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2019 DIGILAW 1195 (KAR)

Sandeep Varalwar v. State of Karnataka

2019-06-11

JOHN MICHAEL CUNHA

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JUDGMENT : John Michael Cunha, J. 1. Petitioners are accused Nos. 2 and 3 in C.C. No. 103/2006 registered for the offences punishable under Sections 18(a) (i) and 27 (d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act’ for brevity). 2. Heard learned counsel for the petitioners and learned Additional State Public Prosecutor appearing for the respondent. 3. The Drug Inspector, Bengaluru Circle-I lodged a private complaint under Section 200 of Cr.P.C. against seven accused persons alleging violation of Section 18(a)(i) of the Drugs and Cosmetics Act and Rules punishable under Section 27(d) of the said Act. According to the complainant, accused No. 1 is a Private Limited Company, which runs under the name and style M/s. V.V.S. Pharmaceuticals and Chemicals (P) Ltd. situated at D-125 and 128, Phase-III, IDA, Jeedimelta, Hyderabad; accused Nos. 2 and 3 are the Directors; accused No. 4 is the Managing Director; accused Nos. 5 and 6 are the Manufacturing Chemists and accused No. 7 is Analytical Chemist of accused No. 1-Company. On 24.02.2013, Sri Shankar Jyothi, Drugs Inspector, Bengaluru Circle-I, Bengaluru, (for short ‘Drugs Inspector’) drew sample of drugs from M/s. Durga Sales Corporation and sent one portion for test analysis to the Government Analyst, Drugs Testing Laboratory, Bengaluru under Form No. 18 dated 25.02.2003. On 17.4.2003, a test report was received in Form No. 13 declaring that the drugs examined by the Analysts were "Not of Standard Quality." The Drugs Inspector addressed a letter to the Director, Drugs Control Administration, Vengal Rao Nagar, Hyderabad since the manufacturer of the referred drugs was located in their jurisdiction to take action as per the provisions under law. On 21.04.2003, Drugs Inspector sent a notice under Section 18A and 18B of the Act to M/s. Durga Sales Corporation No. 16/1, 3rd Cross, Ground Floor, Malleswaram, Bengaluru-03 (which is the new address since the firm was shifted). On 23.04.2003, Drugs Inspector sent a letter along with the copy of the test report in Form No. 13 dated 10.4.2003 to M/s. V.V.S. Pharmaceuticals and Chemicals (P) Ltd. No. D-125 & 128, Phase-III, IDA, Jeedimelta, Hyderabad. On 24.04.2003, Drugs Inspector submitted his report to the Drugs Controller for the State of Karnataka for information and necessary action. On 3.5.2003, Drugs Inspector received a letter dated 23.04.2003 from Sri. Ramadas K. Shet, proprietor of M/s. Durga Sales Corporation, No. 1, 6/1, 3rd Cross, Malleswaram, Bengaluru. On 24.04.2003, Drugs Inspector submitted his report to the Drugs Controller for the State of Karnataka for information and necessary action. On 3.5.2003, Drugs Inspector received a letter dated 23.04.2003 from Sri. Ramadas K. Shet, proprietor of M/s. Durga Sales Corporation, No. 1, 6/1, 3rd Cross, Malleswaram, Bengaluru. In the said letter, he disclosed that the drug Lupical-500 tablets, B. No. 171022V was purchased from M/s. Hira Drug House, No. 211-214, Shankar Complex, Sultanpet Cross, Bengaluru under invoice No. 73455 dated 6.2.2003 with its copies. On 20.05.2003, Drugs Inspector received a letter addressed to the Drugs Controller for the State of Karnataka bearing No. VVS/035/2003-04, dated 10.05.2003 from Sri. Sandeep Varalwar, Executive Director of accused No. 1 requesting to re-analyze the batch in question along with the copy of the certificate of analysis report related to Lupical-500 tablets, B. No. 27023V instead of B. No. 17102V and a copy of the same was marked to the Director, Drugs Control Administration, Andhra Pradesh for information. On 7.6.2003, Drugs Inspector served a notice under Section 25(2) and Section 23(4)(iii) of the Drugs and Cosmetics Act, 1940 and Rules thereunder to M/s. Hira Drug House, Sultapet Cross, Bengaluru along with sealed 3rd portion of the drug and original test report in Form No. 13 dated 10.04.2003 under acknowledgment in person. On 7.7.2003, Drugs Inspector addressed a letter to accused No. 1 with a request to state whether it had manufactured the said drug which was "Not of Standard Quality." Accused No. 1 failed to reply to the letter dated 7.7.2003 and also did not challenge the test report of the Lupical tablets, B. No. 17102V. On 8.9.2005, the Drugs Controller for the State of Karnataka directed the complainant to complete the investigation with a view to prosecute the said manufacturer and the copy of the same was sent to the Assistant Drugs Controller, Bengaluru Circle-I, Bengaluru, for information and necessary action. 4. Learned counsel for the petitioners has assailed the action initiated against the petitioners on the ground that the respondent has violated Sections 23(4), 25(3) and 25(4) of the Act. He contended that as per Section 23(4) of the Act, one portion of the sample drawn for the purpose of analysis was required to be given to the manufacturer. But the same was not given to the manufacturer, hence, there is violation of Section 23(4) of the Act. He contended that as per Section 23(4) of the Act, one portion of the sample drawn for the purpose of analysis was required to be given to the manufacturer. But the same was not given to the manufacturer, hence, there is violation of Section 23(4) of the Act. Further, as required under Section 25(3) of the Act, seized samples were not sent to the Court and the request of the petitioners to get the samples re-tested was also turned down. Hence, the proceedings initiated against the petitioners being opposed to the mandatory requirements of the Act are liable to be quashed. Further, he submitted that the complaint was filed after expiry of the drugs in question and on that score also the case of the prosecution is not legally tenable. In support of his argument, he has placed reliance on the decision of the Hon'ble Supreme Court in Laborate Pharmaceuticals India Ltd. and Others vs. State of Tamil Nadu, (2018) 15 SCC 93 . 5. The Additional State Public Prosecutor appearing for respondent has argued in support of the impugned action contending that the respondent has not violated the provisions of the Act either at the time of drawing samples or in the process of getting them tested. There is no violation of the provisions of Sections 23(2), 25(3) and 25(4) of the Act as contended by the learned counsel. Thus, he prayed for dismissal of the petition. 6. I have considered the submissions and have carefully perused the records. 7. The procedures followed by the respondent in drawing the samples and getting them analyzed have been extracted in the previous part of the order which disclose that the respondent has scrupulously followed the requirements of Sections 23 and 25 of the Act. Apparently for this reason, accused No. 1 - the Company has not challenged regularity of the procedure conducted by the respondent. Apparently for this reason, accused No. 1 - the Company has not challenged regularity of the procedure conducted by the respondent. Even otherwise, as per Section 23(4) of the Act, the Inspector drawing the sample was required to divide the same into four parts and to restore one portion of the sample so divided to the person from whom it was taken and retain the remainder and deal with the same as provided under sub-section 4, which reads as under: "25(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused; cause the sample of the drug [or cosmetic] produced before the Magistrate under sub-section (4) of section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of the Director of the Central Drugs Laboratory the result thereof and such report shall be conclusive evidence of the facts stated therein." 8. Undisputedly, the sample was drawn from the retailer. The records disclose that the portion thereof was given to the retailer. The petitioners herein are the Directors of accused No. 1 - Company. It is not the case of the petitioners that accused No. 1 - company being the manufacturer was not given the portion of samples as required under Section 23 of the Act. There is no requirement under law that the Directors of the company are also required to be given the portion of the samples. There is nothing in the section to indicate that all the directors on role are required to be supplied with the portion of samples. 9. In the decision referred by the learned counsel for the petitioners, it has been observed that as per the provisions of Sections 23(4) and 25 of the Act, one portion is required to be given to the retailer, one portion is required to be sent to Government Analyst and one portion to the Court and last one to the manufacturer whose name, particulars etc. is disclosed under Section 18A of the Act. is disclosed under Section 18A of the Act. In the instant case, names and details of the manufacturers are disclosed under Section 18 of the Act and therefore, the petitioners cannot make out a grouse on that score. The next contention urged by the petitioners is also liable to be rejected for the reason that the complaint contains clear averments to the effect that the petitioners are responsible for the management of the day-to-day business in their capacity as Directors of accused No. 1 - Company as on the date of alleged offences. Insofar as the contentions urged by the petitioners that the drugs in question had reached the expiry date as on the date of registration of the complaint, has no bearing on the charges alleged against the petitioners. Undisputedly, the shop of the retailer was inspected and samples were drawn on 24.02.2003. The analysis report has been obtained on 17.04.2003. The drugs expired only in September 2004. It is not the case of the petitioners that expired drugs were seized or examined by the analysts. In the absence of any such ground, the said contention is also liable to be rejected. 10. Consequently, there being no merit in the petition, the same is liable to be dismissed. Accordingly, the petition is dismissed. Lower Court Records be sent back to the trial Court forthwith.