Jammu & Kashmir High Court
M/S Jain Medical Store And Anr. vs Drugs Inspector, Udhampur And Ors. on 27 July, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No. 55/2013, MP No. 70/2013
Date: 27.07.2018
M/S Jain Medical Store and anr. vs Drugs Inspector, Udhampur and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Sachin Gupta, Advocate
For respondent (s) : None.
i) Whether to be reported in
Digest/Journal : Yes.
ii) Whether approved for reporting
in Press/Media : Yes.
1. Through the instant petition, petitioners challenge the validity and
legality of the Criminal Complaint filed by respondent No.1 against them
under Section 18(a)(i) read with Section 27 (d) of the Drugs and
Cosmetics Act, 1940 (hereinafter referred to as the Act) pending before
the Court of learned Chief Judicial Magistrate Udhampur.
2. The facts of the case stated are that the petitioner No.1 claims to be a
holder of wholesale licence and Petitioner No. 2 claims to be a holder of
retail licence under the Provisions of aforesaid Act for running their
respective businesses. It is stated that on 24.08.2007, respondent No. 1
allegedly lifted the samples of Drug 'Cap. Minicycline' from the
premises of petitioner No. 2 and forwarded the sample portion of the
drug in question to the Government Analyst in Form 18 under Rule 57 of
the Drugs and Cosmetics Rules, 1945 for test and analysis under the
provisions of Section 23 of the aforesaid Act. Thereafter, the office of the
Government Analyst forwarded the certificate test and analysis dated
29.09.2007 under Form 13 and declared the sample of the drug
CRMC No. 55/2013 a/w IA No. 70/2013 Page 1 of 7
2
'Cap Minicycline' to be not of standard quality as defined in the Act with
reason that the sample fails in assay of Doxycycline.
3. Learned counsel for the petitioners states that respondent No. 1 issued a
letter dated 26.10.2007 to petitioner No, 2 and informed him that drug
lifted from his premises has been declared not of standard quality and
directed him to furnish details of person/firm from whom drug has been
purchased. Petitioner No.2 was also directed to furnish details of the
stock of drug in question. It is stated that petitioner No. 2 vide his reply
stated to respondent No. 1 that the drug in question has been supplied
and distributed by the petitioner No.1 and also submitted the
invoices/bills for the same.
4. It is further stated that respondent No.1 thereafter, issued a letter dated
28.11.2007 to petitioner No. 1 and informed him that drug supplied by
him to petitioner No. 2 is not of standard quality and directed him to
furnish details of the person/firm from whom drug in question has been
purchased. He was also directed to furnish the details of the stock of
drug. Thereafter, petitioner No. 1 vide letter dated 21.02.2007 submitted
the requisite details as desired by respondent No. 1 and furnish the details
of proforma respondent No. 3- M/s Shreya Life Sciences Pvt. Ltd, as the
supplier of the drug in question. It is stated that during investigation,
respondent No. 1 communicated with the proforma respondent Nos. 3
and 4 and petitioners were surprised and astonished to know that the
respondent no. 1 has filed a complaint against them under the provisions
of Drugs and Cosmetics Act, 1940.
5. Learned counsel for the petitioners states that the complaint filed against
the petitioners does not disclose any offence under the Act and for the
offences alleged to have been committed by the petitioners under Section
18(a) (i) read with Section 27(d) of the Act, as the drug in question was
acquired from licensed manufacturer, distributor and dealer and the
sample of the drug in question was taken from the premises of the
CRMC No. 55/2013 a/w IA No. 70/2013 Page 2 of 7
3
petitioner No. 2 in original and sealed packed and there is no allegation
in the complaint that the petitioners have tampered with the seal of the
packed drug and the drug in question while it remained in possession of
the petitioners was properly stored and remained in the same state. It is
stated that there is no allegations in the complaint that the sample was not
properly stored or it was not found in the same state as when it was
acquired and the petitioners are not liable to be prosecuted under the Act
in the present complaint. It is further stated that respondent No. 1 has
failed to promptly send the sample portion of the drug in question for re-
analysis to the Central Drug Laboratory, despite of the fact that proforma
respondent No. 4-M/S Medibios Laboratories Pvt. Ltd. applied for re-
analysis with the stipulated time and further, the failure of the
respondent No. 1 to promptly send the sample of the drug in question
for re-analysis to Central Drug laboratory has caused serious prejudice
and denial of opportunity under Section 25 of the Act and the Court
below has issued the process against the petitioners after the expiry of
the shell life of the drug in question, therefore, the impugned proceeding
against the petitioners is an abuse of the process of law and the same is
liable to be quashed.
6. Supporting his contention, learned counsel for the petitioners has placed
reliance upon the decision of Hon'ble Supreme Court in case titled,
"State of Haryana vs. Chaudhry Bhajan Lal", reported in AIR 1992 SC
604, wherein some guidelines were laid down where criminal
prosecution can be quashed at the threshold, he has also referred 2015(1)
Drugs Cases (DC) 306 case titled Radhey Sham v State of Punjab,
wherein it is held that a licensee holding valid license of whole sales
chemist and Druggist is entitled to protection u/s 19(3) of Act,
7. Objections have been filed by respondent No. 1. The stand taken by
respondent No. 1 is that the offences alleged to have been committed by
CRMC No. 55/2013 a/w IA No. 70/2013 Page 3 of 7
4
the petitioners and proforma-respondents in the complaint under
question are very much serious in nature and are against the Public
Health, because the Drug manufactured by the proforma-respondent No.
4 which was being sold by the petitioners was declared to be "Not of
Standard Quality" as defined under the Act by the report of Government
Analyst. It is further contended that during investigation, it was found
that the Drug in question was supplied to the petitioner No.2 by the
petitioner No. 1 and to petitioner No.1 by the proforma-respondent No. 3
and manufactured by the proforma- respondent No. 4 and finally, after
completing the investigation and necessary correspondence required
under the Act and receipt of sanction from the office of Controller,
Drugs and Food Control, Jammu a complaint was filed before the
learned Trial Court against the petitioners as well as proforma-
respondent Nos. 3 and 4, as all the accused were found guilty of
manufacturing for selling and distributing the drug in question which
was declared not of standard quality by the Government Analyst,
Jammu. It is further contended that the Trial Court has rightly taken
cognizance against the petitioners and other proforma respondents and as
per the provisions of Section 34 of the Act, the petitioners are liable to
be prosecuted in case of violation of the provisions of Drugs and
Cosmetic, Act 1940.
8. I have heard counsel for petitioner at length. The only question arises in
this petition is that, as to whether petitioner No.1, who claims to be a
holder of wholesale licence and Petitioner No. 2 who claims to be a holder
of retail licence of drugs under the Provisions of aforesaid Act, are
entitled to be arrayed as accused in a complaint under section 18(a)(1) of
Act launched by Drug inspector before CJM Udhampur.
9. In order to decide the controversy, relevant Sections of the Act reads as
under:-
CRMC No. 55/2013 a/w IA No. 70/2013 Page 4 of 7
5
"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;
----------------------------------------------------------------------
19. Pleas. -------------------------------------------------------------- (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, distributer 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.
27. Penalty for manufacture, sale etc., of drugs in contravention of this Chapter:- Whosoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes:-
--------------------------------------------------------------------------------
(d) any drug, other than a drug referred to in clause (a) or clause
(b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year."
10. It is seen from section 19(3) of the Act that a person, not being a 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 that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof. Only if the petitioners are able to establish CRMC No. 55/2013 a/w IA No. 70/2013 Page 5 of 7 6 that his case comes within the ambit of section 19(3) of the Act, then alone they can succeed. Simply because the petitioners state that they have purchased from a licensed manufacturer, they cannot be automatically relieved from the proceedings of the cases. If at all the petitioners, who are licence holder of retail and whole sale of drugs in question and of the view that the drugs have not contravened the provisions under the Act, it is also open to them to establish the same during the course of trial.
11. Initially wholesaler and retailer are liable under Section 18(a)(i) r/w 27 of the Drugs and Cosmetics Act and the defence available to them under Section 19(3) cannot be taken at initial stage. It has to be established by cogent means during trial. Whether or not the petitioners are entitled to take the plea under Section 19(3), is a matter to be decided during the trial and this Court cannot exercise its power under Section 561-A Cr.P.C. and cannot go into the same to ascertain his reasonable diligence as to whether the drugs in question were properly stored or purchased from the duly licensed manufacturer. If during trial, it is established that petitioners have purchased the drugs from licensed manufacturer or distributor, only then presumption in terms of section 19(3) of the Act shall be taken note by the Court and benefit would be given to petitioners.
12. The learned counsel for the petitioners has also raised various other grounds touching the facts of the case, on which I do not intend to give my opinion on such facts, since it may have a bearing on the trial. It is always open to the petitioners to raise all those factual aspects during the course of trial and thereafter. It is made clear that I have not expressed any view with regard to the merits of the case and that the trial Court shall independently examine the evidence placed before it for the purpose of coming to a just conclusion. I have gone through the law cited CRMC No. 55/2013 a/w IA No. 70/2013 Page 6 of 7 7 by learned counsel for petitioners. I am not in agreement with the law cited.
13. In view of the above reasons, the criminal petition stands dismissed.
Consequently, connected miscellaneous petitions are closed.
(Sanjay Kumar Gupta) Judge Jammu 27.07.2018 Ram Krishan CRMC No. 55/2013 a/w IA No. 70/2013 Page 7 of 7