IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 Crl.MC.No. 786 of 2001() ------------------------ CC.699/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... PETITIONERS/ACCUSED NOS. 1 TO 4: --------------- 1. M/S. GLAXO (I) LIMITED, DR. ANNIE BESANT ROAD, MUMBAI-400 025, INDIA REP. BY MR, H.R. KHUSRUKHAN, MANAGING DIRECTOR, 22, HILL PARK, DR.A.G. BELL MARG, MUMBAI-400 006. 2. SRI.G.K. NAIR, TECHNICAL DIRECTOR, M/S. GLAXO (I) LIMITED DR. ANNIE BESANT ROAD, MUMBAI-400 025, INDIA. 3. SRI. M.H. NAIK, PERSON-IN-CHARGE (DISTRIBUTION/SALE), M/S. GLAXO (I) LIMITED DR.ANNIE BESANT ROAD, MUMBAI-400 025, INDIA. 4. SRI.N. KATARA, PERSON-IN-CHARGE (DISTRIBUTION/SALE), M/S. GLAXO (I) LIMITED, DR. ANNIE BESANT ROAD, MUMBAI - 400 025, INDIA BY ADV. SRI.M.N.SUKUMARAN NAYAR(SR.) SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENTS/COMPLAINANT & STATE: --------------- 1. THE DRUGS INSPECTOR (ADDL.), OFFICE OF THE DRUGS INSPECTOR, PATHANAMTHITTA. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SRI MUHAMMED PUZHAKKARA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.M.C.No.786 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2008 O R D E R Petitioners, who have been arraigned as accused Nos.1 to 4 in C.C.No.699/2000 on the file of the Judicial Magistrate of First Class, Thiruvalla, have preferred this petition under Section 482 of the Code of Criminal Procedure to quash the above proceedings as against them. 2. The above case was instituted by the Drugs Inspector (Additional), Pathanamthitta, alleging that Livogen Haematinic Syrup (batch No.K-125) manufactured by M/s. Glaxo (I) Limited (petitioner No.1) was found to be substandard in quality not only by the Government Analyst/Drug Testing Laboratory, Thiruvananthapuram but also by the Central Drugs Laboratory, Calcutta. 3. According to the Drugs Inspector/complainant, he had sent the above drug for analysis after purchasing the same from Accused No.11. On inspection of the premises of accused No.11, the Drugs Inspector found huge quantity of the above syrup stocked for sale. He further found large 2 Crl.M.C.No.786/01 quantity of sediment in the syrup. After drawing sample from the drug in question, it was sent for analysis to the Drug Testing Laboratory at Thiruvananthapuram. In the report dated October 23, 1998, the analyst certified that the syrup was not of standard quality. 4. Accused No.11 disclosed that he had purchased the syrup from accused No.1(petitioner No.1). The Manager/accused No.1 had informed the complainant that the stock had been received from accused No.1. It is also revealed from the complaint that the sample was forwarded to the Drug Laboratory at Calcutta at the request of accused No.1. The report of the analyst at Calcutta reconfirmed the view expressed by the analyst at Thiruvananthapuram. 5. It is further alleged by the complainant in the complaint that, on enquiry, accused No.1 had informed that Livogen Haematinic Syrup (batch No.125), the sample from which was sent for analysis, was manufactured by M/s. Kemwell Limited, Bangalore (accused No.5) on a loan licence basis for and on behalf of accused No.1. 6. I do not propose to refer to the various other 3 Crl.M.C.No.786/01 averments with regard to the enquiry conducted by the Drugs Inspector before launching the prosecution against the accused in the complaint, who are 12 in number. Suffice it to say that petitioners herein are stated to be the manufacturer company represented by its Managing Director, Technical Director of the manufacturing company and persons in charge (distribution and sale) of the company respectively. Petitioners are alleged to have committed offences punishable under Section 18(a)(i) and Rule 95 read with Section 27(d) of the Drugs and Cosmetics Act, 1940 read with Rule 96(iv) of the Rules. In this context, it may also be mentioned that the complainant has got a specific case that accused No.1- company has committed the offence of misbranding as well, and therefore, the company is liable to be prosecuted for the said offence also. 7. It is contended by learned counsel for the petitioners that, even assuming that the company (petitioner No.1) is liable to be prosecuted for the alleged offence, there is no rhyme or reason to prosecute petitioners 2 to 4. It is pointed out by the learned counsel for petitioner No.2 that Technical 4 Crl.M.C.No.786/01 Director of the company is stationed in Bombay. Similarly, petitioners 3 and 4 who are the persons in charge of distribution and sale are working in the office at Bombay. There is absolutely no averment or allegation in the complaint that petitioners 2 to 4 had anything to do with the alleged manufacture and sale/distribution of the drug in question. There is considerable force in the above contention. 8. Learned counsel for the petitioners though has vehemently contended that prosecution against the company is also liable to be quashed, I am not inclined to accept the above plea. In my view, the company (petitioner No.1) has to necessarily urge all its contentions before the trial court in the course of trial since admittedly several disputed questions of fact are also involved in the case. Necessarily, the complainant has to prove the charge levelled against each and every one of the accused. 9. The question is whether accused No.1 would be liable to be punished for the offence alleged or whether it can be exonerated for the reason that the drug in question was allegedly manufactured by accused No.5 albeit on the basis of 5 Crl.M.C.No.786/01 a loan licence arrangement. These are all questions to be decided on the basis of the evidence to be adduced by the parties. In that view of the matter, I am not persuaded to accept the plea of the learned counsel for the petitioners to quash the proceedings against petitioner No.1 also. However, in the absence of any specific allegation or averment in the complaint as against petitioners 2 to 4, I am satisfied that the proceedings initiated against those accused are liable to be quashed. I do so. Crl.M.C is allowed to the above extent. Petitioner No.1 shall appear before the trial court on December 31, 2008. The court below shall proceed with the trial of the case and dispose it of expeditiously. (A.K.BASHEER, JUDGE) cl 6 Crl.M.C.No.786/01 A.K.BASHEER, J. CRL.M.C.No.786 OF 2001 O R D E R 3rd December, 2008