IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 Crl.MC.No. 131 of 2010() ------------------------ C.C. 718 OF 2005 OF JFCM, PERUMBAVOOR. PETITIONER(S): APPELLANT (ACCUSED) --------------------------------------------------------- DR.A.M.MUHAMMED MUSTHAFA, AMALIPPURATHU HOUSE, ODAKKALI, ERNAKULAM DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENT(S): (INFORMANT AND COMPLAINANT) -------------------------------------------------------------------------- 1. K.K.ALIKUNJU, KORAMALAPUTHENPURA VEETTIL, MULAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT. 2. STATE, REPRESENTED BY THE DRUGS INSPECTOR (INTELLIGENCE BRANCH), OFFICE OF THE ASSISTANT DRUGS CONTROLLER, KAKKANAD, ERNAKULAM, KOCHI - 682 030. BY PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/01/2010, THE COURT ON O5/02/2010 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 131 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of February, 2010. ORDER This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to have Annexure 10 complaint registered as C.C.718 of 2008 before the Judicial Magistrate of the First Class, Perumbavoor quashed. 2. Petitioner is a retired Government Homoeopothy doctor. He retired on superannuation on 31.3.2007. Petitioner is the owner of a room bearing No.VI/278 of Asamannoor Grama Panchayat. Room No.VI/277 is owned by the wife of the petitioner. Petitioner was conducting a Homoeopathic clinic in Room No.VI/277 and Room No.VI/278 has been rented out to Dr.Prakasam, who was conducting a clinic therein. It was let out on lease on the basis of a rent deed. He was working as a Consultant Physician in Modern Medicines with effect from 1.6.2005 onwards. He has stored Crl.M.C. 131/2010.. 2 allopathic medicines therein. It is stated that on the basis of the complaint said to have been received by the second respondent, an inspection was conducted in Room No.VI/278 and certain allopathic medicines were seized. Mahazar was also prepared and Section 22 notice under the Drugs and Cosmetics Act, 1940 was issued to the petitioner. The said notice is marked as Annexure A3. Room No.VI/278, ever since the rent deed, is in the possession of Dr.Prakasam and he was paying tax to the Panchayat. A copy of the tax receipt paid by him is produced as Annexure A4. Petitioner produced the bills of medicines purchased by Dr.Prakasam for his clinic and that was also produced before the second respondent. Petitioner filed his objections to the notice pointing out that it was Dr.Prakasam, who was running the clinic in room No.VI/278 and he has nothing to do with the said clinic. Petitioner also filed a representation before the Drugs Controller, Thiruvananthapuram. Dr.Prakasam also sent a representation before the second respondent to the effect that the room was in his custody and it was he who Crl.M.C. 131/2010.. 3 had bought the medicines,which were seized. The representation of Dr.Prakasam is produced as Annexure A9. Without adverting to any of these materials, the second respondent went on to file a complaint before the JFCM Court, Perumbavoor against the petitioner under Section 32 of the Drugs and Cosmetics Act, 1940 for the offences punishable under Section 27(b)(ii), 22(3) read with Section 18(c) of the said Act. The complaint was taken on file as C.C. 718 of 2008 and summons was issued to the petitioner. Copy of the complaint is produced as Annexure A10. Petitioner points out it was not proper on the part of the second respondent to have laid a complaint before the JFCM, Perumbavoor especially when the documents showing that it was Dr.Prakasam, who was conducting the clinic in Room No.VI/278 have been produced before him. It was without adverting to any of those documents that the complaint has been laid. Petitioner says that the act of the second respondent is a clear abuse of the process of court and it needs interference at the hands of this court. Crl.M.C. 131/2010.. 4 3. Learned Public Prosecutor pointed out that the petitioner can produce all these documents before the court concerned and seek relief thereunder. It was also contended that though notice was issued to the petitioner, he has not replied to the same. According to the learned Public Prosecutor, it was for the petitioner to show that he did not possess the room and that he was not running the clinic therein. It was also for him to show that the medicines were kept by someone else and not him. It is pointed out that no grounds are made out for interference at this point of time. 4. There is no substance in the contentions raised by the learned Public Prosecutor. Annexure A1 is the certificate issued by the Panchayat which shows that room No.6/278 belongs to the petitioner. But he has produced the rent deed, which shows that the premises had been taken on rent by Dr.Prakasam from 1.6.2005 onwards, and this would be clear from Annexure A2. In Annexure A2, Dr.Prakasam had stated that it was he, who had kept the medicines in Crl.M.C. 131/2010.. 5 Room No.VI/278 for the purpose of his practice. Annexure A3 is the notice issued by the second respondent calling upon the petitioner to produce the purchase records of the medicines. Petitioner has also produced Annexure A6 which shows that it was Dr.Prakasam, who had purchased the medicines. This court asked the learned Public Prosecutor whether the prosecution had any case that the medicines covered by Annexure A6 are not the medicines seized from the premises. It is submitted that the prosecution had no such case. 5. It needs to be noticed that the second respondent had conducted the inspection on 2.8.2005. As already noticed, from 1.6.2005 onwards room No.VI/278 had been let out to Dr.Prakasam. Even after it was pointed out that it was Dr.Prakasam, who was occupying the premises, there was no efforts from the side of the second respondent to enquire into that fact. In fact, as could be seen from Annexure A8, the rent deed was also produced before the second respondent, which was forwarded to the Drugs Crl.M.C. 131/2010.. 6 Controller (Intelligence Branch) Ernakulam. Annexure A9 is a letter addressed to Drugs Inspector by Dr.Prakasam where he confirms that he is in occupation of room No.VI/278 from 1.6.2005 and he has been doing consultancy service in that room. 6. In the light of the above evidence that the issue as to whether the proceedings should continue against the petitioner is to be considered. 7. There is nothing to show that the documents produced by the petitioner are either concocted or manipulated. Dr. Prakasam confirmed the stand of the petitioner and it has been pointed out by Dr.Prakasam that he had taken the premises on rent from 1.6.2005 onwards and he was carrying on his consultancy service from that day onwards. He has also pointed out that it was he who had bought the medicines found in the premises and the bills have also been produced. There is no case for the prosecution that Dr.Prakasam had violated the provisions of Drugs and Cosmetics Act. Petitioner has produced sufficient Crl.M.C. 131/2010.. 7 materials to show that he had nothing to do with the premises, except that he is the owner. In the light of the above facts, there is no justification in continuing the prosecution against the petitioner. As rightly pointed out by the learned counsel for the petitioner, proceedings against him is nothing but an abuse of process of court and does not need to be continued. In the result, this petition is allowed and the proceedings in C.C. No.718 of 2005 on the file of JFCM, Perumbavoor shall stand quashed and all the further proceedings against the petitioner shall stand dropped. P. BHAVADASAN, JUDGE sb.