1. Through the instant petition, petitioners challenge the validity and legality of the Criminal Complaint filed by respondent No.1 against them under Section 18(a)(i) read with Section 27 (d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act) pending before the Court of learned Chief Judicial Magistrate Udhampur.
2. The facts of the case stated are that the petitioner No.1 claims to be a holder of wholesale licence and Petitioner No. 2 claims to be a holder of retail licence under the Provisions of aforesaid Act for running their respective businesses. It is stated that on 24.08.2007, respondent No. 1 allegedly lifted the samples of Drug ‘Cap. Minicycline’ from the premises of petitioner No. 2 and forwarded the sample portion of the drug in question to the Government Analyst in Form 18 under Rule 57 of the Drugs and Cosmetics Rules, 1945 for test and analysis under the provisions of Section 23 of the aforesaid Act. Thereafter, the office of the Government Analyst forwarded the certificate test and analysis dated 29.09.2007 under Form 13 and declared the sample of the drug ‘Cap Minicycline’ to be not of standard quality as defined in the Act with reason that the sample fails in assay of Doxycycline.
3. Learned counsel for the petitioners states that respondent No. 1 issued a letter dated 26.10.2007 to petitioner No, 2 and informed him that drug lifted from his premises has been declared not of standard quality and directed him to furnish details of person/firm from whom drug has been purchased. Petitioner No.2 was also directed to furnish details of the stock of drug in question. It is stated that petitioner No. 2 vide his reply stated to respondent No. 1 that the drug in question has been supplied and distributed by the petitioner No.1 and also submitted the invoices/bills for the same.
4. It is further stated that respondent No.1 thereafter, issued a letter dated 28.11.2007 to petitioner No. 1 and informed him that drug supplied by him to petitioner No. 2 is not of standard quality and directed him to furnish details of the person/firm from whom drug in question has been purchased. He was also directed to furnish the details of the stock of drug. Thereafter, petitioner No. 1 vide letter dated 21.02.2007 submitted the requisite details as desired by respondent No. 1 and furnish the details of proforma respondent No. 3- M/s Shreya Life Sciences Pvt. Ltd, as the supplier of the drug in question. It is stated that during investigation, respondent No. 1 communicated with the proforma respondent Nos. 3 and 4 and petitioners were surprised and astonished to know that the respondent no. 1 has filed a complaint against them under the provisions of Drugs and Cosmetics Act, 1940.
5. Learned counsel for the petitioners states that the complaint filed against the petitioners does not disclose any offence under the Act and for the offences alleged to have been committed by the petitioners under Section 18(a) (i) read with Section 27(d) of the Act, as the drug in question was acquired from licensed manufacturer, distributor and dealer and the sample of the drug in question was taken from the premises of the petitioner No. 2 in original and sealed packed and there is no allegation in the complaint that the petitioners have tampered with the seal of the packed drug and the drug in question while it remained in possession of the petitioners was properly stored and remained in the same state. It is stated that there is no allegations in the complaint that the sample was not properly stored or it was not found in the same state as when it was acquired and the petitioners are not liable to be prosecuted under the Act in the present complaint. It is further stated that respondent No. 1 has failed to promptly send the sample portion of the drug in question for reanalysis to the Central Drug Laboratory, despite of the fact that proforma respondent No. 4-M/S Medibios Laboratories Pvt. Ltd. applied for reanalysis with the stipulated time and further, the failure of the respondent No. 1 to promptly send the sample of the drug in question for re-analysis to Central Drug laboratory has caused serious prejudice and denial of opportunity under Section 25 of the Act and the Court below has issued the process against the petitioners after the expiry of the shell life of the drug in question, therefore, the impugned proceeding against the petitioners is an abuse of the process of law and the same is liable to be quashed.
6. Supporting his contention, learned counsel for the petitioners has placed reliance upon the decision of Hon’ble Supreme Court in case titled, “State of Haryana vs. Chaudhry Bhajan Lal”, reported in AIR 1992 SC 604, wherein some guidelines were laid down where criminal prosecution can be quashed at the threshold, he has also referred 2015(1) Drugs Cases (DC) 306 case titled Radhey Sham v State of Punjab, wherein it is held that a licensee holding valid license of whole sales chemist and Druggist is entitled to protection u/s 19(3) of Act,
7. Objections have been filed by respondent No. 1. The stand taken by respondent No. 1 is that the offences alleged to have been committed by the petitioners and proforma-respondents in the complaint under question are very much serious in nature and are against the Public Health, because the Drug manufactured by the proforma-respondent No. 4 which was being sold by the petitioners was declared to be “Not of Standard Quality” as defined under the Act by the report of Government Analyst. It is further contended that during investigation, it was found that the Drug in question was supplied to the petitioner No.2 by the petitioner No. 1 and to petitioner No.1 by the proforma-respondent No. 3 and manufactured by the proforma- respondent No. 4 and finally, after completing the investigation and necessary correspondence required under the Act and receipt of sanction from the office of Controller, Drugs and Food Control, Jammu a complaint was filed before the learned Trial Court against the petitioners as well as proformarespondent Nos. 3 and 4, as all the accused were found guilty of manufacturing for selling and distributing the drug in question which was declared not of standard quality by the Government Analyst, Jammu. It is further contended that the Trial Court has rightly taken cognizance against the petitioners and other proforma respondents and as per the provisions of Section 34 of the Act, the petitioners are liable to be prosecuted in case of violation of the provisions of Drugs and Cosmetic, Act 1940.
8. I have heard counsel for petitioner at length. The only question arises in this petition is that, as to whether petitioner No.1, who claims to be a holder of wholesale licence and Petitioner No. 2 who claims to be a holder of retail licence of drugs under the Provisions of aforesaid Act, are entitled to be arrayed as accused in a complaint under section 18(a)(1) of Act launched by Drug inspector before CJM Udhampur.
9. In order to decide the controversy, relevant Sections of the Act reads as under:- “18. Prohibition of manufacture and sale of certain drugs and cosmetics:- From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf:-
(a) Manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute—
(i) Any drug which is not of a standard quality, or is misbranded, adulterated or spurious; ----------------------------------------------------------------------
19. Pleas. --------------------------------------------------------------
(3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of Section 18 if he proves-
(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributer or dealer thereof;
(b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and
(c) that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquired it.
27. Penalty for manufacture, sale etc., of drugs in contravention of this Chapter:- Whosoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes:-
(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.”
10. It is seen from section 19(3) of the Act that a person, not being a manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof. Only if the petitioners are able to establish that his case comes within the ambit of section 19(3) of the Act, then alone they can succeed. Simply because the petitioners state that they have purchased from a licensed manufacturer, they cannot be automatically relieved from the proceedings of the cases. If at all the petitioners, who are licence holder of retail and whole sale of drugs in question and of the view that the drugs have not contravened the provisions under the Act, it is also open to them to establish the same during the course of trial.
11. Initially wholesaler and retailer are liable under Section 18(a)(i) r/w 27 of the Drugs and Cosmetics Act and the defence available to them under Section 19(3) cannot be taken at initial stage. It has to be established by cogent means during trial. Whether or not the petitioners are entitled to take the plea under Section 19(3), is a matter to be decided during the trial and this Court cannot exercise its power under Section 561-A Cr.P.C. and cannot go into the same to ascertain his reasonable
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diligence as to whether the drugs in question were properly stored or purchased from the duly licensed manufacturer. If during trial, it is established that petitioners have purchased the drugs from licensed manufacturer or distributor, only then presumption in terms of section 19(3) of the Act shall be taken note by the Court and benefit would be given to petitioners. 12. The learned counsel for the petitioners has also raised various other grounds touching the facts of the case, on which I do not intend to give my opinion on such facts, since it may have a bearing on the trial. It is always open to the petitioners to raise all those factual aspects during the course of trial and thereafter. It is made clear that I have not expressed any view with regard to the merits of the case and that the trial Court shall independently examine the evidence placed before it for the purpose of coming to a just conclusion. I have gone through the law cited by learned counsel for petitioners. I am not in agreement with the law cited. 13. In view of the above reasons, the criminal petition stands dismissed. Consequently, connected miscellaneous petitions are closed.