IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD FRIDAY, THE ELEVENTH (11TH) DAY OF MARCH, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Crl.P.No.6554 of 2010 Between: M/S Ganesh Pharma,Delhi & another … Petitioners And: State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Crl.P.No.6554 of 2010 ORDER: This petition is filed under section 482 Cr.P.C. for quashing prosecution against the petitioners-A.2 & A.3 in CC No.885 of 2009 on the file of the Chief Metropolitan Magistrate, Visakhapatnam. 2. Heard the learned counsel for the petitioners and the learned Additional Public Prosecutor for the respondents-State. Perused the record. 3. The Drug Inspector, Visakhapatnam filed a complaint before the learned Chief Metropolitan Magistrate, Visakhapatnam against the accused alleging the offences under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940 (for short ‘the Act’) and the same was taken cognizance in CC No.885 of 2009. According to the complainant, the petitioners-A.2 & A.3 are the purchasers and distributors of the subject matter of the drug and supplied to the Medical Stores, KG Hospital, Visakhapatnam and that on 18.04.2007, sample of drug by name ‘G. Diclo injection’ was collected from Medical Stores of K.G. Hospital, and the same was sent for analysis and the Public Analyst gave report on 23.05.2007 stating that the sample drug is not of standard quality. After securing necessary information, a letter was addressed to the petitioners, who in turn informed that they purchased the said drug from A.1 Company. After obtaining necessary sanction, the Drug Inspector filed a complaint on 31.08.2009 and cognizance of the same was taken by the learned Chief Metropolitan Magistrate. . 4. Admittedly, the petitioners-A.2 and 3 are not the manufacturers of the subject drug. A.1 is the manufacturer of the subject drug. According to the petitioners, they purchased the drug from A.1 under valid invoice and they are entitled for protection under Section 19(3) of the Act. Learned counsel for the petitioners further contends that in view of the inordinate delay in filing the complaint, the petitioners have been deprived of valid right under Section 25(3) and (4) of the Act for sending the sample for re-analysis. 5. Insofar as the second contention is concerned, the sample was lifted on 18.04.2007 and the analyst sent his report on 23.05.2007 and the complaint was filed on 31.08.2009. Thus, there has been considerable delay in filing of the complaint after lifting of the sample. There is nothing on record to show that on what date the shelf life of the drug expires. Even other wise, admittedly, the petitioners have not intimated the Drug Inspector about their intention to send the sample for re-analysis nor did the petitioners approach the Court and filed any application seeking re-analysis of the sample after they were served with copy of the report. The petitioners have not chosen to avail the remedy by duly complying with the procedural requirements as laid down in Section 25(3) & (4) of the Act. Having thus, failed to avail the benefit of the said provisions, the petitioners cannot now be heard to plead that they are deprived of valuable right of seeking reanalysis under the above provision. 6. However, insofar as the protection under section 19(3) of the Act is concerned, the petitioners are admittedly not the manufacturers and they are only wholesale distributors. Even according to the respondent, the petitioners supplied the drug in the sealed container in the same condition. It is stated that in respect of the same drug, several cases were registered against the retailers in different places through out the State and the retailers filed petitions for quashing the prosecution in those cases and this Court in Crl.P.No.7984 of 2009 & batch and Crl.P.No.6483 of 2009 and Crl.P.No.6943 of 2009, allowed the said petitions and quashed further proceedings in those cases on the ground that the retailers are entitled for protection under Section 19(3) of the Act. Copies of the orders of those criminal petitions are also placed on record by the learned counsel for the petitioner in Crl.P.No.10169 of 2010. The present case is also covered by the earlier decisions of this Court in the above criminal petitions and the reasoning adopted therein insofar as the protection under Section 19(3) of the Act is concerned, holds good in the present case as well, in as much as the petitioners are not the manufactures and are only the distributors. 7. In the circumstances, it is held that the petitioners are entitled for protection under Section 19(3) of the Act and hence, further proceedings against the petitioners/A.2 & A.3 in CC No.885 of 2009 on the file of the Chief Metropolitan Magistrate, Visakhapatnam, are not sustainable and they are accordingly quashed. 8. In the result, the criminal petition is allowed. ____________________ G.V.SEETHAPATHY, J Date: bss