Madras High Court
Mr.Sandeep Lalwani vs Union Of India on 26 September, 2024
Crl.O.P.No.3352 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.3352 of 2022
and
Crl.M.P.No.8611 of 2023
Mr.Sandeep Lalwani,
S/o.Mr.Prakash Lalwani,
Proprietor of M/s.Nutranol Ingredients,
No.8/21, Ponnappa Chetty Street,
Park Town, Chennai-600 003. ... Petitioner
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
PRAYER: Criminal Original petition is filed under Section 482 of Criminal
Procedure Code, to call for the records in C.C.No.198 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.198 of 2021.
1/13
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.3352 of 2022
For Petitioner : Mr.S.Baskaran
For Respondent : Mr.R.Harikrishnan
ORDER
This Criminal Original Petition has been filed to quash the proceedings in C.C.No.198 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 2/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 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 126 Kgs. of Verapamil vide their tax invoice dated 20.04.2019 for valid consideration, for a total sale consideration of Rs.44,852/-, the sale consideration of which was paid by the local buyer, M/s.Kawarlal & Co., favouring the petitioner, M/s.Nutranol Ingredients, and the same have been properly recorded in the books of accounts of the petitioner. The 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/examination and inspection carried out at the godown premises of the said local purchaser and had seized the subject goods, for having reasons to believe that the stock of Verpamil, which the petitioner had locally procured and then supplied to them 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.
3/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 2.1. In this regard, the local purchaser of the goods, had furnished all such details, information and documents as regard the purchase of the impugned goods, including the payment details made to the local supplier and other documents to the drug inspector. 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. The CDTL, Kolkata had vide its report dated 24.05.2019 had confirmed to the fact that the goods are of ''Quality in Nature''. The petitioner also submitted all the details, information and documents as regards the purchase of the impugned goods, including the payment details made to the local supplier and other documents to the respondent. The respondent had also issued notice dated 25.07.2019 and 17.09.2019 and the same was also suitably replied by the petitioner. The petitioner represented that the subject goods have been locally purchased by them for a valid consideration, inclusive of the payment of appropriate CGST and SGST tax amount and it is the very same goods, which have been further sold to M/s.Kawarlal & Co. the local purchaser, for a valid consideration. The petitioner is an innocent person and he has not 4/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 committed any offence as alleged in the complaint. Therefore, the pending proceedings in C.C.No.198 of 2021 on the file of the Chief Judicial Magistrate, Thiruvallur is liable to be quashed.
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 documents. There is no proof of obtaining previous sanction of the authority specified under Section 33G(4) of the Drugs and Cosmetics Act. The respondents had issued notices dated 25.07.2019 and 17.09.2019 under section 22(1)(cca) of the Drugs and Cosmetics Act, in which, the petitioner also given suitable reply 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. As per Section 25(2) of Drugs and Cosmetics Act it mandates that the Drug Inspector on 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. As per Section 25(3) of Drugs and Cosmetics Act the person from whom the sample have been taken to give his 5/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 objections/counter, either to the drug inspector or to the court before which any proceedings in respect of the sample are pending, within 28 days of the receipt of the copy of the report, the said provision is also violated. As per Section 23(3) of the Drugs and Cosmetics Act, the sample of the seized goods had to be divided in 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, which exercise has not been carried out in this case. As per section 23(4)(ii) of the Drugs and Cosmetics Act the second portion of the sample, the drug inspector has to produce the same to the Court before which proceedings, if any, are instituted in respect of the drug; which was also not done in this case. Even if it is taken on its face value and accepted in its entirety do not constitute prima facie or make out a case against the petitioner. Therefore, the pending proceedings as against the petitioner is liable to be quashed.
4. The learned Counsel for the respondent would contend that the complainant along with Mr.Venugopal Racha, Drugs Inspector, CDSCO-HQ and Mrs.R.Kalaiselvi, Senior Drugs Inspector, Chennai, Zone IV, 6/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 TamilNadu, inspected the premises of M/s. Kawarlal & Co., situated at No.112 G.N.T. Road, Madhavaram, Chennai-600 060. On search of the premises, 7 container drums containing 1267 Kg. Verapamil HCL labelled as manufactured by M/s.Zhejiang Medicines & Health Products, China was found stocked at No.112, G.N.T.Road, Madhavaram, Chennai. The labels in all 7 container drums did not show the import license number and name and address of importer and this is a contravention of the requirement of Rule 96 (1)(xii) of Drugs and Cosmetics Rules, 1945.
4.1. Thereafter, on 25.04.2019, the complainant inspected M/s.Kawarlal and Co., at that time the said company failed to submit required documents, therefore 126.7kg. Verapamil HCL and other drugs stocked for sale in contravention of Section 18 of Drugs and Cosmetics Act was seized in Form 16 by the complainant. On 25.04.2019, the complainant drawn the legal sample in Form 17 during seizer under Section 23 of the Drugs and Cosmetics Act and obtained acknowledgement from the proprietor of M/s.Kawarlal and co., and forwarded the sample in Form 18 dated 25.04.2019 to the Director, Central Drugs Laboratory, Kolkata for test. 7/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 4.2. As per the test report, the sample conforms to Indian Pharmacopeia with respect to the identification and Assay of Verapamil Hydrochloride only. The proprietor of M/s.Kawarlal and co., stated that the said Verapamil was purchased from M/s.Nutronal Ingredients through purchase order dated 20.04.2019. The Sandeep Lalwani, the proprietor of M/s.Nutranol Ingredients has submitted purchase and sale bill of Verapamil HCP and they also stated that they purchased from M/s.Yashdeep Pharma & Nutraceuticals, Bhiwandi, Maharastra dated 12.04.2019 and the team found that M/s. M/s.Yashdeep Pharma & Nutraceuticals, Bhiwandi, Maharastra were purchased the Verapamill from the M/s.Nutranol Ingredients, Chennai and based on the purchase note submitted by M/s.Nutranon Ingredients dated 09.05.2019, it is revealed that the Verpamill HCL was purchased from M/s.Global Pharma Chem and the same was also inspected and there is no name and sign board of M/s.Global Pharma Chem and also the said company had surrendered the licence after 19 days of sale of the indulged drug to M/s.Nutranol Ingredients. Thereafter, the request was made to submit all the documents in respect of purchase of the above said drugs. But the proprietor of the Nutranol Ingredients replied that they lost all the 8/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 documents related to purchase and sale pertaining to the period from 01.04.2018 to 31.03.2019. The seized 7 containers of Verapamil HCL comprising 126.7Kgs. Imported from the unregistered source of Chinese manufacturer M/s.Zhejiang Medicines & Health Products, China by M/s.Nutranol Ingredients without holding valid import license as required under Drugs and Cosmetics Act and they illegally stocked and imported the said drugs without having any valid license. Therefore, the complaint was filed and there are no any procedures violation as alleged by the petitioner. 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 violation of Rule 25(2)(3) of Drugs and Consmetics Act and also there is a violation of Section 23(4) of Drugs and Consmetics Act.
6(i) The learned Counsel for the petitioner also relied upon the judgements in 9/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022
(i) Preet Remedies P. Ltd., vs. Drug Inspector in Crl.O.P. No.3143 of 2013;
(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 10/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 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 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. 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.198 of 2021 on the file of the Chief Judicial Magistrate, Thiruvallur as against the petitioner 11/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 alone is quashed. Consequently, connected miscellaneous petition is closed. No costs.
26.09.2024 (1/2) Index :Yes/No Internet : Yes/No Speaking order/non-speaking order 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., gvn 12/13 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3352 of 2022 Crl.O.P.No.3352 of 2022 26.09.2024 (1/2) 13/13 https://www.mhc.tn.gov.in/judis