IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.10.2009 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA Crl.O.P.No.24222 of 2008 P.Sukumar ... Petitioner/Accused No.6 Vs. State represented by Senior Drugs Inspector Salem Zone, Salem. ... Respondent/Complainant * * * Prayer : Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in C.C.No.577 of 2005 on the file of the learned Judicial Magistrate, Krishnagiri and quash the proceedings against the petitioner. * * * For Petitioner : Mr.V.Rajamohan For Respondent : Mr.A.Saravanan, Govt. Advocate (Crl. Side) O R D E R The petitioner who has been arrayed as A6 in this case on the basis of the complaint preferred by the respondent herein for the alleged offences under Sections 18(a)(i) read with 17B(d) of the Drugs and Cosmetics Act 1940 (hereinafter referred to as "the Act") which is punishable under section 27(c) of the said Act and under section 18(a)(i) of the Act which is punishable under section 27(d) of the said Act, has come forward with this petition seeking for the relief of quashing the proceedings pending in C.C.No.577 of 2005 on the file of the learned Judicial Magistrate, Krishnagiri. 2. Mr.V.Rajamohan, learned counsel appearing for the petitioner contended that the petitioner has been implicated as A6 and he is a licensed Shop Owner namely M/s.Sukumar Medicals situated at Krishnagiri. It is submitted that the case of the prosecution is that the petitioner's shop was inspected by the Senior Drug Inspector, Salem II Range and the Assistant Director of Drugs Control, Salem Zone on 17.2.2004 and on verification, it was found that the petitioner has purchased 20x20x10's Teenmox capsules which is manufactured by A1 under Invoice No.212 dated 29.12.2003. 3. It is further submitted that the petitioner had already sold 1 x 10x10 of Teenmox capsules. The learned counsel would further submit https://hcservices.ecourts.gov.in/hcservices/ that the further allegation against the petitioner is that the petitioner's premises was also found with stocks of the drugs as detailed below: "1.6x20x10 Tablets of Auto, B.Nok.Auto 1001, Mfg.Date: Feb.03, Exp. Date: Jan.05, Manufactured by M/s Broadman Pharmaceuticals, 5/6 Chennai Road, Sundampatty-635 108. 2.5x25x20 Capsules of Diphenhydramine Hcl Capsules, B.No.DPH 101, Mfg. Date: 7/02, Exp. Date: 6/04, Manufactured by M/s Broadman Pharmaceuticals 5/6 Chennai Road, Sundampatty 635 108." 4. It is submitted that the further allegation is that the Drug Inspector has also taken samples from the above said stocks and obtained certified copy of the Purchase Invoice No.212 dated 29.12.2003 for the purchase of Teenmox Capsules from the firm/A-1, the licensed manufacturer, and a voluntary statement dated 17.2.2004 was also recorded from the petitioner/A6. It is submitted that the allegation as per the complaint is that the seized drugs which were said to have been manufactured by M/s.Broadman Pharmaceuticals were reported to be of standard quality as per the analysis report dated 31.3.2004. But the samples said to have been manufactured by A1 - M/s.Teen Pharmaceuticals were found to be not of standard quality and spurious as per the analysis report dated 6.5.2004. Therefore, it is submitted that the petitioner, who has been arrayed as A6 and the manufacturer A-1 and other accused totally numbering six have been implicated in this case for the contravention of the following sections: "(i) Section 18(a)(1) of the Drugs and Cosmetics Act 1940 read with section 17B(d) of the said act, for having manufactured and sold a spurious drug namely Teenmox, B.No.T-108, punishable under section 27(c) of the said Act. (ii) Section 18(a)(1) of the Drugs and Cosmetics Act 1940 for having manufactured and sold, a Not Standard Quality drug namely Teenmox Capsules, B.No.108, which is punishable under section 27(d) of the said Act and (iii) Section 18B of the said Act, read with Rule 78(c) of the Drugs and Cosmetics Rule 1945 for not maintaining the records of manufacture as per particulars given in Schedule U, for Teenmox Capsules, B.No.108 which is punishable under section 28A of the said Act 1940." 5. It is contended by the learned counsel for the petitioner that the petitioner is admittedly a licensed Shop Owner and he is not the https://hcservices.ecourts.gov.in/hcservices/ manufacturer of the alleged spurious drugs. Further in the complaint, there is no allegation that the petitioner had the knowledge about the contravention of the provisions under the Act or he is aware that the drugs are spurious and not of standard quality. Therefore it is contended that the petitioner is entitled to the protection provided under section 19(3) of the Act. It is submitted that the petitioner during the time of inspection and search also provided the details of the manufacturer as per the provisions under section 18A of the Act. The learned counsel would further submit that even to the show cause notice, the petitioner/A6 has given an explanation to the effect that he is only a licensed Shop Owner and he has purchased the drugs from A1 who is a licensed manufacturer and he has no knowledge that the drugs are of spurious and not of standard quality. Therefore it is contended by the learned counsel for the petitioner that allowing the proceedings to continue against the petitioner would be of clear case of abuse of process of Court and as such the proceedings is liable to be quashed in so far as the petitioner is concerned. 6.Mr.A.Saravanan, learned Government Advocate (Crl. side) contended that the petitioner has been arrayed as A6 out of six accused and he has been implicated for the alleged contravention of the provisions under the Act for selling the spurious and not of standard quality drugs. It is fairly submitted by the learned Government Advocate that as per the allegation the petitioner is a licensed Shop Owner namely Sukumar Medicals, and the drugs were found to be manufactured by A1 and A2, the Managing Partner of the Firm of A1, also categorically admitted that the first accused is the licensed Firm and the drugs seized from the shop of A-6 are manufactured by A1/Firm. 7. I have carefully considered the submissions made by both sides and perused the impugned complaint and other materials available on record. 8. It is seen that the petitioner has been arrayed as A6 and he has been implicated on the allegations as stated above. The admitted case of the prosecution is to the effect that the petitioner/A6 is a licensed shop owner namely M/s.Sukumar Medicals. The sum and substance of the allegation as per the complaint is to the effect that certain drugs were seized by the Drug Inspector during the time of inspection and on analysis those drugs were found to be spurious and not of standard quality and as such the accused are implicated for the alleged contravention of certain specific provisions as stated above. 9. The main contravention of the provision alleged in the complaint is under Section 18 of the Act. Section 18 reads hereunder: https://hcservices.ecourts.gov.in/hcservices/ "18.Prohibition of manufacture and sale of certain drugs and cosmetics --- From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf -- (a)manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute -- (i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious; (ii)any cosmetic which is not of a standard quality or is misbranded or spurious; (iii)any patent or proprietary medicine, unless there is displayed in the prescribed manner on the lable or container thereof (the true formula or list of active ingredients contained in it together with the quantities, thereof) (iv)any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims (to prevent, cure or mitigate) any such disease or ailment, or to have any such other effect as may be prescribed; (v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended; (vi)any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder; (b) (sell, or stock or exhibit or offer for sale,) or distribute any drug ( or cosmetic) which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder; (c) [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 accordance with the conditions of, a license issued for such purpose under this Chapter: Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of https://hcservices.ecourts.gov.in/hcservices/ examination, test or analysis: provided further that the (Central Government) may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the (manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale) or distribution of any drug or class of drugs not being of standard quality." 10. It is pertinent to note that in the impugned complaint itself it is categorically stated that the petitioner/A6 is a licensed owner of the shop namely M/s.Sukumar Medicals and the said shop is licensed to sell the drugs by way of retail under the licence No.SLD/2072/20, 21 dated 13.12.2001 renewed upto 12.12.2006 and he was also permitted to maintain Cash Bill, Credit Bill copies instead of prescription Register. Therefore, on the date of inspection, i.e., on 17.2.2004 the petitioner was possessed with the licence to sell the drugs and the said licence was also valid upto 12.12.2006. 11.Added to such specific averment contained in the complaint, it is relevant to note that the petitioner/A6 also furnished the full details of the manufacturer of the said drugs namely M/s Teen Pharmaceuticals, Chennai 1, (A1) as contemplated under section 18A of the Act in respect of disclosing the name of the manufacturer etc. The yet another aspect to be borne in mind is that A2 the Managing Partner of A1 Firm also categorically stated in his letter dated 3.6.2004 that the drugs seized from the shop of A6/ the petitioner herein were manufactured by them and they are having valid drug manufacturing licence bearing No:1048/01 and 721/01 in Form 25 and 28 respectively both dated 14.12.2002 and valid upto 13.12.2007. A2 also specifically admitted about the sale of drugs namely Teenmox Capsules to A6 M/s Sukumar Medicals as per Invoice No.212 dated 29.12.2003. 12. Therefore, it is crystal clear from the allegations and averments contained in the impugned complaint that the petitioner A6 is a licensed shop owner viz. M/s.Sukumar Medicals and he has purchased the drugs namely, Teenmox Capsules, seized from his shop, from its manufacturer/A1 and even the Firm (A-1) is also a licensed firm for manufacturing drugs. 13. At this juncture it is relevant to refer section 19(3) of the Act: "19.Pleas--(1)..... (2)........... (3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves --- https://hcservices.ecourts.gov.in/hcservices/ (a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof; (b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and (c)that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquired it." 14. A reading of the said provision makes it crystal clear that a person shall not be liable for any contravention of section 18 of the Act if he is not the manufacturer of a Drug and Cosmetic or shall be for the distribution thereof, if he proves - (a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof ; (b) that he is not having knowledge about the contravention of any provisions of the Act in respect of a particular drug or cosmetic ; and (c) that the said drug or cosmetic was properly stored and remained in the same state while such drug was in his possession. 15. As far as the case on hand is concerned, it is the admitted case of the prosecution that even as per the allegations contained in the complaint, the petitioner/A-6 has acquired the said drugs, Teenmox capsules, from the licensed manufacturer/A-1, namely, Teen Pharmaceuticals. 16. There is absolutely no allegation in the complaint to the effect that the petitioner was having any knowledge about the contravention of any provisions of the Act in respect of the drugs seized from his shop and in the complaint it is categorically stated that the petitioner/A-6 through his reply dated 28.05.2004 to the show-cause notice stated that he has purchased the said drugs from the licensed manufacturer M/s.Teen Pharmaceuticals under proper invoice and he has stored the said drugs properly and he could not find that the said drug is substandard and spurious in nature. 17. At the risk of repetition, it is to be reiterated that in the complaint itself it is categorically stated that A-6 has purchased the said drugs from the licensed manufacturer bearing license Nos.1048/01 and 721/01 in Form 25 and 28 respectively both dated 14.02.2002 and valid upto 13.12.2007. Therefore, it is crystal clear even as per the admitted case of the prosecution as stated in the complaint itself that it is prima facie established that the https://hcservices.ecourts.gov.in/hcservices/ petitioner has acquired the said drugs from the duly licensed manufacturer and that he did not know and could not have ascertained that the said drugs were manufactured in contravention of the provisions of the Act and the petitioner has properly stored the said drugs during his possession in the shop. It is also to be borne in mind that as per the case of the prosecution the Drug Inspector also taken samples from the stock of the drugs kept in the shop of A-1 said to have been manufactured by M/s.Broadman Pharmaceuticals, but such drugs as per the Analyst Report dated 31.03.2004 were reported to be of standard quality and as such it is crystal clear that the petitioner could not have had any knowledge about the spurious nature or of sub-standard quality of the drugs purchased from A- 1/manufacturer and as already pointed out, there is no such allegation also from the prosecution. Therefore, the petitioner, on the basis of the admitted case of the prosecution, proved the three conditions contemplated under Section 19(3) of the Act to the effect (1) that he acquired the drugs from a duly licensed manufacturer ; (2) that he did not know and could not have ascertained the drug in any way contravened the provisions of that Section and (3) that the drug during in his possession was properly stored and remained in the same state as when he acquired it and as such this Court has no hesitation to hold that the petitioner is entitled to the protection under Section 19 (3) of the Act. 18. It is well-settled by a catena of decisions of the Hon'ble Apex Court that if the allegations contained in the complaint taken in its entirety to be true and no offence made out, then the compliant is liable to be quashed. The said principle of law is squarely applicable to the case on hand as in this case also even if the allegations contained in the complaint taken in its entirety to be true, no offence made out much less the contravention alleged in the complaint. Therefore, allowing the proceedings to continue against the petitioner pursuant to the complaint preferred by the respondent herein is nothing but a clear case of abuse of process of Court and as such the proceedings pending against the petitioner is liable to be quashed and accordingly, the proceeding pending in C.C.No.577 of 2005 on the file of the learned Judicial Magistrate, Krishnagiri, is hereby quashed in so far as the petitioner/A6 is concerned. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rpa/gg To 1. The Judicial Magistrate, Krishnagiri. 2. -DO-Through The Chief Judicial Magistrate, Krishnagiri. 3. The Senior Drugs Inspector Salem Zone, Salem. 4. The Public Prosecutor, Madras High Court, Madras. 1 cc To Mr.N.Mohideen Basha, Advocate, SR.6775 Crl.O.P.No.24222 of 2008 BS(CO) SRA(05/03/2009) https://hcservices.ecourts.gov.in/hcservices/