IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14451 of 2010 MANILAL GUPTA, SON OF LATE SURAJ PRASAD GUPTA, PROPRIETOR M/S ANAND PHARMACEUTICALS, BUNIYADGANJ, P.S. MUFFASIL, MANPUR, DISTRICT GAYA. ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE DISTRICT MAGISTRARE-CUM-COLLECTOR, GAYA. 3. THE STATE DRUG CONTROLLER, DIRECTORATE OF HEALTH SERVICES, BIHAR, PATNA. 4. THE INSPECTOR OF DRUGS, GAYA SADAR SUB DIVISION, COMMISSIONERY BUILDING, GAYA. 5. THE SUB-DIVISIONAL OFFICER, GAYA. 6. THE EXECUTIVE MAGISTRATE, SADAR, GAYA. ------------------------------------------------------------------------------------------- OPPOSITE PARTIES For the petitioner :- Mr. Keshsav Prasad Srivastava, Sr. Advocate Mr. Bhubneshwar Prasad, Advocate For the State :- Mr. Jharkhandi Upadhyay, A.P.P. ******** 5 3.2.2011 The petitioner is aggrieved by the order dated 29.5.2008, passed in G.O. Case No. 2 of 2008/Trial No. 1637 of 2008 taking cognizance for offences under Sections 18(c), 18(vi) read with Section 27(b)(ii) and 27(d) of the Drugs and Cosmetics Act, 1940. On 7.1.2008, a team of inspectors visited the factory of the petitioner and sealed the main gate. After a week the team again inspected the factory to ascertain the stock etc. in the factory and has submitted a report which is contained in Annexure-8. The report discloses that the petitioner’s factory was accessible by a small gate and at the time of inspection repair work was 2 being carried out in the factory. They also found that there were certain anomalies in the structural aspect of the factory, inasmuch as it is stated that there was no provision for controlling the temperature within the factory and stocking the medicines manufactured by the petitioner’s factory. The inspection report also indicates that the petitioner has filed an application for renewal of his licence within time for the period 1.1.2007 to 31.12.2011. The licence has not been renewed on the date on which the inspection was made. Subsequently, the licence had been renewed and the petitioner has been granted an additional licence for manufacturing additional medicines as well. Mr. Keshav Prasad Srivastava, learned senior counsel appearing on behalf of the petitioner submits that in fact no offence is made out under Sections 18(c), 18(vi) read with Section 27(b)(ii) and 27(d) of the Drugs and Cosmetics Act, 1940 or for that matter under Section 27 of the Act. Section 18(c) provides that no person shall himself or through any other person 3 [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic], except under, and in in accordance with the conditions of, a licence issued for such purpose under this Chapter. Sub-clause (vi) of sub-section (a) of Section 18 also prohibits any drug or cosmetic from being manufactured or used or distributed if it is in contravention of any of the provisions of this Act. Section 27 is the penalty Section of the Drugs and Cosmetics Act. It is well settled principle that if the manufacturer has applied within time for renewal of licence, it cannot be said, that he is at fault or is working without a licence as it is the duty of the authority concerned to apply itself and dispose of the application for grant of licence within the shortest possible time. The fact that the licence was subsequently granted is an indication of the fact that the petitioner’s factory had fulfilled the conditions for grant of licence and, therefore, the allegation that the petitioner was maintaining the factory without a valid licence is not tenable in 4 view of the aforesaid facts and observations made out by this Court. There is no allegation indicating that after the factory had been sealed, the petitioner was selling or manufacturing any drugs. It may be pointed that in fact the petitioner’s factory was sealed for the purpose of carrying out inspection, which is essential for renewal of the licence. In the result, I quash the order dated 29.5.2008, passed in G.O. Case No. 2 of 2008/Trial No. 1637 of 2008, pending before the Sub-divisional Judicial Magistrate, Gaya. This application is allowed. Sanjay ( Sheema Ali Khan, J.)