IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 Crl.MC.No. 4634 of 2010() ---------------------- CC.478/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM .................. PETITIONERS / ACCUSED 1 & 2 : ----------------------------------------------- 1. M/S.WILSON TAPES (P) LTD., PLOT NO.11/12, GIDC ESTATE, GOZARIA, MEHSANA DISTRICT, GUJARAT-382 825, REPRESENTED BY ITS DIRECTOR, PATEL YASHWANTHBHAI NATHALAL, PLOT NO.563/A,SECTOR NO.22, GANDHI NAGAR, GUJARAT-382 022. 2. PATEL YASHWANTHBHAI NATHALAL, DIRECTOR, M/S.WILSON TAPES (P) LTD., RESIDING AT PLOT NO.563/A, SECTOR NO.22, GANDHI NAGAR, GUJARAT-382 022. BY ADVS. SRI.M.RAMESH CHANDER SMT. K.A.SANJEETHA SRI.ANEESH JOSEPH SMT. ANITHA C.J. RESPONDENTS / COMPLAINANT AND STATE : ------------------------------------------------------------------- 1. THE DRUGS INSPECTOR, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, TRICHUR, PIN – 682 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. R1 & R2 BY PUBLIC PROSECUTOR SRI. K.J. MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/05/2011, ALONG WITH CRMC NO. 4635/2010 & CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P.JOSEPH, J. ==================================== Crl. M.C. Nos.4634, 4635, 4664, 4665 and 4666 of 2010 ==================================== Dated this the 25th day of May, 2011 O R D E R These cases are filed by accused 1 and 2 in C.C. Nos.478 of 2009, 477 of 2009 283 of 2009, 479 of 2009 and 480 of 2009, respectively of the court of learned Judicial First Class Magistrate, Kunnamkulam for offence punishable under Section 18(1)(i) read with Section 27 of the Drugs and Cosmetics Act (for short, “the Act”). Complaints were launched against petitioners by the Drugs Inspector alleging that different batches of Plaster of Paris manufactured by petitioners and supplied to the Medical College Hospital, Thrissur were not of standard quality and thus petitioners committed offences as alleged. In respect of different batches of Plaster of Paris (allegedly) seized by the first respondent-Drugs Inspector and subjected to analysis by the Analyst, separate complaints were filed against petitioners. Petitioners request this Court to quash proceedings on various grounds. At the time of hearing it is pointed out by learned counsel that there is no compliance with Sec.25(4) of the Act in that sample part was not CRL.M.C. No.4634 of 2011 & connected cases -: 2 :- sent to the Central Laboratory, Calcutta for analysis. It is also contended that there is no averment in the petition that the batches of Plaster of Paris (allegedly) seized by the Drugs Inspector were properly stored and remained in the same state as the Medical College Hospital authorities acquired it. According to the learned counsel the very fact that portions of batches of Plaster of Paris were already used by the Medical College Authorities would indicate that the same was in proper condition. 2. First respondent has filed a statement in all the cases except Crl.M.C. No.4635 denying the contentions raised by petitioners. I have heard learned counsel for petitioner and learned Public Prosecutor. 3. So far as the contention that Sec.25(4) of the Act is not complied is concerned it is seen that in all the cases except Crl. M.C. No.4635 of 2010 samples of Plaster of Paris seized were sent to the Central Laboratory at Calcutta and that Laboratory reported that the samples part did not conform to the standard prescribed. Hence the contention raised by petitioners in these cases except Crl. M.C. No.4635 of 2010 based on Sec.25(4) of the Act cannot prima facie be accepted. CRL.M.C. No.4634 of 2011 & connected cases -: 3 :- 4. So far as the said contention concerning Crl. M.C. No.4635 of 2010 is concerned it is pointed out by learned counsel for petitioners that no document is produced to show that the sample part was sent to the Central Laboratory. I make it clear that it is open to the petitioners to urge that contention in the trial court (in C.C. No.477 of 2009). 5. Other contention is that complaint in these cases do not mention whether batches of Plaster of Paris were properly stored in the same condition as acquired by the Hospital authorities. Learned counsel relied on Sec.19(3) of the Act which stated about the exemptions. According to the learned counsel, if first respondent thought of exonerating the seller of Plaster of Paris in question he should have averred in the petitions that Plaster of Paris was properly stored and remained in the same condition as the seller acquired it from the manufacturer. 6. I am afraid that contention cannot be entertained in these proceedings. Section 19(3) of the Act says that the defence mentioned therein is available to a person not being manufacturer of the drug, cosmetic or his agent for the distribution. Herein prosecution is launched against petitioners who are the CRL.M.C. No.4634 of 2011 & connected cases -: 4 :- manufactures of Plaster of Paris in question. Therefore the contention raised based on Sec.19(3) of the Act cannot be availed by petitioners. 7. Learned counsel for petitioners submitted that personal appearance of petitioners in the course of trial may be dispensed with. That is a matter which petitioners could urge in absentia before the learned Magistrate and if any request in that regard is made, learned Magistrate shall consider the same and pass appropriate orders. Resultantly, these Criminal Miscellaneous Cases are dismissed without prejudice to the right of petitioners to take up a contention in C.C. No.477 of 2009 that sample part was not sent to the Central Laboratory, Calcutta as required under Sec.25(4) of the Act. Other contentions available to the petitioners also will remain open. THOMAS P. JOSEPH, JUDGE. vsv