IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 Crl.MC.No. 3679 of 2003() ------------------------- S.T.2400/2002 OF JUDL. IST CLASS MAGISTRATE COURT-I, ALAPPUZHA --------------------- PETITIONERS: ACCUSED NOS. 1 AND 2: --------------------------------------------- 1. TRAIKA PHARMACEUTICALS LTD., "O.M.TOWERS", SATELLITE ROAD, AHAMADABAD 380015, GUJARATH REP.BY KETAN T.PATEL (M.D.)12, NANDI HILL OPP. ISRO STATION, SATELLITE ROAD, AHAMADABAD - 380 015. 2. KETAN R.PATEL (M.D. S/O. RAJNI BHAI.V.PATEL, 12, NANDI HILL. BY ADV. SRI.S.GOPAKUMARAN NAIR RESPONDENTS: COMPLAINANT & STATE: ----------------------------------------------- 1. P.K.SREE KUMAR, DRUGE INSPECTOR, (SPECIAL INTELLIGENCE BRANCH), OFFICE OF THE DRUGS CONTROLLER, TRIVANDRUM - 37. 2. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/03/2008, ALONG WITH CRL.M.C.Nos.258 & 332/2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER,J ============================= Crl.M.C.Nos.3679 of 2003 & 258 &332 of 2005 ============================== Dated this the 6th day of March, 2008 ORDER These three cases are being disposed of by this common order since the parties and issues involved in them are common. 2. Petitioner No.1 is a Pharmaceutical Company. The other petitioners are stated to be the Managing Director and Directors of the Company. The licencees of two drug houses who had been selling/distributing some of the products manufactured by the Company, have also joined their Principals in these petitions seeking to quash the proceedings pending against all of them on the file of the Judicial Magistrate of First Class at Alapuzha, Kottayam and Thiruvalla, respectively. 3. The Drugs Inspectors having jurisdiction in the respective areas, have launched these prosecutions against the petitioners alleging commission of offence punishable under Section 18(c) read with Section 27 (b) of the Drugs and Cosmetics Act, 1940 (for short, the Act). In the complaints filed by the Drugs Inspector in these three cases, copies of which are available on record as Annexure-I, it is alleged that the Company Crl.M.C.Nos.3679 of 2003 & 258 &332 of 2005 2 had been manufacturing and distributing Cartilamine (Glucosamine Sulphate Tablets) and Cartilamine Forte (Glucosamine Sulphate 250 mg + Chondroistin Sulphate 200 mg Tablets) without obtaining any drug manufacturing licence. According to the Drugs Inspector, the above drugs were being manufactured and distributed by the Company as though they were dietary supplements and not drugs. It is further alleged that the Company in its Website on the internet at “http/w.w.w.troikea.com/nutritional supplements” had been advising the above drugs for treatment of Osteoarthritis. In another Website of the Company (http/w.w.w.troikea.com/osteoarthritis) use of Cartilamine (500 mg three times daily) for three months and Cartilamine Forte (one or two tablets three times a day) had been advised as the adult dose for treatment of Arthritis. It is further alleged in the complaint that as per Section 3 (b) of the Act, drug is defined as all medicines for internal or external use of human beings or animals and all substances intended to be used in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals. The specific case of the complainant Crl.M.C.Nos.3679 of 2003 & 258 &332 of 2005 3 is that Glucosmanie Sulphate is used for treatment of diseases Osteoarthritis and therefore the product manufactured by the company is a drug. If it had been a dietary supplement no dosage would have been prescribed in the website, it is contended. 4. It is contended by the learned counsel for the petitioners that the above product is not a drug as alleged by the complainant. The company had been manufacturing and marketing the same as a dietary supplement. It is further contended that the two products mentioned in the complaint not being drugs as alleged by the complainant and they being only dietary supplements, the prosecution launched against the petitioners is totally illegal, vitiated and misconceived. 5. In the course of the hearing, learned counsel had submitted that the company and the Directors being wary of several prosecution launched against them, had decided to take a drug licence for manufacture of the above drugs. Accordingly on an application made by the company in this regard, the authority concerned had issued a drug licence, it was contended. Crl.M.C.Nos.3679 of 2003 & 258 &332 of 2005 4 6. In the affidavit filed by one Sri.U.K.Nair who is stated to be the Sales Development Manager of the Company, it is averred that the two products in question namely Cartilamine tablets and Cartilamine Forte tablets, are now being manufactured under a licence issued under the Drugs and Cosmetics Act ever since 2001. It is further averred that from 2001 onwards the above two products are being marketed and sold all over India as drugs only and not as dietary supplements. Annexure-III is stated to be the licence issued by the Authority concerned. But the said document does not appear to be a licence at all, as claimed by the deponent. 7. Any how, I refrain from making any further observation in this regard at this stage. In my view, the petitioners have to raise all the contentions available to them before the trial court at the appropriate stage. If the petitioners make a plea for discharge, the same shall be considered by the learned Magistrate in accordance with law and an appropriate decision thereon shall be taken expeditiously. 8. In the peculiar facts and circumstances of the case, the personal appearance of the petitioners before the trial court Crl.M.C.Nos.3679 of 2003 & 258 &332 of 2005 5 concerned shall be dispensed with, if such a motion is made on their behalf. The cases shall be disposed of as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. A.K.BASHEER,JUDGE dvs