HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.6483 of 2009 Dated : 27.08.2009 Between : K.Srinivasa Rao & another ….. Petitioners a n d The State of A.P. & another ….. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.6483 of 2009 ORDER: Heard Sri Challa Dhanamjaya, learned counsel for the petitioners, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor, for both the respondents. The petitioners are facing prosecution as the fifth and sixth accused in C.C.No.378 of 2004 on the file of the I Additional Judicial First Class Magistrate, Narsaraopet, Guntur District, under Sections 22 (1) (cca) read with Section 18 (a) (vi) punishable under Section 27 (d) of the Drugs and Cosmetics Act, 1940 (for short ‘the Act’). The allegations in the charge sheet show that the fifth accused is stated to be the proprietor of the sixth accused, which is a wholesale firm dealing in drugs under wholesale drug license in Form 20-B, 21-B bearing Nos.10/A GN(N)/95 valid up to 31.12.2006. On information from the Directorate of Drugs Control Administration, Hyderabad, and on suspicion, the Drugs Inspector inspected the premises of the sixth accused on 14.02.2002 and collected samples of 5 drugs, which were claimed to have been purchased from the third accused of which the first accused was the proprietor. The remaining stocks were frozen after taking samples and the relevant forms were served on the fifth accused and the drugs on analysis were found to be ‘not of standard quality’. The purchase and sales particulars of the drugs manufactured by the second accused were furnished by the fifth accused on request by the Drugs Inspector and he stated that he returned certain stocks to the third accused, which was without permission from the Drugs Inspector. The third accused addressed a letter dated 17.03.2002 informing the Drugs Inspector that they sold the said drugs to the sixth accused. The further allegations in the charge sheet show that on further information from the fifth accused, the involvement of accused Nos.4 and 7 to 9 was also detected and thus the different accused are prosecuted in respect of different offences arising under the Act. The petitioners contend herein that he as a retail seller had no role in the manufacture or distribution of the drugs in question and the accused Nos.5 and 6 are entitled for protection under Section 19 (3) of the Act under a plea of warranty. The petitioners also contend that the drugs in question had their expiry dates in 2003 and the complaint was filed on 25.09.2004, after one year from the said expiry, thereby depriving the accused Nos.5 and 6 of their right under Section 25 sub sections 3 and 4 of the Act. Consequently they sought for quashing of proceedings against them. The petitioners relied on the decision of this Court in Crl.P.No.109 of 2008 dated 11.02.2008 wherein the learned Judge found a dealer to have sold the product in question which was in sealed containers and the learned Judge referred to the protection given by sub section 3 of Section 30 of the Insecticides Act, 1968, under such circumstances for a person who is neither an importer nor a manufacturer and who cannot have the knowledge of the contents of the containers being substandard or misbranded. The learned Judge found that when the seals of the containers were intact and were not tampered with and when the retailer did not meddle with the contents of the containers, any criminal proceedings against such retail seller are not sustainable. The same principle can be extended to the petitioners herein due to an identical protection given under Section 19 (3) of the Act. The petitioners also relied on another decision of this Court in Crl.P.No.2997 of 2001 dated 27.08.2001 wherein the learned Judge was dealing with a case under the Drugs and Cosmetics Act, 1940, and found that the sellers of the drug having no knowledge of the substandard quality of the drug were entitled to have the proceedings against them quashed. Therefore, the petitioners, on the facts as stated in the charge sheet, are entitled to the benefit of the protection under Section 19 (3) of the Act and the further proceedings against them should therefore, fail. In view of the said conclusion, no expression of opinion need be made on the contentions of the petitioners on any effect on the right to have the samples analysed by the analyst again due to delay and the question has to be left open. Accordingly, the criminal petition is allowed and the further proceedings against the petitioners in C.C.No.378 of 2004 on the file of the I Additional Judicial First Class Magistrate, Narsaraopet, Guntur District, are quashed against the petitioners. ______________________ G.BHAVANI PRASAD, J 27th August, 2009 SUR