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Andhra High Court · body

2003 DIGILAW 296 (AP)

Vinta Prasad Reddy v. State Of A. P.

2003-02-24

K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THIS petition is filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in C. C. No. 60/1998 on the file of the learned II Metropolitan Magistrate, Vijayawada. ( 2 ) THE brief facts that are necessary for the disposal of the present petition are that the Drugs Inspector, Zone-I, Vijayawada, inspected the wholesale pharmaceutical firm-M/s. Sai International, and picked up samples of Amoxycillin Capsules I. P. 250 mg. , and Ampicillin 500 (Ampicillin capsules IP 500 mg.) manufactured by M/s. Hicks Pharma-2nd respondent, for the purpose of analysis, that he forwarded the samples on 29-5-1997 to the Government Analyst and Director, Central Drugs Laboratory, Calcutta, that the Analyst gave a report after analysis that the samples were not of standard quality and they did not conform to the I. P. with respect to the contents of Amoxycillin and Ampicillin, that thereafter the Drugs Inspector forwarded the signed copy of Form-13 reports to Sri A. Venkateswara Rao, Proprietor of Sai International, to disclose the source of supply of the said drugs, that Sri Venkateswara Rao informed the Drugs Inspector that he purchased the said drugs from the 2nd respondent vide invoices No. 003/1996-97, dated 28-5-1996, and 006/96-97, dated 7-7-1996, respectively, that thereafter the Drugs Inspector forwarded Form-13 reports and sealed portions of the samples to the 2nd respondent requesting it to confirm the supplies made to Sai International on 19-9-1997, that the Drug Inspector received confirmation from the 2nd respondent of sale of the said drugs to Sai International, that thereafter the Drug Inspector obtained the requisite sanction and seized the balance stock on 11-11-1997, and that thereafter he filed the complaint against the petitioners for offences under Section 18 (a) (i) read with Section 17-B (d) punishable under Section27 (c) of the Drugs and Cosmetics Act (for brevity, the Act ). ( 3 ) LEARNED counsel for the petitioners contended that the loan license shows that the expert staff, namely technical staff of M/s. Rossvel Pharmaceuticals shall have to manufacture the durgs and that A2-2nd petitioner is authorized to sell the drugs by way of wholesale dealings by the loan licensee and store for sale of the drugs manufactured by Rossvel Pharmaceuticals, that the 2nd petitioner being a distributor cannot be prosecuted and, hence, the prosecution is liable to be quashed. On the other hand, learned Public Prosecutor contended that A-1, on behalf of A-2-firm, manufactured and sold the drugs in question to Athakuri Venkateswara Rao, proprietor of Sai International, from where the samples of the drugs in question were picked up for analysis, that after analysis the Analyst found the drugs to be spurious within the meaning of Clause (d) of Section 17-B of the Act, and that at this stage there is no material to show that the drugs in question were manufactured by Rossvel Pharmaceuticals and the material filed by the Prosecution prima facie make out a case for an offence punishable under Section 27 (c) of the Act and hence the petition should be dismissed. ( 4 ) THERE cannot be any dispute that in order to quash a complaint under Section 482, Cr. P. C. , what the Court has to see is that the allegations in the complaint, if accepted as true, make out a case for the offences alleged, and if the allegations make out a case, then the proceedings cannot be quashed. On this point, it is pertinent to refer to a decision in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 the scope of Section 482, Cr. P. C. is set out and reiterated in State of Karnataka v. M. Devendrappa, 2002 (1) Supreme 192 , wherein some illustrative categories in which the power under Section 482, Cr. P. C. can be exercised are mentioned as below: (1) "where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the F. I. R. and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the F. I. R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the F. I. R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the F. I. R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the F. I. R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due private and personal grudge. " ( 5 ) BEARING the above principles in mind, it has to be seen whether the allegations in the complaint make out a prima facie case for offences under Section 18 (a) (i) read with Section 17-B (d) punishable under Section 27 (c) of the Act. ( 6 ) SECTION 18 (a) (i) reads as follows : 18. " ( 5 ) BEARING the above principles in mind, it has to be seen whether the allegations in the complaint make out a prima facie case for offences under Section 18 (a) (i) read with Section 17-B (d) punishable under Section 27 (c) of the Act. ( 6 ) SECTION 18 (a) (i) reads as follows : 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 this 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; x x x x x x x x x x x x x x x x x x x x x x x x x x x x ( 7 ) A perusal of the above Section makes it clear that 7a drug, which is not of standard quality, or is misbranded, adulterated or spurious, cannot be manufactured for sale or for distribution, or sold or stocked or exhibited or offered for sale, or distributed. Section 17-B (d) of the Act defines a drug to be spurious if it has been substituted wholly or in part by another drug or substance. ( 8 ) IT is now to be seen whether, with reference to the allegations in the complaint, the petitioners committed any of the offences alleged against them. ( 9 ) AS per Form 13-reports given by the Analyst, the label claim of Amoxycillin per each capsule of Ampicillin I. P. was 250 mg. , but on analysis it was found to contain 103. 8 mg. , of Ampicillin i. e. , 41. 52% only of the label claim of active drug content and the average weight of each capsule was found to be 0. 4657 gms. , and, similarly, the label claim of Ampicillin per each capsule of Ampicillin was 500 mg. , but on analysis it was found to contain 232. 63 mg. , of Ampicillin i. e. , 46. 52% only of the label claim of active drug content and the average weight of each capsule was found to be 0. 6657 gms. , and, similarly, the label claim of Ampicillin per each capsule of Ampicillin was 500 mg. , but on analysis it was found to contain 232. 63 mg. , of Ampicillin i. e. , 46. 52% only of the label claim of active drug content and the average weight of each capsule was found to be 0. 6657 gms. It can, therefore, be inferred that both the drugs were substituted in part by another substance and thus are deemed to be spurious within the meaning of Section 17-B (d) of the Act. When the drugs in question do not conform to the weight as mentioned on their labels, it too can be inferred that they are substituted by some other substance. Therefore, the drugs are misbranded , as defined under Section 17-B (d) of the Act. This aspect of the case is prima facie established. Perhaps that is the reason why the learned counsel for the petitioners did not advance any arguments on this point. ( 10 ) THE next aspect now to be considered is the assertion made by the learned counsel for the petitioners that the 2nd respondent-A-2 is not the manufacturer of the drugs in question. ( 11 ) IT is not in dispute that the Drug Inspector lifted the drugs in question from the licensed wholesale firm-Sai International situated at Door No. 11-35-13/a, Kotamrajuvari Street, Vijayawada. At this juncture, it is apposite to extract Section 27 (c) of the Act. "27. Penalty for manufacturer, sale, etc. , of drugs in contravention of this Chapter:- Whoever, 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,- (a) x x x x x x x x x x x x x x x (b) x x x x x x x x x x x x x x x (c) any drug deemed to be spurious under Section 17-B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than five thousand rupees. " ( 12 ) IT is clear from a look at the above Section that any person who, 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 any spurious drug shall be liable for punishment. If A-2 is manufacturer of the drugs in question, then it can be proceeded against. I will, therefore, now proceed to examine whether A-2 is manufacturer of the drugs in question. ( 13 ) M/s. Sai International purchased the drugs in question Amoxycillin and Ampicillin-from A-2. The batch number, manufacturing date, expiry date and license number of the two drugs respectively are HPOO8, May 199 6/04/1987, 110/kr/ap/95/f/g (L), and HPO1, July, 199 6/06/1998, 110/kr/ap/96/f/g (L ). No where it is stated in the complaint that A-2 is the dealer or distibutor of the said two drugs. The two drugs were purchased by Athakuri Venkateshwara Rao, Proprietor of Sai International, vide invoice Nos. 006/96-97, dated 7-7-1996 and 003/96-97, dated 28-5-1996 from A-2 firm. A-2 firm obtained a license in Form No. 26-A to manufacture for sale of drugs being drugs specified in Schedule C, C (1) excluding those specified in Schedule X to the Drugs and Cosmetic Rules, 1945, on the premises situated at door No. 54-16-3/8, CEC Colony, Vijayawada, C/o Rossvel Pharmaceuticals. The contention of the learned counsel for the petitioners is that Rossvel Pharmaceuticals is the manufacture of the drugs in question and, therefore, the petitioners being wholesale distributors only cannot be prosecuted. That argument is totally devoid of any merit. The reason is that A-2 obtained license to manufacture the drugs specified in the license, which include the drugs in question. Therefore the allegations in the complaint, coupled with the license obtained by A-2 to manufacture for sale of the drugs in question, prima facie establish that A-2, and not Rossvel Pharmaceuticals as contended by the learned counsel for the petitioners, is the manufacturer of the drugs in question and A-1 is the Proprietor of A-2 firm. ( 14 ) IN view of the above discussion, there are absolutely no grounds to quash the proceedings. Hence the petition is dismissed. Any observations made in this order are only for the purpose of deciding this petition and shall not weigh or affect the mind of the trial Court while proceeding with and deciding the case. ( 14 ) IN view of the above discussion, there are absolutely no grounds to quash the proceedings. Hence the petition is dismissed. Any observations made in this order are only for the purpose of deciding this petition and shall not weigh or affect the mind of the trial Court while proceeding with and deciding the case. Petition dismissed.