IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Crl.MC.No. 2271 of 2004(D) -------------------------- CC.107/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... PETITIONER(S): 2ND ACCUSED ----------------------------------------------- A.N.MOHANAKURUP, S/O.M.K.NARAYANAPILLAI, "POONAM", MANNATH LANE, THRISSUR - 680 001. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.SOJAN MICHEAL RESPONDENT(S): STATE/COMPLAINANT ----------------------------------------------------------- 1. STATE OF KERALA, REP: BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DRUG INSPECTOR, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, THRISSUR. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2271 of 2004-D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of July, 2008. ORDER Petitioner who has been arraigned as accused No.2 in C.C.No.107/2004 on the file of the Judicial Magistrate of First Class, Vadakkancherry has filed this petition under section 482 of the Code of Criminal Procedure to quash the above proceedings pending against him. 2. The above complaint, a copy of which is on record as Annexure I, has been filed by the Drugs Inspector, Thrissur. Petitioner is stated to be a wholesale dealer of Allopathic medicines, having his registered place of business at Thrissur. The gravamen of the charge against the petitioner, as revealed from Annexure I complaint, appears to be that he had supplied certain allopathic medicines to a fictitious establishment, namely P.R.Clinic allegedly run by one Dr.Narayanan, to enable accused No.1 who is an Ayurvedic Physician to dispense those medicines at his clinic at Vallathol Nagar. The prosecution further alleged that the enquiry conducted by the officials in the office of the Assistant Drugs Controller had revealed that PR Clinic is a fictitious establishment and petitioner had sold the medicine to accused No.1 in the said fictitious name in violation of the provisions contained in Sections 18 and 27 of the Drugs and Cosmetics Act 1940. I do not propose to refer to or deal with the various other averments and allegations in Annexure I complaint in view of the order that I propose to pass in this petition. 3. Sri. M.K.Damodaran, learned senior counsel appearing for the petitioner submits that the prosecution as launched by the complainant, even assuming that the allegations contained in Annexure I complaint are Crl.MC.2271/04 2 correct, is totally vitiated and unsustainable for reasons more than one. It is pointed out by the learned senior counsel that the allegations against the petitioner in Annexure I complaint are totally vague and hazy. Those allegations do not disclose any case , much less the charges levelled against him warranting his trial. It is further pointed out that Annexure II mahazar will clearly show that no incriminating material had been recovered either from the premises of the petitioner or from anywhere else. Annexure III (1) and Annexure III (2) invoice will only show that certain orders were placed by Dr.Narayanan for supply of medicines from the establishment of the petitioner. In fact those documents bear the seal and signature of Dr.Narayanan. They will prima facie show that medicines were supplied by the petitioner on the basis of a valid order placed by a licensed medical practitioner. It is thus contended by the learned senior counsel that even on the basis of the documents produced along with the complaint it cannot be said that any case had been made out against the petitioner. 4. Yet another contention raised by the learned senior counsel is that in the absence of a notification as contemplated under Section 18 of the Act, the entire prosecution will be vitiated. He points out that there is nothing on record to show that a notification as contemplated under the above section had been issued in the State of Kerala. 5. I have carefully considered the above contentions raised by the learned senior counsel. But I am afraid it may not be proper for this Court at this stage, and that too by invoking the inherent power of this Court under Section 482 of the Code, to throttle the prosecution. It may be true that the case of the complainant is that the petitioner had supplied certain allopathic medicines to accused No.1 using the name of a fictitious establishment. But the prosecution has to be given an opportunity to adduce Crl.MC.2271/04 3 evidence in support of the allegations. Undoubtedly petitioner will also get an opportunity to substantiate his case that P.R.Clinic is not a fictitious establishment and that Dr.Narayanan had in fact placed orders for purchase of such medicines. As regards the other contention about the absence of notification also, I am of the view that the prosecution has to be given an opportunity to establish its case. 6. Having regard to the entire facts and circumstances I am satisfied that this is not a fit case to invoke the power under Section 482 of the Code and quash the proceedings. Petitioner has to raise all his contentions before the trial court at the appropriate stage. However in the peculiar facts and circumstances of the case, the learned Magistrate shall exempt the petitioner from personal appearance, if such a motion is made on his behalf. But he shall appear as and when his presence is unavoidable. Crl.M.C is closed in the above terms. A.K. Basheer Judge. an.