IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.08.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.OP.No.5882/2003 Cr.MP.No.2159/2003 D.Narasimman .. Petitioner Vs State by G.Selvraj Drugs Inspector, Salem-5 .. Respondent Prayer:- This Criminal Original Petition is filed to call for the entire records in CC.No.598/2001 on the file of the Judicial Magistrate III, Salem and quash the charges as illegal and repugnant in law. For Petitioner : Mr.N.Rajavadivelu For Respondent : Mr.S.Senthilmurugan, G.A ORDER The petitioner seeks to quash the proceedings in CC.No.598/2001 on the file of the Judicial Magistrate III, Salem. 2. The private complaint has been filed against the petitioner by the respondent for the offences under Section 18(c) of the Drugs and Cosmetic Act, 1940 (herein after referred to as the Act) read with Rule 65(5)(a) and 104A of the Drugs and Cosmetic Rules, 1945 (herein after referred to as the Rules) punishable under Section 27(d) of the Act. 3. The petitioner is the Proprietor of M/s.S.S.Chemicals, having valid drug license issued by the licensing authority in Form No.20B and 21B and the license was periodically renewed by the petitioner. On 27.10.2000, the respondent had inspected the Medical stores of the Govt. Mohan Kumaramangala Medical College Hospital and it has been found that the petitioner had supplied drugs in Invoice Nos.205 and 203 and DC.Nos.200, 105 to 111 and 114 to 115 to the said Hospital, in which it was found that the batch number and the name of the manufacturer of the drug were not found mentioned in the sales bills and thus the petitioner is prosecuted for contravention of the above provisions of the Act and Rules. Further the maximum retail price has also been defaced in the outer carton as well as the label of the ampoules. On disclosure and the information made by the petitioner, the respondent had visited the premises of M/s.Milan Pharma situated at No.7, Nyniappa Street, Chennai-3 on 23.11.2000 and it had been found that they purchased the medicines under Invoice https://hcservices.ecourts.gov.in/hcservices/ No.10853 dated 11.7.2007 and ampoules were supplied on the MRP price as Rs.5.45 per ampoule. The respondent has complied with the formalities and had issued a show cause notice to the petitioner on 26.12.2000 and a reply has also been received on 20.2.2001 from the petitioner. Since the petitioner has contravened the aforesaid provisions of the Act and Rules, the private complaint has been filed against the petitioner by the respondent. 4. The learned counsel for the petitioner submitted inter alia that Rule 96 of the said Rules only specifies the manner of labelling as detailed thereto and would not apply to the manner of labelling under Rule 96 read with 104A of the Rules regarding defacing of MRP Price. He would further submit that omission of MRP Rate on the label is not an offence and therefore Section 18(c) of the Act read with Rule 65(5)(1) and 104A of the Rules cannot be invoked. According to the petitioner, in so far as the medicines supplied to the Government Institution is concerned, they are supplied only through tender and on quota basis. Therefore, only drug price control order 1995 would apply and no offence is attracted under the provisions of the Act. He would deny the accusation that the name of the manufacturer and the batch number are not found mentioned in the sales bill and as such, he would contend that there is no violation of Rule 65(5)(1) of the Rules. 5. On a careful perusal of the complaint, it is seen that in the sales bills Nos.105 to 114, there is omission in mentioning the batch number and the name of the manufacturer and thus, the petitioner Company had contravened Rule 65(5)(1)(c) and 65(5)(1)(d) of the Rules. That apart, the retail price seems to have been erased in the outer carton as well as in the label of the ampoules, which is in contravention of Rule 104A of the Rules for having defaced the inscription of MRP made by the manufacturer. When the complainant had inspected the premises of M/s.S.S.Chemicals on 23.11.2000, copies of the invoices produced thereon do not bear the signature of the competent person, which is in contravention of Rule 65(5)(1)(e) of the Rules. 6. The complaint discloses materials prima facie showing the commission of crime as alleged in the complaint. The allegations made in the complaint relates to the violation of the provisions under the Act and Rules and the allegations are prima facie sufficient for the learned Magistrate to take cognizance of the offences. 7. Exercise of power under Section 482 of Code of Criminal Procedure in a case of this nature is the exception and not the rule. It envisages three circumstances under which the inherent jurisdiction may be exercised viz. (i) to give effect to an order under the Act, (ii) to prevent abuse of process of court and (iii) to otherwise secure the ends of justice. 8. In the case of R.P.Kapur Vs. State of Punjab [AIR-1960-SC- 866], the Honourable Supreme Court has summarized the categories of cases where inherent power can and should be exercised to quash the https://hcservices.ecourts.gov.in/hcservices/ proceedings viz. (i) Where it manifestly appears that there is a legal bar against the Institution or its continuance of criminal proceedings (ii) Where the allegations in the FIR or in the complaint taken on its face value and accepted in their entirety do not constitute the offence as alleged and (iii) Where the allegations constitute an offence, but there is no legal evidence adduced clearly or manifestly failed to prove the charge. 9. In dealing with the last category, it is made to bear in mind the distinction between a case, where there is no legal evidence or where there is evidence, which is clearly inconsistent with the accusation made and a case where there is legal evidence, which on appreciation may or may not support the accusation. When exercising jurisdiction under Section 482 of the Code of Criminal Procedure, the High Court would not ordinarily embark upon an enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained and that is the function of the trial judge. 10. Keeping in view the principles of law as enunciated above, whether the material in existence in this case would be sufficient for holding the accused guilty has to be considered only at the time of trial. That being so, as the averments made in the complaint prima facie discloses offences as mentioned thereto in the complaint, interference by this court at the threshold with the complaint, which should be in a very exceptional circumstances is not desirable. 11. Ultimately, acceptability of materials and the defence raised by the petitioner is only a matter of trial and this is not a fit case where it could be said that the complaint does not disclose crime or offence as alleged in the complaint. Therefore, this criminal original petition is dismissed. Consequently, connected MP is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar Srcm To: 1.The Public Prosecutor, High Court, Madras 2.The Judicial Magistrate III, Salem 3.-do- Thro The Chief Judicial Magistrate, Salem. + 1 CC to Mr.N.Rajavadivelu,Advocate,SR.38944 Crl.OP.No.5882/2003 TM(CO) EM/14.10 https://hcservices.ecourts.gov.in/hcservices/