Karnataka High Court
M/S Elegant Drugs (P) Ltd And Ors vs The State By The Drug Inspector, on 6 October, 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION No.200614/2019
BETWEEN:
1. M/s Elegant Drugs (P) Ltd,
RS No.59/3A, Challamatti Village,
Kalghatagi Taluka, Dist: Dharwad,
Karnataka.
By its Managing Director
Petitioner No.2.
2. Sri. Goutham S.Oswal,
Age: Major, Managing Director
M/s Elegant Drugs (P) Ltd,
RS No.59/3A, Challamatti Village,
Kalaghatagi Taluka, Dist: Dharwad,
Karnataka.
3. Sri. Attamachand S.Oswal,
Age: Major, Managing Director
M/s Elegant Drugs (P) Ltd,
RS No.59/3A, Challamatti Village,
Kalaghatagi Taluka,
Dist: Dharwad, Karnataka.
... Petitioners
(By Sri Shivanand Patil, Advocate)
2
AND:
The State by the Drug Inspector,
Raichur, dist: Raichur
Through Public Prosecutor,
High Court of Karnataka
Kalaburagi Bench
Kalaburagi-585107.
... Respondent
(By Sri S.M.Patil, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C, praying to call for the records, hear the petitioner,
allow the petition and quash / set aside the impugned
order dated 16.11.2018 in Crl.R.P. 75/2018 IInd Addl.
District Session Judge Raichur the proceedings in CC
No.229/2011 pending on the file of Chief Judicial
Magistrate Raichur, in as much as it pertains to the
petitioner arrayed as accused No.7, 8 and 9, and also
grant such other relief's as this Hon'ble Court deems fit, in
the interest of justice and equity.
This petition coming on for admission this day, the
Court made the following:
ORDER
Petitioners 1 to 3 who are accused Nos.7 to 9 have filed this petition under Section 482 of Cr.PC seeking to quash the order dated 16.11.2018 passed in Criminal Revision Petition No.75/2018 on the file of the learned II Addl. District Session Judge, Raichur and the order dated 30.06.2017 passed by the learned Prl. Senior Civil Judge & 3 C.J.M., Raichur (for short referred to as 'Trial court'), in C.C No.229/2011 where under the application filed by these petitioners under Section 245(2) of Cr.PC. seeking discharge, was came to be rejected.
2. The brief facts of the case is that the State represented by the Drugs Inspector Raichur filed the complaint against accused No.1 to 9 for the offences punishable under Sections 18(a) (1) punishable under Section 27(d) of Drugs and Cosmetics Act, 1940. It is the contention of the complainant that accused No.1 is the Drug manufacturing company, accused No.2 to 6 are its Directors. Accused No.7 is the private limited company represented by accused No.8 and 9 as its Directors is the distributor of the Drugs in question. It is stated that on 02.08.1995 the complainant visited the District Health and Family Welfare Office, Raichur to investigate about the sale of Drugs by accused No.7 to the District Health and Family Welfare officer Raichur and to ascertain as to whether accused No.7 has charged excess price. Accused No.7 had 4 supplied 866 Ampoules of 2ml. Rantidine Injections manufactured by accused No.1 and sold vide bill No.3250 dated 10.05.1995 at the rate of Rs.3.25 per Injection. Complainant noticed the maximum retail price printed on the label as Rs.3.40 and on the pack of 10x2ml as Rs.34/-. Hence, a prohibitory order in Form 15 was issued. On 03.08.1995 preliminary investigation report was submitted to the Head office and he received instructions to further investigate in to the matter. During such investigation, the sample that was collected was sent for analysis to Government analyst who vide his report dated 25.11.1996 declared that the Drug in question is not of standard quality. Therefore, it is stated that accused Nos.1 to 6 have manufactured sub standard Drugs and same was being distributed by accused No.7 to 9 to the general public and thereby they have committed the offence.
3. The learned counsel for the petitioners submitted that these petitioners are only the sub distributors and the main distributor is not arrayed as 5 accused. Initially the allegation is that the Drug was being sold for higher rate. Subsequently it is alleged that the Drug is not of standard quality. Accused No.1 to 3 have already pleaded guilty. There is no allegation that these petitioners have tampered with the Drug in any manner. There is no allegation that there was any intention on the part of these petitioners to commit the offence. There is no specific allegation regarding commission of any such offence. Therefore, the proceedings initiated against these petitioners is not maintainable. He further submitted that as per Section 19(3) of the Act, the petitioners are entitled for protection from the prosecution. When the application for discharge of these petitioners was filed before the Trial court, same was came to be rejected. Hence, the learned counsel prays for quashing the impugned order passed by the trial court and also the order passed by the learned Sessions court upholding the rejection of the application filed by these petitioners.
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4. The learned High Court Government Pleader opposed the petition and contended that as per Section 18 of the Drugs and Cosmetics Act, not only the manufacturer but the person who is responsible for sale of the drug is also liable for prosecution and liable for penalty under Section 27 of the Act. These petitioners cannot seek protection under Section 19(3) of the Act when it is found that the Drug which was distributed is not of standard quality. The Trial court and the Revisional court considered these facts and rejected the prayer made by these petitioners. There is no merit in the claim made. Therefore he prays for dismissal of the petition.
5. Perused the material on record and considered the same in the light of the above submissions.
6. The allegation made in the complaint against these petitioners is that they had sold the Drug in question which was initially investigated for charging higher price. But subsequently it was found that the same was not of standard quality. Accused No.1 to 3 being the 7 manufacturers pleaded guilty. It is not disputed that accused No.7 is the private limited company which is the distributor of the Drug in question.
Section 18 (a)(i) of the Drugs and Cosmetics Act 1940 reads as under:
"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;
7. Bere reading of this provision discloses that not only the manufacture of Drugs and Cosmetics but also distribution or sale of the Drugs and Cosmetics which are 8 not of standard quality is prohibited and attracts the penal provision under Section 27 of the Act. Therefore contention of the petitioners that since accused Nos.1 to 3 have pleaded guilty, it will absolve these petitioners from responsibility cannot be accepted.
8. The learned counsel for the petitioners contended that the petitioners are entitled for protection under Section 19(3) of the Act.
Section 19(3) of the Act reads as under:
19. Pleas (1) xxx (2) xxx (3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves -
(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;
(b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and 9
(c) that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquire it.
9. This section makes it clear that the accused has to prove these requirements to seek protection from prosecution. Therefore the contention of the learned counsel also cannot be accepted.
10. The contention of the learned counsel that accused No.9 is only a Director of accused No.7 company cannot be accepted since he is named as Managing Director in the cause title of the petition filed before this court. Therefore, I am of the opinion that the order passed by the Trial court do not call for inference. If the petitioners are having any protection as contended, such defense could be raised before the Trial court at appropriate stage.
11. The learned counsel for the petitioners submitted that the prosecution is of the year 1996 and 10 sought for necessary direction for the Trial court to expedite the trial in the interest of justice. He submitted that the presence of the other accused could not be secured before the Trial court which is causing delay. These petitioners are entitled to seek necessary orders to expedite the Trial by the Trial court and if any such application is moved before the trial Court, the same is to be considered by the Trial court in accordance with law.
12. In view of the discussions held above, the petition is dismissed as devoid of merits.
Sd/-
JUDGE SMP