Madras High Court
M.Sujatha vs The State Of Tamil Nadu Represented By on 23 September, 2020
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
CRL.O.P.No.412 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2020
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.412 of 2020 and
Crl.MP.Nos.248 & 249 of 2020
M.Sujatha ... Petitioner
Vs.
The State of Tamil Nadu Represented by
Drugs Inspector,
Ambattur II Range,
O/o the Asst.Director of Drugs Control,
Zone IV, Chennai-600 006 ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C. praying to
call for the records in SC.No.130 of 2019 on the file of I Additional District and
Sessions Judge, Thiruvallur and quash the same insofar as the petitioner/1 st
accused is concerned.
For Petitioner : Mr.K.J.Parthasarathy
For Respondent : Mr.S.Karthikeyan,
Additional Public Prosecutor
ORDER
This petition has been filed to quash the proceedings in SC.No.130 of 2019 on the file of I Additional District and Sessions Judge, Thiruvallur insofar as the petitioner is concerned.
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2. The learned counsel for the petitioner would submit that there are totally three accused, in which the petitioner is arrayed as first accused. The respondent herein lodged complaint under Section 36 AB of the Drugs and Cosmetics Act, 1940 for contravention of Section 18(a) (i) r/w Section 17(B)(c) and also Section 17(B)(d) and Section 18(b) and 18A of Drugs and Cosmetic Act, 1940 alleging that on 21.02.2017 sample of drug record plus cough syrup manufactured by M/s.Romen Pharma Private Limited, which was drawn for analysis from the premises of the petitioner, the Government Analyst declared the sample as not of standard quality and it does not conform to label claim with respect to the content of Codeine phosphate 8.5 % and TriProlidine Hydrochloride (nil content). Therefore, the respondent issued show cause notice dated 18.04.2017 to the petitioner from whom the sample was drawn. In response to the show cause notice, the petitioner disclosed the purchase particulars and stated that the said drug was acquired from the second accused under the invoice No.113 dated 09.01.2017 of quantity 10 Nos. and also submitted the relevant documents to the respondent. Thereafter a joint inspection has been carried out with the premises of the second accused and issued show cause notice requesting to disclose the name and address of the person from whom they acquired the subject drug. The second accused stated that they have purchased the said drug from the third accused by placing order through whats app. During the inspection, 6 Nos. of the said drug http://www.judis.nic.in 2/12 CRL.O.P.No.412 of 2020 stocked for sale were also seized from the second respondent and deposited in the court. Thereafter show cause notice was issued to the third accused, but no reply was received from the third accused. Thereafter with the help of the Joint Controller of the State of Sikkim conducted joint inspection on 02.06.2017 at the address indicated in the label of the subject drug, found that the third accused company does not exist and it is fictitious one. Therefore, A1 to A3 are liable to be prosecuted for contravention of Section 18(a) (i) r/w Section 17(B)(c) and also Section 17(B)(d) and Section 18(b) and 18A of Drugs and Cosmetic Act, 1940.
2.1 He further submitted that the alleged contravention of Section 18(a) (i) r/w Section 17(B)(c) and also Section 17(B)(d) and Section 18(b) and 18A of Drugs and Cosmetic Act, 1940 are not at all attracted insofar as the petitioner is concerned. The trial court ought to have seen that under Section 19(3) of Drugs and Cosmetics Act, 1940, a person not being a manufacturer of drug or cosmetic or his agent or distributor thereof shall not be liable for contravention of Section 18, if proves that he acquired the drug from duly licensed manufacturer. In the present case, admittedly the petitioner purchased the alleged drug from the second accused by invoice dated 19.01.2017 and 26.02.2017. Further he submitted that the petitioner absolutely had no knowledge about that and did not know with reasonable diligence have ascertained the http://www.judis.nic.in 3/12 CRL.O.P.No.412 of 2020 subject drug in any way contravened the provisions of Section 18. In support of his submissions, he relied upon the following judgments:
(i) P.Sukumar Vs. State rep. by the Junior Drug Inspector, Salem reported in 2009 SCC Online 1644
(ii) N.Kumaresan and another Vs. State Rep.by Drugs Inspector, Kancheepuram reported in 2014 SCC online Madras 6875
3. Per contra, the learned Additional Public Prosecutor filed counter and submitted that during the course of investigation, found that the petitioner has contravened Section 18(a)(i) read with Section 17B (c) of said Act for having purchased, stocked, sold the spurious drug Record plus cough syrup, B.No.RP-16179 bearing the name of the company which does not exist or fictitious which is punishable under Section 27(c ) of said Act and Section 18(a)(i) read with Section 17B(d) of said Act for having purchased, stocked, sold the spurious drug Record plus cough syrup, B.No:RP-16179 which has been substituted wholly or in part by another drug or substance which is punishable under Section 27(c) of said Act. Also contravened Section 18(b) of Drugs and Cosmetic Act, 1940 for having stocked and sold spurious drug Record plus cough syrup, B.No:RP-16179 which has been manufactured without valid manufacturing drug licence, which is punishable under Section 27(d) of the said http://www.judis.nic.in 4/12 CRL.O.P.No.412 of 2020 Act. The said drug seized from the petitioner was declared as not of standard quality and it is spurious and does not have requisite therapeutic effect. The petitioner is being retailer involved in the purchase and sale of the subject drug purchased from the second accused, the provision under Section 19(3) of the Drugs and Cosmetics Act will not rescue the petitioner since there is a chance of uncertainty that the petitioner contravened Section 19(3)(b) of Drugs and Cosmetics Act, which states that each time the licencee should have due diligence on procuring the drugs. On each time purchase of medicines, the licencee has to verify the genuinity of the manufacturer and distributor and ascertain that the drug is not contravened the provisions of Drugs and Cosmetics Act.
3.1 He further alleged that the alleged drug is not only not of standard quality, but also spurious in content and the name of the manufacturer on the label does not exist. He further submitted that the respondent conducted detailed investigation in proper and fair manner and lodged the complaint. On perusal of the complaint, the trial court has rightly taken cognizance and as such quash petition filed by the petitioner is liable to be dismissed. He further submitted that the petition cannot be considered before this Court since all are mixed question of facts and it has to be considered only before the trial court during the trial.
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4. Heard Mr.K.J.Parthasarathy, learned counsel for the petitioner and Mr.S.Karthikeyan, learned Additional Public Prosecutor appearing for the respondent.
5. There are totally three accused, in which the petitioner is arrayed as first accused. The respondent lodged complaint alleging that the petitioner is the Proprietrix of M/s.Nolambur Medicals, has contravened Section 18(a) (i) r/w Section 17(B)(c) and also Section 17(B)(d) and Section 18(b) and 18A of Drugs and Cosmetic Act, 1940 for having purchased, stocked and sold spurious drug (record plus cough syrup) bearing name of the company which does not exist or fictitious which is punishable under Section 27(c) of the Drugs and Cosmetics Act. Further alleged that Section 18(a) (i) r/w 17 B(d ) of the Drugs and Cosmetics Act for having purchased, stocked and sold the spurious drug which has been substituted wholly or in part by another drug or substance which is punishable under Section 27 (c) of the said Act. The said Drug was manufactured without valid manufacturing drug licence which is punishable under Section 27(d) of the said Act.
6. Point for consideration is that whether the petitioner can be rescued from prosecution under Section 19(3)(a) of the Drugs and Cosmetics Act, http://www.judis.nic.in 6/12 CRL.O.P.No.412 of 2020 1940. It is relevant to extract the provision under Section 19(3) of the said Act as follows:
19(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
(c) that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquired it.” The provision says that the manufacturer alone is liable for prosecution and the retailer ought not to have been prosecuted under the provision under Section 19(3)(a) of the Drugs and Cosmetics Act. Admittedly the petitioner had purchased the subject drug from the licensed distributor, namely the second accused herein under valid invoice dated 09.10.2017 / 26.02.2017. Invoice, copy of the bill, purchase written bill, have been produced by the petitioner to the respondent herein. In this regard, the learned counsel for the petitioner relied upon the http://www.judis.nic.in 7/12 CRL.O.P.No.412 of 2020 judgment in the case of P.Sukumar Vs. State rep. by the Junior Drug Inspector, Salem reported in 2009 SCC Online 1644, wherein it is held as follows:
12. Therefore, it is crystal clear from the allegations and averments contained in the impugned complaint that the petitioner A6 is a licensed shop owner viz. M/s. Sukumar Medicals and he has purchased the drugs namely, Teenmox Capsules, seized from his shop, from its manufacturer/A1 and even the Firm (A-1) is also a licensed firm for manufacturing drugs.
13. At this juncture it is relevant to refer section 19(3) of the Act:
“19.Pleas—(1)…..
(2)………..
(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
(c) that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquired it.” http://www.judis.nic.in 8/12 CRL.O.P.No.412 of 2020
14. A reading of the said provision makes it crystal clear that a person shall not be liable for any contravention of section 18 of the Act if he is not the manufacturer of a Drug and Cosmetic or shall be for the distribution thereof, if he proves -
(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;
(b) that he is not having knowledge about the contravention of any provisions of the Act in respect of a particular drug or cosmetic; and
(c) that the said drug or cosmetic was properly stored and remained in the same state while such drug was in his possession.
15. As far as the case on hand is concerned, it is the admitted case of the prosecution that even as per the allegations contained in the complaint, the petitioner/A-6 has acquired the said drugs, Teenmox capsules, from the licensed manufacturer/A-1, namely, Teen Pharmaceuticals.
16. There is absolutely no allegation in the complaint to the effect that the petitioner was having any knowledge about the contravention of any provisions of the Act in respect of the drugs seized from his shop and in the complaint it is categorically stated that the petitioner/A-6 through his reply dated 28.05.2004 to the show-cause notice stated that he has purchased the said drugs from the licensed manufacturer M/s. Teen Pharmaceuticals under proper invoice and he has stored http://www.judis.nic.in 9/12 CRL.O.P.No.412 of 2020 the said drugs properly and he could not find that the said drug is substandard and spurious in nature.
The above case is squarely applicable to the case on hand, since the petitioner has acquired the said drug from the licensed distributor, namely second accused herein. The other contention of the learned Additional Public Prosecutor is that the petitioner ought to have verified the genuinity of the manufacturer and distributor and ascertain that the drug is not contravened the provision under Section 19 (3) of Drugs and Cosmetics Act. The alleged drug is not only of standard quantity, which is also spurious in content and the name of the manufacturer on the label does not exist. Therefore, on perusal of the complaint, there is no allegation to the effect that the petitioner had knowledge about the contravention of any of the provisions of the Act in respect of the subject drug seized from her shop. Apart from that, the petitioner specifically stated in her reply that she had purchased the alleged drug only from the duly licensed distributor, namely the second accused on the valid invoice dated 19.01.2017 and 26.02.2017. Thereafter the said drug was stored in her medical shop and she could not find that the said drug is sub-standard and spurious in nature. Therefore, allowing the above impugned proceedings to continue against the petitioner is nothing but clear abuse of process of court and as such the petitioner need not go for ordeal of the trial.
7. Accordingly, this Criminal Original Petition is allowed and http://www.judis.nic.in 10/12 CRL.O.P.No.412 of 2020 the proceedings in SC.No.130 of 2019 on the file of I Additional District and Sessions Judge, Thiruvallur is quashed insofar as the petitioner alone. Consequently, connected miscellaneous petitions are closed.
23.09.2020 Internet : Yes / No Index : Yes / No lok http://www.judis.nic.in 11/12 CRL.O.P.No.412 of 2020 G.K.ILANTHIRAIYAN, J.
lok To
1. The learned I Additional District and Sessions Judge, Thiruvallur
2.The Drugs Inspector, Ambattur II Range, O/o the Asst.Director of Drugs Control, Zone IV, Chennai-600 006
3. The Public Prosecutor, High Court of Madras CRL.O.P.No.412 of 2020 23.09.2020 http://www.judis.nic.in 12/12