9. cr appln 3541-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3541 OF 2010 Samir Shantilal Somaiya & Anr. .. Applicants Vs The State of Maharashtra & Ors. .. Respondents Mr. Rahul R. Singh for the Applicants Mr. S.A. Shaikh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 27th SEPTEMBER,2010. P.C.: 1. Heard the learned advocate for the applicants-original accused nos. 7 and 8 and learned APP for the State. 2. Leave to amend. Amendment to be carried out forthwith. 3. The applicants-original accused nos. 7 and 8 are seeking quashing of Regular Case No. 127/SW/06 which is pending before the learned Metropolitan Magistrate, 15th Court, Mazgaon, Mumbai. The said case is under Section 18(a) (i) read with Section 17(B), 18 (c) and 18(a)(vi) of the Drugs and Cosmetics Act 1940. 4. The case of the prosecution is that the applicants- 1 9. cr appln 3541-10.doc original accused nos. 7 and 8 are the trustees of chemist shop of K.J. Somaiya Medical Trust which is a charitable trust. In the year 1996, accused no. 1 was appointed as agent for running the said chemist shop and he was running the said chemist shop from 1996 onwards. He was responsible for day to day working of the shop, purchase and sale of drugs and also responsible for any breach of any laws and regulations relating to the chemist shop and sale of drugs. The said shop was under the supervision of accused no. 1 and he was responsible for the day to day working of chemist shop including sale and purchase of drugs. The prosecution case is that on 9th May 2005, accused no.1 sold tablets 'Ativan' instead of capsules 'Autrin' to the patient Ms. Samant. 5. Learned advocate for the applicants submitted that though applicant nos. 7 and 8 are the trustees of the said trust including the chemist shop, however, it was only accused no. 1 who was in charge of and was responsible for the conduct of day to day working of the said chemist shop including sale and purchase of drugs. He pointed out that in the complaint, it has specifically stated that accused no. 1 is the agent of the said chemist shop of the trust and accused no. 1 is appointed as a person in charge and responsible for the sale and purchase of medicines in the said store and also responsible for any breach of the laws 2 9. cr appln 3541-10.doc relating to the said chemist shop. Mr. Singh submitted that on the relevant day and time, it was accused no.1 who had sold wrong medicines i.e 'Ativan' tablents instead of 'Autrin'. Autrin is used in case of iron deficiency and it it meant to supplement the iron in the body of the patient and to raise Hemoglobin level of the patient whereas Ativan is a medicine which is used to induce sleep. 6. It is not the prosecution case that the applicants were present in the shop at the relevant time. It is also not the prosecution case that they were in any way involved in the day to day working of the shop or that they were responsible in any way for sale of wrong medicine. In fact, in the complaint, it is specifically stated that accused nos. 4 to 8 are the trustees and they were not aware that the tablet Ativan was wrongly sold instead of Autrin which was prescribed to the patient. The complaint clearly shows that it was accused no. 1 who was in charge of the shop and he was responsible for daily working of the said shop including sale and purchase of the drugs. On the relevant day, he had sold the wrong medicines to the patient. The chemist shop has been given to accused no. 1 to run the same vide agreement dated 19th July 1996 and since then, till the incident occurred, accused no. 1 was running the said shop and he was wholly in charge of the said shop and responsible 3 9. cr appln 3541-10.doc for the daily working of the said shop. 7. Looking to the averments in the FIR and the other material gathered by the investigating agency, there is no sufficient material to proceed in respect of the applicants- original accused nos. 7 and 8, hence the complaint and proceedings relating thereto in relation to the applicants are quashed. It is made clear that the complaint shall proceed in respect of the other accused. 8. Application disposed of. [SMT. V.K. TAHILRAMANI, J.] 4 9. cr appln 3541-10.doc 5