IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.No.30365 of 2007 and M.P.Nos.1 and 2 of 2007 1.M/s.Shifa Hospital 2.Dr.V.Parvez Ahmed 3.Dr.R.Mohamed Ibrahim ... Petitioners Versus State represented by The Drug Inspector, Thiruvottiyur Range, Thiruvallur Range, 201, JN Road, Thiruvallur. ... Respondent Criminal Original Petition filed under section 482 of Criminal Procedure Code to call for the records and quash the complaint of the respondents in C.C.No.121 of 2007 pending on the file of Chief Judicial Magistrate, Thiruvallur. For Petitioners : Dr.G.Krishnamurthy for Mr.A.Thirumaran For Respondent : Mr.N.Kumanan Government Advocate (Crl.Side) O R D E R This petition seeks to quash proceedings in C.C.No.121 of 2007 on the file of the Chief Judicial Magistrate, Thiruvallur. 2.In such case, the petitioners herein are accused of offences under Sections 18(c) and 18-A of the Drugs and Cosmetics Act, 1940 (hereinafter referred as Act) punishable under Section 27(b)(ii) and 28 of the Act. 3.The complaint came to be filed against the petitioners herein, the 1st accused, an hospital is represented by one of its partners and the 2nd and 3rd accused are the partners of the 1st accused hospital. The drugs inspector had inspected the premise of the 1st accused on https://hcservices.ecourts.gov.in/hcservices/ 10.10.2006 on the instructions of the Director of Drugs Control, Tamil Nadu and in the presence of the 2nd accused. The 1st accused hospital was found to be holding stock therein for sale therein of Allopathic drugs without holding the drug license in respect thereof. The entire stock held by the 1st accused hospital was seized in the presence of independent witnesses. The original documents seized were taken return of by the 2nd accused after furnishing certified copies thereof. 4.The seized drugs were produced before the Honourable District Munsif Cum Judicial Magistrate Court, Ambattur for safe custody on 11.10.2006 and in keeping with Section 23(5)(b) of the Act. Explanation was called for, from the accused under a memo dated 30.10.2006, for contravention of Section 18(c) of the Act of having purchased stocks for sale and sold or distributed the drugs without holding drug license and the accused were also directed to disclose the name and address of the person from whom the drugs were acquired in keeping with Section 18A of the Act. 5.Finding the reply of the accused dated 13.11.2006 unsatisfactory and that the same did not disclose the name of the person from whom the drugs were purchased, a proposal was submitted to the Director of Drugs Control, Tamilnadu and accordingly, sanction was accorded to prosecute A1 to A3 alleging that they have contravened the provisions of Section 18(c) of the Act and were liable to be punished under Section 27(b)(ii) of the Act thereof as also that they were liable for punishment under Section 28 for offence under Section 18-A. The lower Court was pleased to take cognizance of the complaint in C.C.No.121 of 2007 and to issue process against the accused. 6.Challenging the action of the lower Court in issuing process, Mr.G.Krishnamurthy, learned counsel appearing on behalf of the learned counsel for the petitioners submitted that Section 18 of the Act spoke of offences thereunder and that the same would be committed "from such date as may be fixed by the State Government by notification in the official gazette". As the complaint did not disclose whether or not the requisite notification had been issued by the State Government, the cognizance taken by the lower Court in the absence thereof was bad. As such, the petitioners could not be prosecuted for offence under Section 18(c) of the Act. As regards the requirement of Section 18-A requiring every person who is not a manufacturer of a drug or cosmetic or his agent or distributor thereof to disclose to the inspector, the name, address and other particulars of the person from whom they acquired the drug or cosmetic, it is submitted that as against the complaint averment of the accused not informing the name and address of the person from whom the drugs were purchased, the very list of documents filed along with the complaint referred to the copy of the purchase bill and a https://hcservices.ecourts.gov.in/hcservices/ perusal of such bill would clearly show the person from whom the drugs had been purchased stood informed therein. This bill had been seized by the inspector even at the stage of inspection and hence, the complaint in respect of offence under Section 18-A was not made out. The learned counsel submitted that the lower Court has taken cognizance of the case and issued process in a mechanical manner, issue of process was a serious matter entailing several consequences upon the persons against whom process was issued and if the lower Court had duly applied its mind, process would not have been issued by the lower Court. 7.Though in the petition, other grounds such as the 1st accused premises being used also by Doctors practising in Allopathic medicine and of stocks thereof being for their use etc., are raised, such grounds rightly have not been pressed before this Court. 8.I have heard Mr.N.Kumanan, learned Government Advocate (Crl.Side) appearing on behalf of the State in response to the arguments advanced by Dr.G.Krishnamurthy, learned Counsel for the petitioner. 9.The learned Government Advocate (Crl.Side) drew the attention of this Court to the counter filed by the respondent and informed that due process of law had been resorted to right from the stage of inspection to the stage of filing the complaint. Even the holding of Allopathic drugs stocked for sale without due license would constitute an offence and this was a case where the accused had been found in possession of such drugs without holding the requisite license. 10.Countering the submission of the learned counsel for the petitioners with reference to the notification issued by the State Government towards prosecuting an offence under Section 18, the learned Government Advocate (Crl.Side) submitted that what was necessary for the lower Court to consider at the initial stage was the prima facie making out of a case and the lower Court duly had arrived at such satisfaction. In the course of the trial, the prosecution would satisfy the lower Court regarding the issue of notification by the State Government. On the submission of the learned counsel for the petitioners on Section 18-A, the learned Government Advocate (Crl.Side) submits that the submission is totally unfounded. The purchase bills which were seized from the accused were in relation to only some of the drugs held by them while a large variety of drugs were held by the accused and the bills obtained from them only disclose the address in respect of some thereof. Thus the offence under Section 18-A certainly would stand made out. 11.I have considered the rival submissions. https://hcservices.ecourts.gov.in/hcservices/ 12.This Court is in fullest agreement with Mr.N.Kumanan, learned Government Advocate (Crl.Side) on both issues. At the initial stage, what is required is the prima facie satisfaction of the Magistrate towards taking cognizance. The fact of the issue of notification as required under Section 18 or absence thereof could be established in the course of the trial. The offence under Section 18A would be made out if there was no explanation or information by the accused as to the persons from whom the drugs had been purchased even in respect of some of the drugs seized from the accused. 13.In the above circumstances, this Court finds no merit in the Criminal Original Petition and accordingly, the same shall stand dismissed. Consequently, the connected miscellaneous petitions are closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar gm To 1 The Chief Judicial Magistrate, Thiruvallur. 2 The Drug Inspector, Thiruvottiyur Range, Thiruvallur Range,201, JN Road, Thriuvallur 3 The Public Prosecutor, High Court, Madras. Crl.O.P.No.30365 of 2007 and M.P.Nos.1 and 2 of 2007 DM (CO) https://hcservices.ecourts.gov.in/hcservices/