IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2010 CORAM: THE HON'BLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.22628 of 2006 & M.P. No. 1 of 2006 1. Ventri Biological Unit of V.H.P.L., Rep. by the Specific Power of Attorney Holder Deepak Khosla No. 19, Paramathy Road Namakkal 2. Deepak Khosla 3. B. Soundarapandiyan 4. M. Devi .. Petitioners./ Accused 1 and 4 Versus State rep. by Mr. P. Annamalai Drugs Inspector Namakkal Range, O/o. The Assistant Director of Drugs Control Salem Zone, No. 7, Thiruvalluvar Street, Salem-5. .. Respondent/ Complainant Prayer: Petition filed under Section 482 Cr.P.C seeking for a direction to call for the records in C.C. No. 466 of 2005 on the file of the learned Judicial Magistrate No. 1, Namakkal and quash the same. For Petitioners : Mr. R. Shanmugasundaram Learned Senior Counsel For Rangarajan For Respondent : Mr. A. Saravanan Government Advocate (Crl.Side) https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioners seek to quash the proceedings pending against them in C.C. No. 466 of 2005 on the file of the learned Judicial Magistrate No. 1, Namakkal. In such case, the petitioners are facing prosecution for offences punishable under Sections 27(d) of the Drugs and Cosmetics Act, 1940 for alleged contravention of Section 18(c) r/w Rule 66(17) and 18(c) r/w Rule 65(5)(1)(e) of the Drugs and Cosmetics Act. 2. The accusations made as against the petitioners are as follows: 1. Section 18(c) of the Drugs and Cosmetics Act 1940 read with Rule 65(17) of the Drugs and Cosmetic Rules 1945 for having stocked the veterinary vaccines in ordinary room temperature and thus violating the storage condition of the label. Since as per the monograph of Vetenary vaccine as per page 131 of B.P (Vet), it was stated as "store protected from light at a temperature 5+-3'C. The vaccine Infectious Bursal Disease Vaccine Inactivated is a vaccine as per B.P.(Vet). The other two vaccines also fall under these general storage condition for vaccine. The label also specify the same; and 2. Section 18(c) of the Drugs and Cosmetics Act 1940 read with Rule 65(5)(1)(e) of the Drugs and Cosmetic Rules 1945 for not maintaining the carbon copy of the bill with the signature of the competent person. 3. I have heard the learned Senior Counsel Mr. R. Shanmugasundaram and the submission made by the learned Government Advocate (Crl.Side) and perused the materials in this case. 4. The learned senior counsel in support of the petition to quash proceedings submitted that as per Section 23 (1) of the Drugs and Cosmetics Act, 1940: 'an Inspector, who conducts any sample of a drug (or cosmetic) shall tender the fair price thereof and may acquire a written acknowledgement therefor'. It is submitted in the instant case that the above provision was not complied with by the Inspector. No bill or other receipts was produced along with the complaint. The first accused Firm was an unit of M/s. Venkateshwara Hatcheries Pvt. Ltd., which were the manufacturers of drugs. The main unit of the company was situated at Pune and the drugs sample, which was seized was meant for use at the Namakal unit of the company and the same were not meant for sale. Learned senior counsel relied on a decision of Calcutta High Court in Dr. Sanat Kumar Basu Vs. State of W.B. (1984 Cri.L.J.931) to support the contention that mere proof of possession under presumption that the https://hcservices.ecourts.gov.in/hcservices/ possession for sale can be made. This was a case of mere possession and that is why, no bill or evidence of compliance with Section 23 (1) of the Act was produced in the case. Learned Senior Counsel would further contend that under Section 25(2), the accused was entitled to a copy of the analysis report and under Section 25(3), a right was reserved to the person from whom the sample was taken to notify the Inspector under the Act or Court before which any proceeding in respect of sample is pending that he intends to adduce evidence in controversion of the report within twenty eight days of the receipt of a copy of the report by such person. In the instant case, a copy of the report has not been furnished to the petitioners herein in keeping with the requirements of the act. It is also submitted that sanction for prosecution in the case has been obtained on 31.03.2005. The analyst report was dated 18.05.2005. The analyst report reflected the position that the sample in the case was a standard quality as defined in the Drugs & Cosmetics Act, 1940 and Rules thereunder and IVP 2000 for the reasons "Safety Test - Safe". Learned Senior counsel would submit that a perusal of the sanction in the case reveals that the sanctioning authority was not so much as aware that the samples have been sent for analysis and the analyst report was awaited. If this position had been revealed to the sanctioning authority, he might well have awaited the report. On perusal thereof and finding that the drugs held by the accused, samples of which had been analysed were absolutely safe, the sanctioning authority well might have arrived at a conclusion that this was not a fit case to sanction prosecution. 5. Learned Government Advocate (Crl.Side) on the other hand, would submit that prosecution has been launched since the accused had stocked the vaccines in ordinary room temperature violating the storage condition of the label of the drug, which was punishable under Section 27(d) of the Act and for not maintaining the carbon copy of the bill with signature of the competent person, again punishable under Section 27(d) of the Act. Sanction has been accorded specifically in respect of such offences and the aspect of pendency of analysis report in the case really was not material for the grant of sanction. Non compliance with Section 25(2) was immaterial as the analysis report was not one that called for any challenge by the petitioners. The other contention that drugs held by the accused were not for the purpose of sale would be one which would have to be raised at the trial. On a perusal of the complaint and other documents, the lower Court found it appropriate to take cognizance and this Court would not interfere at this stage. 6. Though the contention of the learned Government Advocate (Crl.Side) made by pointing out Sections 23(1) and 25(3) of the Act may be acceptable, still the prosecution in the instant case would fail for the reason that the complaint has been launched on the https://hcservices.ecourts.gov.in/hcservices/ ground that drgs were stored at room temperature and sale of drugs was effected in contravention of rules. In the instant case, the complaint itself reflects that there was no documentary evidence for selling of the vaccines by the 1st accused firm. Such is the contention of the petitioners viz. vaccines were not meant for sale and meant for use in their hatchery units. If so, the wrongful storage of vaccines would affect none other than the petitioners. It is in this context that the submission of the learned Senior Counsel that the complaint makes no whisper of compliance with Section 23(1) of the act, which requires an Inspector, who conducts any sample of a drug (or cosmetic) to tender the fair price thereof and to acquire a written acknowledgement therefor becomes relevant. In the absence of any averment in the complaint that the fair price for the sample seized was offered or refused, the contention that the drugs were not held by the petitioners for sale becomes credible. 7. In any event, it is apparent that the sanctioning authority has not been aware that the samples taken in the case have been sent for analysis and that report there regards was awaited. It is well possible that the sanctioning authority may have awaited receipt of such report before grant of sanction and might not have accorded sanction in the case on the definite finding that the drugs held by the accused were safe. 8. Under such circumstances, this Court feels that the proceedings in C.C. No. 466 of 2005 on the file of the learned Judicial Magistrate No. 1, Namakkal may be quashed on the ground that sanction would stand vitiated for the reason that relevant particulars have not been placed and considered by the sanctioning authority. 9. Accordingly, the petition is allowed and the proceedings in C.C. No. 466 of 2005 on the file of the learned Judicial Magistrate No. 1, Namakkal are hereby quashed. Consequently, connected miscellaneous petitions is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ar https://hcservices.ecourts.gov.in/hcservices/ To 1. Judicial Magistrate No. 1, Namakkal 2. do thro the Chief Judicial Magistrate Namakkal 3. Drugs Inspector Namakkal Range, O/o. The Assistant Director of Drugs Control Salem Zone, No. 7, Thiruvalluvar Street, Salem-5. 4. The Public Prosecutor, High Court, Madras 2 ccs to Mr. Rangarajan, Advocate, Sr. 11988 Crl.O.P.No.22628 of 2006 TRM (CO) kk 25/3 https://hcservices.ecourts.gov.in/hcservices/