IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 Crl.MC.No. 880 of 2006 --------------------------- CC.1279/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... PETITIONER(S): ACCUSED NO.3: ------------------------------------ M.O. CHERIYAN, S/O. LATE CHERIYAN OOMMEN MUKALUVILAYIL HOUSE, ADOOR P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.B.PRAJITH RESPONDENT(S): COMPLAINANT: ------------------------------------ 1. THE DRUGS INSPECTOR, OFFICE OF THE DRUGS INSPECTOR, ALAPPUZHA. 2. STATE - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.T.K.MOHANAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 880 of 2006-D - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of October,2009. ORDER Petitioner is being tried before the Judicial Magistrate of First Class, Mavelikkara in CC.No.1279/2005 for the offences punishable under Section 27(d) and 18(a)(vi) of the Drugs and Cosmetics Act read with condition No.3 of licence in Form 20(B) and 21B issued as per rule 61(1) and 61(2) of the Rules. 2. Petitioner has been arraigned as accused No.3 and the specific case against him is that he had supplied allopathic medicines to accused Nos.1 and 2 who did not possess requisite licence either to sell, stock or exhibit allopathic medicines in their hospital being exclusively run for patients seeking treatment under the homoeopathic system of medicine. The complainant further alleged that accused Nos.1 and 2 are registered practitioners in homeopathic system of medicine. I do not propose to refer to or deal with the various averments in the complaint at this stage in view of the order that I propose to pass. 3. It is vehemently contended by the learned counsel that the petitioner had sold the medicines under the 5 invoices referred to in the complaint to one Dr.Vijayan attached to Star Hospital. 4. But there is nothing on record to show that Dr.Vijayan is in any way connected with the Star Hospital. Anyhow, I refrain from making any observation on this aspect of the case because this is a question to be decided on the basis of evidence. Crl.MC.880/06. 2 5. The other contention raised by the learned counsel is that being an authorised distributor/seller of allopathic medicines, the petitioner cannot refuse to sell medicines if a doctor or any other customer comes to him to purchase medicines. Yet again I refrain from making any comment or observation on this aspect. The above contentions raised by the petitioner fall in the realm of questions of fact and they can be dealt with in the light of the materials to be made available in the case in the course of trial. In my view, petitioner has to raise all these contentions before the court below at the appropriate stage. I make it clear that it will be open to the petitioner to plead for discharge at the appropriate stage, if he is so advised. If such a plea is made by the petitioner, the learned Magistrate shall consider the same and pass appropriate orders on such plea, in accordance with law. With that liberty reserved in favour of the petitioner, the Crl.M.C is disposed of. Personal appearance of the petitioner shall not be insisted upon by the learned Magistrate on all days except on days when his presence in the court is absolutely essential. A.K. Basheer Judge. an.