IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :18-8-2010 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.7985 of 2010 & M.P.Nos.1 to 3 of 2010 W.P.No.7986 of 2010 & M.P.Nos.1 and 2 of 2010 W.P.No.7985 of 2010 V. Meenakshisundaram ... Petitioner Vs. 1. The Inspector of Police, P-6, Kodungaiyur Police Station, Chennai – 600 118. 2. The Drug Inspector, Perambur Range, Region No.2, Drug Control Department, DMS Campus, Teynampet, Chennai – 600 106. ... Respondents Amended Prayer : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ of mandamus directing the respondents 1 to 3 to remove the seal placed by the respondents to the business premises together with rescinding of the order issued by freezing the back accounts relating to the business of, (1) M/s.Vasantha Enterprises, No.11/14, Ground Floor, Jakammal Kovil Street, Postal Audit Colony, Chinmaya Nagar, Chennai – 92 (2) M/s.Vasanthameena Enterprises, No.16-D, 3rd Floor, Postal Audit Colony, Chinmaya Nagar, Chennai – 92 https://hcservices.ecourts.gov.in/hcservices/ (3) Meena Health Care Pvt Ltd., No.16 First Street, No.16, First Street, Postal Audit Colony, Chinmaya Nagar, Chennai – 92. (Prayer amended as per order of the Court dated 28.4.2010 in M.P.No.4 of 2010) W.P.No.7986 of 2010 N.M.Sathammai ... Petitioner Vs. 1. The Inspector of Police, P-6 Kodungaiyur Police Station, Chennai – 600 118. 2. The Drug Inspector, Perambur Range, Region No.2, Drug Control Department, DMS Campus, Teynampet, Chennai – 600 106. ... Respondents Prayer: This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of mandamus forbearing the first respondent from proceeding any further with respect to the complaint lodged by the second respondent on 16.3.2010 since the first respondent lacks jurisdiction and source of power in terms of the provisions of the Drugs and Cosmetics Act, 1940. For Petitioner : Mr.N.Jothi for Mr.M.C.Govindan For Respondents : Mr.P.S.Raman, Advocate General assisted by Mr.Kumaresan, Public Prosecutor; Ms.Pushpa Menon & Mr.R.Murali, Government Advocates https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER By consent of both sides, the main writ petitions are taken up for final disposal. 2. The petitioner in W.P.No.7986 of 2010 is the wife of the petitioner in W.P.No.7986 of 2010. The Inspector of Police, Kodungaiyur Police Station registered a criminal case in Cr.No.132 of 2010 against the petitioner in W.P.No.7985 of 2010 on 16.3.2010 for the offences under Sections 420, 468 and 465 IPC, etc., based on a complaint given by the Inspector of Drugs dated 16.3.2010, and the above said business premises and godowns were sealed and also freezed the bank accounts of the Concerns, namely, M/s.Vasantha Enterprises, No.11/14, Ground Floor, Jakkammal Kovil Street, Postal Audit Colony, Chinmaya Nagar, Chennai-600 092; M/s.Vasanthameena Enterprises, No.16D, 3rd Floor, Postal Audit Colony, Chinmaya Nagar, Chennai-92; and M/s.Meena Health Care Pvt. Ltd., No.16 First Street, Postal Audit Colony, Chinmaya Nagar, Chennai-92. According to the petitioners the said concerns are doing wholesale business of drugs after obtaining licences under the Drugs and Cosmetics Act, 1940. 3. Taking note of the sealing of the premises and freezing of the bank accounts, and the submissions made by the learned counsel for the petitioners, as well as the employment of 470 persons from 16.3.2010, and after hearing the arguments of the learned Advocate General, an interim order was passed by this Court on 30.4.2010 relying on the judgment of the Supreme Court reported in AIR 2006 SC 6 (Jayendra Saraswathy Swamigal v. State of Tamil Nadu). It was ordered that the sealed premises shall be opened by the respondents in the presence of the representatives of the petitioners and list of inventories available in the said premises shall be taken and the list may be submitted before this Court on the next hearing date on 6.5.2010. The said date was further extended by this Court. The petitioners were also permitted to operate the bank O.D.A/c Nos.04642080000030 and 046420800000115 in Kotak Mahindra Bank, Kodambakkam and Parrys Branches and Current A/c No.67732 in Chinmaya Nagar Branch. The respondents implemented the said order and filed a list of inventories before this Court on 10.6.2010. 4. The learned counsel appearing for the petitioners elaborately argued about the lack of power of the respondents in sealing the premises and freezing the bank accounts by citing various provisions of the Criminal Procedure Code, Drugs and Cosmetics Act, 1940 as well as the rules framed thereunder, Criminal Law (Amendment) Ordinance, 1944, and several decisions of the Honourable Supreme Court, this Court and various other High Courts, in support of his contentions and prayed for allowing the writ petitions, seeking removal of the seals from the premises and to lift the freezing of all bank accounts of the above said business concerns. https://hcservices.ecourts.gov.in/hcservices/ 5. In reply to the above submissions, on 16.8.2010, the learned Advocate General appeared along with the learned Public Prosecutor and submitted that one of the accused in the same criminal complaint, namely, Cr.No.132 of 2010 viz., Vasantha Medical Agency and M/s.Sri Sabari Pharma, Chennai, approached the learned II Metropolitan Magistrate, Egmore, Chennai, under Section 451 Cr.P.C., and prayed for return of the keys of the premises so as to enable them to take huge quantities of drugs from there and sell them. The said application was dismissed, against which Crl.R.C.No.722 of 2010 was filed by one M.Santha, who is the wife of one Manickam. In the said criminal revision case, this Court, noticing the special provisions contained in Rule 66A of the Drugs and Cosmetics Rules, 1945, allowed the criminal revision case by giving direction to the respondents Police. The said order reads as follows: "6. It is not specifically pointed out by the learned Additional Public Prosecutor that the medicines which are now stocked in the two premises viz., at No.20, New Manickam Street, Purasawalkam, Chennai, are expired or spurious drugs. If those drugs are not expired and spurious drugs and if those drugs are not allowed to be used and those drugs are not used for long time, the drugs would be spoiled. In these circumstances, this Court feels that those drugs could be allowed to be taken by the petitioner, who is not an accused in this case. 7. In view of the above, the respondent police is directed to fix a date for opening of the premises and on that day, the respondent police is directed to open the premises thereby enabling the petitioner to take possession of the drugs which are not expired and spurious. At the same time, the keys of the premises and computer and printer are not to be returned to the petitioner at this stage. However, it is open to the petitioner to dispose of those drugs as per the provisions under Section 66-A of the Drugs and Cosmetics Rules. It is made clear that only in the presence of a Drug Inspector, the drugs should be taken in possession by the petitioner." 6. The learned Advocate General fairly submitted that in view of the above order passed by this Court in Cr.R.C.No.722 of 2010 on 3.8.2010 in a similar matter. The only difference is the Drug Licence in that case was cancelled and having regard to the fact that the drug licence to the petitioners herein are not cancelled as on date, even though show cause notices were issued and no final order was passed these writ petition may be disposed of on the following terms. https://hcservices.ecourts.gov.in/hcservices/ "The sealed premises can be ordered to be opened by the respondents in the presence of the authorised representatives of the petitioners and all unexpired drugs, which are not treated as spurious medicines, can be released and permitted to be identified in the presence of the Drugs Inspector and the objectionable medicines may be kept separately or may be permitted to be taken by the Police in their custody. The petitioners can also carry on their business so long as their Drug licences are not cancelled and the bank accounts freezed, which are not in operation as on today, can also be released." The said submission made by the learned Advocate General is recorded. The learned Counsel for the petitioners is also agreeable for the above submissions made by the learned Advocate General. 7. In view of the above submissions of the learned Advocate General and the learned Counsel for the petitioners, these writ petitions are disposed of with the following directions: (i) The respondents are directed to remove the seals put up by them in the said three business premises, in the presence of the representatives of the petitioners and permit the petitioners to sell the drugs/medicines, for which the expiry period is not over and which are not identified as spurious drugs. (ii) The petitioners are permitted to sell the unobjectionable drugs after getting clearance from the Drugs Inspector concerned. (iii) The objectionable drugs can be kept separately either in the premises of the petitioners in a separate place under lock and key or the same can be taken away by the respondents and keep the same in their safe custody. (iv) If the petitioners make a request to return the time expired drugs, which are to be identified and found as not spurious, after collecting and retaining samples, the remaining quantity is ordered to be returned to the petitioners so that the petitioners can return the same to the manufacturers and realise the value of the time expired drugs. (v) It is made clear that in view of the disposal of these writ petitions on the above terms, none of the legal submissions made by the learned counsel for the petitioner is decided in any manner in this order and the merits of the contentions raised herein are left open to be decided in any proceedings, which may arise in future or in the criminal case pending before the criminal court and the same will have to be decided in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ (vi) The Bank accounts which are freezed on 16.3.2010 are directed to be released by the respondents forthwith. (vii)There will be no order as to costs. (viii) Connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vr To 1. The Inspector of Police, P-6, Kodungaiyur Police Station,Chennai – 600 118. 2. The Drug Inspector, Perambur Range, Region No.2, Drug Control Department, DMS Campus, Teynampet, Chennai – 600 106. 1 cc To The Government Pleader, SR.60921 2 cc To Mr.M.C.Govindan, Advocate, SR.60836 W.P.Nos.7985 & 7986/2010 rs(Co) pmk.18.8.2010 https://hcservices.ecourts.gov.in/hcservices/