Madras High Court
Sandeep Lalwani S/O. Prakash Lalwani vs Union Of India on 26 September, 2024
Crl. O. P. No.2755 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.09.2024
CORAM
THE HONOURABLE MR. JUSTICE P.DHANABAL
Crl. O.P. No.2755 of 2022
and
Crl.M.P.Nos.8574 of 2023, 1274 and 1276 of 2022
Sandeep Lalwani S/o. Prakash Lalwani ... Petitioner / Accused-1
Vs.
Union of India,
Rep. by Drug Inspector,
Office of the Deputy Drugs Controller (India),
Central Drugs Standard Control Organization,
South Zone, 2nd Floor, Sastri Bhavan Annexe,
Chennai-600 006. ... Respondent / Complainant
PRAYER: Criminal Original petition is filed under Section 482 of Criminal
Procedure Code, to call for the records in C.C. No.199 of 2021 on the file of
the Chief Judicial Magistrate, Thiruvallur and quash the charges made in the
final report filed in C.C.No.199 of 2021.
For Petitioner : Mr.S.Baskaran
For Respondent : Mr.R.Harikrishnan
Additional Solicitor General-I
1/13
https://www.mhc.tn.gov.in/judis
Crl. O. P. No.2755 of 2022
ORDER
This Criminal Original Petition has been filed to quash the proceedings in C.C. No.199 of 2021 on the file of the Chief Judicial Magistrate, Thiruvallur for the offences under sections 9(b), 10(b)(c), 18(b), 18A&B and Section.24 and under sections.13(1)(a), 27(d), 28 and Section 28A of the Drugs and Cosmetics Act.
2. According to the petitioner he is the proprietor of M/s.Nutranol Ingredients having its office at No.8/21, Ponnappa Chetty Street, Park Town, Chennai-600 003 and engaging business of import and trading of various goods viz., chemicals, food, neutraceutical, beverage and raw materials/ingredients, which is used in the manufacture of drugs etc., for conducting the above said business, his concern was holding the required license under the Drugs and Cosmetics Act in Form 20B and Form 21B issued by the State Drug Control Authorities. During the Course of their business, based on the purchase order made by one M/s.Kawarlal & Co., they had supplied 1489.52 kgs. of Trimetazidine Dihydrochloride vide their tax invoice dated 20.04.2019 for valid consideration, for a total sale 2/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 consideration of Rs.75,13,894/-. M/s.Nutranol Ingredients, along with the subject goods had also supplied other goods, which were locally procured, including certain goods imported by them to M/s.Kawarlal & Co. While so, the respondents, during the usual course of investigation and inspection carried out at the godown had seized the subject goods, for having reasons to believe that the stock of Trimetazadine Dihydrochloride was in contravention of the provisions under the Drugs and Cosmetics Act and accordingly issued Form 15 not to dispose of the said stock in their possession.
2.1. In this regard, M/s. Kawarlal & Co., had furnished all such details to the drug inspector. On the very same day, when the goods were delivered to the godown of M/s. Kawarlal & Co., the respondent herein had seized the said goods, with no adequate time left to them to verify with the details of the goods, which was locally purchased by M/s.Nutranol and supplied the same to M/s.Kawarlal & Co., It is also an admitted fact that M/s.Cipla Ltd., sold the above goods to M/s.Nishchem International Pvt. Ltd., who in turn, 3/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 had sold the goods to the petitioner M/s.Nutranol Ingredients. In turn, he sold the same to M/s.Kawarlal & Co., The respondent vide letter dated 26.04.2019 had addressed to the Director, CDTL, Kolkata, along with Form 17, Form 17A and Form 18 for testing. In turn, the CDTL, Kolkata had vide its report dated 15.05.2019. The said copy has not been furnished to the petitioner and the goods are 'quality in nature'. Already the petitioner submitted all the relevant records to the respondent. However, the respondent had issued notices dated 24.07.2019 and 17.09.2019 and the same were also properly replied by the petitioner vide reply dated 30.07.2019 and 28.09.2019. The petitioner is an innocent and had not committed any offence as alleged in the complaint. Therefore, they filed this petition to quash the proceedings in C.C. No.199 of 2021 on the file of the Chief Judicial Magistrate Court, Tiruvallur.
3. The learned Counsel for the petitioner would contend that the allegation levelled against the petitioner impugned complaint are vague, frivolous and not supported by any evidence and the previous sanction of the authority specified under Section 33G(4) of the Drugs and Cosmetics 4/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 Act was not submitted before the trial Court. The respondents had issued notices dated 10.07.2019 and 17.09.2019 under section 22(1)(cca) of the Drugs and Cosmetics Act and the petitioner also given suitable reply dated 30.07.2019 and 28.09.2019 by contesting and answering to the various proposals made in the said notice. The respondent after a period of 2 years had come forward to initiate the subject complaint without explaining the reason for such delay. The respondent also failed to follow the procedures under Sections 25(2), 25(3), 23(3) and 23(4)(ii) of Drugs and Cosmetics Act. The Drug Inspector after receipt of the report had to deliver one copy of the said report to the person, from whom the sample was taken, which has not been done in this case. The sample has to be sent, within 28 days from the receipt of the copy of the report, either to the Drug Inspector or to the Court, but the sample has not been sent at any point of time. Further, the seized goods had to be divided into 4 portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked. Further the Drug Inspector has to produce the same to the Court before which proceedings, if any, are instituted in respect of the drug. The above said 5/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 procedures have not been followed by the respondent. Therefore, the pending proceedings against the petitioner are liable to be quashed. Moreover, the said goods were locally procured by the petitioner and thereafter, the same was locally sold for a valid consideration and the complaint was filed before the trial Court after two years without any explanation. Therefore, the pending proceedings as against the petitioner is liable to be quashed.
4. The learned Additional Solicitor General appearing for the respondent would contend that the respondent have inspected the premises of the premises in the name of M/s. Kawarlal & Co., situated at No.112 G.N.T. Road, Madhavaram, Chennai-600 060 and found 1489.522 kgs Trimetazidine dihydrochloride BP/Ph Eur which was sold by M/s. Cipla Ltd., Pune to M/s.Nishchem International Pvt. Ltd., Mumbai through invoice No.10194191126 dated 19.03.2019 and the same was supplied to M/s.Nutranol Ingredients, Chennai through invoice No.3272 dated 25.03.2019. But M/s.Nutranol Ingredients, Chennai had sold 1489.522 kgs of Trimetazidine Dihydrochloride, BP/Ph.Eur to M/s. Kawarlal & Co., 6/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 Chennai. However, the total quantity of goods was only 1386.15 kg which is 103 kg lesser than the quantity supplied by M/s.Nutranol Ingredients Chennai. Hence, M/s.Kawarlal & Co., had involved in relabelling of drug in contravention of Section 17(b) read with Section 104-A and sold 103 kgs of Trimetazidine Dihydrochloride BP/Ph Eur out of 1489.522kg purchased from M/s.Nutranol Ingredients in market and not disclosed the sale invoice of 103 kg under Section 18-B of the Drugs and Cosmetics Act and given false statement of mixed up with other goods due to day to day transaction in voluminous in nature. Therefore, M/s.Nutranol Ingredients in connivance with M/s.Kawarlal & Co., involved in purchase and stocked for sale of 1386.15 kgs comprising 16 batches manufactured by M/s.Cipla Ltd., Pune in contravention of Rule 96(1)(iv) of Drugs and Cosmetics Rules requirements r/w Section 17(b), Section 18(a)(iv) & Section 104-A of Drugs and Cosmetics Act and hidden all relevant purchase sales documents and submitted forged, fake, fabricated purchase invoices. Thus, the accused have committed offences under Sections 17(b), Section 18(a)(iv) & Section 104-A and Section 18-B of Drugs and Cosmetics Act, 1940 which is punishable under Sections 27(d) and Section 28A of Drugs and Cosmetics 7/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 Act, 1940. Thereafter, they conducted investigation and as per the investigation, there are prima facie mateirals available as against the accused. Therefore, they lodged a complaint and the trial Court has also taken cognizance after satisfying that there are prima facie materials available as against the accused. Therefore, the present Criminal Original Petition is liable to be dismissed.
5. Heard both side. Perused all the materials available on record.
6. The main contention of the petitioner is that the laboratory report have not been furnished to the petitioner and there are violations of Sections 25(2)(3) of Drugs and Cosmetics Act and also there is a violation of Section 23(4) of Drugs and Cosmetics Act.
6(i) The learned Counsel for the petitioner also relied upon the judgements in
(i) Preet Remedies P. Ltd., vs. Drug Inspector in Crl.O.P. No.3143 of 2013;
8/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022
(ii) M/s. Alfred Berg & Co., vs. Drug Inspector in Crl. O.P. No.29269 of 2013;
(iii) M/s. Embiotic Laboratories vs. Drug Inspector in Crl. O.P. No.22799 of 2014;
(iv) Drug Inspector vs. Modern Drugs reported in 1982 Cri LJ 2285;
(v) M/s. Y.V.S. & Co.,and another vs. The Drugs Inspector.. in Crl. O.P. No.6127 of 2020;
(vi) Medipol Pharmaceuticals vs. PG Institute of Medical Education & Research in Civil Appeal No.2903 of 2020; and
(vii) Collector of Customs, Bombay vs. East Punjab Traders reported in 1997 (89) E.L.T. 11 (S.C.).
6(ii) On careful perusal of the said judgements, it is clear that the valuable right of violation of Section 25(3) and 25(4) of the Drugs and Cosmetics Act depriving the valuable right of the accused and it must necessitiate the quashing of the proceedings against him and the valuable right of the accused to have the sample analysed in the lab has been denied by a series of defaults committed by the prosecution by not sending the 9/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 manufacturing part of the sample as required under Section 23(4)(iii) of the Act and if any delay in taking cognizance and the valuable right of the accused for re-analysis vested under the Act appears to have been violated and having regard to the possible self life of the drug, we cannot order to continue the prosecution. In the case on hand also there are violation of Section 25(3) and 25(4) of Drugs and Consmetics Act. Further, in this case also the procedures laid down in Section 23(3) have not been followed and the samples have not been divided into four portions and one portion has not been sent to the petitioner and one part has not been sent to the concerned Court. Further, the mandatory procedures under Section 25(2) and 25(3) have not been complied.
7. Moreover, even as per the complaint filed by the complaint and as per the investigation, M/s.Cipla Ltd., Pune has sold 1489.522 kgs of Trimetazidine Dihydrochloride BP/Ph Eur to M/s.Nishchem International Pvt. Ltd., Mumbai through invoice No.10194191126 dated 19.03.2019 and the same was supplied to M/s.Nutranol Ingredients, Chennai through invoice No.3272 dated 25.03.2019. As per invoice dated 20.04.2019, M/s. 10/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 Nutranol Ingredients, Chennai, who is the petitioner herein, had sold 1489.522 kgs of Trimetazidine Dihydrochloride, BP/Ph.Eur to M/s.Kawarlal & Co., Chennai. But the seized quantity was only 1386.15 kgs which is 103 kgs lesser the quantity supplied by M/s.Nutranol Ingredients, Chennai. The said M/s.Kawarlal & Co., Chennai had involved in re-labelling of Drugs in contravention of the Act. Therefore, even according to the complaint, the petitioner M/s.Nutranol Ingredients, Chennai had sold the 1489.522kgs of Trimetazidine Dihydrochloride to M/s.Kawarlal & Co., Chennai. Therefore, there is no materials available as against this petitioner M/s.Nutranol Ingredients, Chennai / 1st accused in the complaint. Therefore, the trial Court has failed to consider all the above said aspects and taken cognizance as against the petitioner.
8. In view of the above discussion, this Court is inclined to quash the proceedings as against the petitioner. Accordingly, this Criminal Original petition is allowed and the pending proceedings in C.C.No.199 of 2021 on the file of the Chief Judicial Magistrate, Thiruvallur as against this petitioner alone is quashed. Consequently, connected miscellaneous petitions are 11/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 closed. No costs.
26.09.2024 (2/2) Index :Yes/No Internet : Yes/No Speaking order/non-speaking order mjs / gvn To
1. The Chief Judicial Magistrate, Thiruvallur
2.The Public Prosecutor, High Court of Madras.
3. Union of India, Rep. by Drug Inspector, Office of the Deputy Drugs Controller (India), Central Drugs Standard Control Organization, South Zone, 2nd Floor, Sastri Bhavan Annexe, Chennai-600 006.
P.DHANABAL, J., mjs / gvn 12/13 https://www.mhc.tn.gov.in/judis Crl. O. P. No.2755 of 2022 Crl.O.P.No.2755 of 2022 26.09.2024 (2/2) 13/13 https://www.mhc.tn.gov.in/judis