending the limitation.
30. It is trite law that it is the duty of the Court to see whether a complaint has been filed within limitation or not. Though Section 473 Cr.P.C. states that extension of period of limitation cannot be granted if the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. There is no material on record to show that the Trial Court sought for any reasons for condoning the delay and further nothing is there to show that the State has made any endeavour to explain the delay in filing the complaint. The reason given by the learned CGSC that the complaints can be instituted only after getting the authority from the State under Section 32(a) of the Drugs and Cosmetics Act cannot be accepted in this case for the reason that no sanction is required for instituting a complaint in an offence under Chapter IV of the Drugs and Cosmetics Act, 1940.
31. A reading of the impugned Orders of the learned Trial Court in conjunction with the law of Page 9 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 limitation reveals to this Court that the learned Trial Court has erred in taking cognizance of Criminal Complaint No. 16817/2019 and that the impugned Order dated 30.09.2019 fails to justify as to why the issue of limitation was not raised in the impugned Order.” Hence, he prayed for quashment of the above proceedings as against the petitioners.
4. The learned Government Advocate (Crl. Side) filed counter and submitted that already the petitioners challenged the show cause notice in W.P.No.12436 of 2019 and this Court dismissed the said Writ Petition.
Though, the conventional red/manjal Kumkum powder used for religious purpose are exempted from the cosmetics license, it was included in the Schedule 'S' of the Act in the year 1995 only, that is after 17 years from the judgment given in the year 1978. The definition of cosmetics in the Act is mentioned in Section 3(aaa) of the Act, as follows :-
“Cosmetic means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting, attractiveness or Page 10 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 altering the appearance, and includes any article intended for use as a component of cosmetic” As per Rule 150A of the Drugs and Cosmetics Rules, the standards for cosmetics shall be such as may be prescribed in Schedule “S”. It has the standards for cosmetics in finished form viz., the following cosmetics in finished form shall conform to the Indian Standards specification laid down from time to time by the BIS. The Kumkum powder is present in Schedule 'S' in serial No.27, which is included in the year 1995. Further the BIS has classified the standard for Kumkum powder as IS 10999. The said Kumkum powder is applied for beautifying as such it comes under the cosmetics as per the Act.
4.1. He further submitted that as per Rule 139A of the Drugs and Cosmetics Rules, the form of licence to manufacture cosmetics for sale or for distribution is against application of Form 31, shall be granted in Form
32. Further the Rule 139AA of the Drugs and Cosmetics Rules, says about the inspection before grant or renewal of licence. The Schedule M-II of the Act says about the requirements of competent technical staff, manufacturing plant, testing equipments and the requirements of plant and equipment for Page 11 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 the manufacturing of cosmetics. Therefore, it comes under the category of Schedule M-II of the Act.
4.2. The learned Government Advocate (Crl.Side) further submitted that the case was filed on 30.08.2019, and the date of inspection was on 13.08.2018, proposal for sanction was sent on 17.07.2019 and the sanction was occurred on 27.08.2019 to prosecute the petitioners. Therefore, time for launching the prosecution is extended till 22.09.2019. Therefore, the complaint was lodged in time. Therefore, he prayed for dismissal of the quash petition.
5. Heard Mr.ARL.Sundaresan, learned Senior Counsel appearing for petitioners and Mr.A.Gopinath, learned Government Advocate (Crl.
Side) appearing for the respondent police.
6. The learned Senior Counsel appearing for the petitioners raised grounds on three floods viz., (i) the Kumkum sold by the petitioners did not fall under cosmetics as per the definition of the Act, as such the conditions Page 12 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 of BIS meant for cosmetic Kumkum are not applicable to the petitioners' products.
(ii) The second point is that the Kumkum is used for religious purpose and therefore, the manufactures need not to take out any cosmetics licence. The manufacturing of the Kumkum which is used for religious purpose does not require any licence and no offence is made out as against the petitioners.
(iii) The last ground is that the launching of prosecution does not required any sanction from the competent authority. When it being so, the period for getting authorization and any sanction cannot be adjusted from the period of limitation for launching the prosecution.
7. The Chapter IV of the Act deals with manufacture, sale and distribution of drugs and cosmetics. Section 32 of the Act which provides for cognizance of offences reads as under :-
“32. Cognizance of offences. -- [(1) No prosecution under this Chapter shall be instituted except by--
(a) an Inspector; or Page 13 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020
(b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or
(c) the person aggrieved; or
(d) a recognised consumer association whether such person is a member of that association or not. (2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shall try an offence punishable under this Chapter.] (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter."
It stipulates that sanction has to be obtained under Chapter IV of the Act.
Whereas the petitioners are accused of an offence covered under Chapter IV of the Act. The Section 32 of the Act only stipulates as to who is authorised to file a complaint.
8. In the case on hand, the complaint was filed by the Drugs Inspector whose authorization is not required. As per the provisions under Page 14 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 Section 32 of the Act, it does not require sanction to be obtained from the competent authority for launching prosecution. It is also relevant to extract the provisions under Section 33M of the Act, which deals with the offences falling under Chapter IVA of the Act, as follows :-
“33M. Cognizance of offences :-
(1) No prosecution under this Chapter shall be instituted except by an Inspector [with the previous sanction of the authority specified under sub-section (4) of Section 33G] (2) No Court inferior to that [of a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter” It shows that for the offence under Chapter IV of the Act, sanction of the authority specified under sub-Section (4) of Section 33G is required. There is no requirement of obtaining any sanction for an offence under Chapter IV of the Act. Therefore, no sanction is required for launching the complaint for the offence under Chapter IV of the Act. However, the right which is accrued to the accused as a result of the expiry of the limitation period is a valuable right flows from the accused's right to a and fair trial as conceptualized under Article 21 of the Constitution of India. Whereas in the Page 15 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 present case, the inspection was made on 13.08.2018, the proposal for sanction was sent on 17.07.2019 and the sanction was accorded on 27.08.2019. The complaint was filed on 13.09.2019. Therefore, it beyond the period of one year and the complaint is barred by limitation.
9. In view of the above discussion, the impugned proceedings cannot be sustained as against the petitioners and it is liable to be quashed.
Accordingly, the proceeding in C.C.No.1779 of 2019 on the file of the XV Metropolitan Magistrate Court, George Town, Chennai, is hereby quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.
14.06.2022 Internet:Yes Index:Yes/no Speaking/non-speaking order rts Page 16 of 18 https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 To
1.The Drugs Inspector, George Town Range, Office of the Assistant Director of Drugs Control (Zone-1), DMS Campus, 259-261, Anna Salai, Teynampet, Chennai – 600 006.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Page 17 of 18https://www.mhc.tn.gov.in/judis Crl.O.P.No.6127 of 2020 G.K.ILANTHIRAIYAN. J, rts Crl.O.P.No.6127 of 2020 14.06.2022 Page 18 of 18 https://www.mhc.tn.gov.in/judis