Delhi District Court
M/S Solace India vs P. Arivazhagan D.I on 14 August, 2018
IN THE COURT OF SH. DEEPAK GARG: ADDL. SESSIONS
JUDGE 02 : NORTH WEST DISTRICT, ROHINI COURTS,
DELHI
Criminal Revision No. 3/2015
1. M/S Solace India
B407, Somdutt Chamber 5,
Bhikaji Cama Place,
New Delhi 110066
Through Mohinder Sud,Partner
2. Mohinder Sud
S/O Sh B.L. Sud
Partner of M/S Solace India
9 Bhikaji Cama Place,
New Delhi
R/O D13, Anand Niketan
New Delhi 21
3. Devinder Sud
S/O Sh B.L. Sud
Partner of M/S Solace India
5 Bhikaji Cama Place,
New Delhi
R/O D13, Anand Niketan
New Delhi 21 ... Petitioners
Versus
P. Arivazhagan D.I.
Govt. of NCT of Delhi
Karkardooma Drugs Department .... Respondent
Date of Institution in Sessions Court : 12/03/2018 Date when judgment reserved : 30/07/2018 Date when judgment pronounced : 14/08/2018 M/S Solace India and ors. Vs. P. Arivazhagan D.I. CR no. 3/15 Page 1 of 8 Order on Revision
1. Vide this order, I would dispose of this revision u/s 397 CrPC filed by the petitioners challenging the impugned order on charge and framing of charges dated 17/2/2014 and 10/8/2015 respectively passed by the court of Ld. MM, North West, Rohini Courts, Delhi in Criminal Complaint no. 4/4/97 whereby the Ld. MM was pleased to frame charges against petitioners.
2. Notice of this revision petition was issued to the respondent/State through Sh. P. Arivazhagan Drug Inspector and Sh. K.R. Chawla, Asst. Drug Controller who accepted the notice.
3. Before I come to the contention of both the sides, it would be expedient if I discuss the facts of the case in brief.
4. DI Sh. P. Arivazhagan had filed a complaint u/s 18 (a) (i) r.w.s. 27 (c) and 27 (d) of Drugs and Cosmetics Act, 1940 against 10 persons including the petitioners alleging that on 6/6/1995 complainant along with the witnesses inspected the premises of govt. medical stores depot, CHTO Workshop building, behind Qutab hotel, New Delhi on 6/6/1995.Sh. P.B.Mandal, Asst. Depot Manager of Govt. Medical Stores Depot, New Delhi was present at the time of inspection. The said depot was found stocking and exhibiting for distribution various drugs including the drug framycetin cream 1% w/w , B. No. 512, manufactured date 12/94, D/S - 11/96, Mfd. by M/S Dee M/S Solace India and ors. Vs. P. Arivazhagan D.I. CR no. 3/15 Page 2 of 8 Pharma Ltd. A3/2 Industrial Area, Sikandarabad, Distt. Buland Shehar, Uttar Pradesh and the complainant took a sample of the said drug as per procedure laid down in the Act and rules thereunder and one sealed sample portion of the above referred drug was forwarded to the govt. analyst, CDL Calcutta for test and analysis as per procedure laid down under the Act and in terms of the analysis report the said drug was found to be of sub standard quality and it was also found to be spurious u/s 17B
(d) of Drugs and Cosmetics Act as the drug in question was found to have Neomycin C in excess of the limit prescribed and hence the present complaint.
5. Vide order dated 10/8/2015 the trial court framed charge against all the petitioners u/s 18 (a) (i) /27 (c) and 18 (a)
(i)/27 (d) of the Drugs and Cosmetic Act, 1940 and posted the matter for post charge evidence. Petitioners are aggrieved with the said order and hence the present revision petition.
6. It is argued by Ld. Counsel for the petitioners that the order of framing of charge qua petitioners has been passed mechanically by the Ld. Trial court without appreciation of the evidence and the material on record. It is argued that the case of the petitioners is covered by the provisions of Section 19 (3) of the Drugs and Cosmetics Act, 1940 and hence they were entitled to be discharged. It is stated that the petitioners had obtained the drugs in question from the manufacturer I.e M/S Dee Pharma Ltd. and had sold the same to the government medical stores depot. It is further stated that the petitioners were not the manufacturer of the said drug and they were not the agent of the manufacturer for the distribution of the said drug and they M/S Solace India and ors. Vs. P. Arivazhagan D.I. CR no. 3/15 Page 3 of 8 acquired the same from duly licensed manufacturer i.e. M/S Dee Pharma Ltd. and they could not with reasonable diligence have ascertained that the drugs or cosmetics in question in any way contravened the provisions of the said act and hence they are entitled to the benefit u/s 19 (3) of the Act.
7. Per contra, Sh. K.R.Chawla, Asst. Drug Controller for the respondent/State has vehemently opposed this revision petition. He has relied upon an authority of Hon'ble Supreme Court titled as State of Orissa vs. Janmejoy Dinda Indiankanoon.org/Doc/847469 in support of his contentions stating that since the petitioners had purchased the said drug from M/S Dee Pharma Ltd., they can said to be the agent of M/S Dee Pharma Ltd. for the distribution thereof wiuthin the meaning of Section 19 (3) (i) of the Act and hence they are not entitled to the exemption thereof.
8. Before I proceed further, it would be expedient if Section 19 (3) of the Act is reproduced and it provides as under:
Section 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 M/S Solace India and ors. Vs. P. Arivazhagan D.I. CR no. 3/15 Page 4 of 8 properly stored and remained in the same state as when he acquired it.
9. It is admitted that the petitioners had purchased the drug in question from Dee Pharma Ltd. i.e. the licensed manufacturer and had sold the same to the government medical store depot. It is further admitted that petitioners were not the stockist or distributor of Dee Pharma Ltd. The mere fact that petitioners purchased the said drug from Dee Pharma Ltd. directly, would not make them the agent of Dee Pharma Ltd. for the distribution of the said drug within the meaning 19 (3) of the Act.
10. It is clear that the authority Janmejoy Dinda (Supra) relied upon by the respondent State is of no help to it. In the said case, Hon'ble High Court missed the monosyllable 'not' in Section 18A of the Act while considering the amplitude of the said provision and hence the position of law was clarified by Hon'ble Supreme Court of India in the said case holding that the said section would apply to any person other than the manufacturer of a drug or cosmetic or his agent. The said authority does not deal with the issue which is before this court in this case and hence the said authority is clearly distinguishable.
11. In view of the above, it is clear and admitted position that the petitioners acquired the drug in question from M/s Dee Pharma Ltd. which was a duly licensed manufacturer. There is nothing on record to suggest that with reasonable diligence they could have ascertained that the drug in question contravened the provisions of the act. Further it is not the contention of the M/S Solace India and ors. Vs. P. Arivazhagan D.I. CR no. 3/15 Page 5 of 8 complainant State that the drug in question was not properly stored by the petitioners or that it did not remain in the same state after it was acquired from the manufacturer.
12. In view of the above discussion, in my view, petitioners are clearly entitled to the benefit of the provision u/s 19 (3) of the Drugs and Cosmetics Act and hence the present revision petition is liable to be allowed. Hence, this revision petition is allowed. The order on charge and framing of charges dated 17/2/2014 and 10/8/2015 respectively, qua the petitioners, is set aside.
13. Copy of this order be sent to the Ld. MM for information and compliance. TCR be returned back.
14. File of this revision be consigned to Record Room.
Announced in the open court (Deepak Garg)
on dated 14th August, 2018 ASJII, NorthWest,
Rohini
M/S Solace India and ors. Vs. P. Arivazhagan D.I. CR no. 3/15 Page 6 of 8