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2020 DIGILAW 1335 (PNJ)

Col. H. s. Chehal v. State Of Punjab

2020-06-29

FATEH DEEP SINGH

body2020
JUDGMENT Fateh Deep Singh, J. (Oral) - The above detailed two petitions filed under Section 482 Cr.P.C. for exercising inherent powers of this Court, seeking in both quashment of criminal complaint bearing No. 0000048/2014 dated 22.07.2014 (Annexure P-1) under Rule 65(17), Rule 110 and condition No. 4 of para 5 of Schedule 'K' read with Rule 123 of the Drugs and Cosmetics Rules, 1945 (hereinafter to be referred as 'the Rules') and Section 18(a)(vi) of the Drugs and Cosmetics Act, 1940 (hereinafter to be referred as the Act") alongwith summoning order dated 22.07.2014 Annexure P-2 and all consequential proceedings arising therefrom and in the light of consanguinity of facts and law points are being disposed off together for the sake of brevity. 2. Heard Mr. R.S. Cheema, Sr. Advocate for the petitioner, Mr. C.L. Pawar, Sr. DAG, Punjab and Mr. Ravindra Jain, Advocate for the complainant and perused the records. 3. The undisputed facts are that one Kanwarjit Singh filed on 11.04.12 a complaint to the Director, Health Punjab enumerating that his mother, who was admitted in Fortis Hospital Mohali (a Unit Fortis Health-care Limited) now (Fortis Health-care India Limited, in short 'the hospital 1 ) on 26.03.2012 for acute abdominal pain and during the course of treatment on 06.04.2012 around 07.30 p.m., he was attending to his mother in the hospital by her bed side when a nurse of the hospital came and with a view to administer her an injection named as "ROLES (RABEPRAZOLE) I. V. for 20 Mg. (RAN REXCEL) placed the same at the bed side. Out of curiosity being son Kanwarjit Singh had a curious look at the injection vial and observed that it was bearing expiry date as April 2011. Alarmed over this insolence and apathy of the hospital, the son made a complaint. The drug inspector inspected the pharmacy store of the hospital and obtained certain documents. After due process of law of holding inquiry, the inquiry team on 03.07.2012 arrived at a finding that drug to be administered to the patient had expired one year prior to the date of issue and that is how the present complaint was filed. 4. The petitioner Colonel H.S. Chehal being over all in-charge of the conduct of the business of the pharmacy andthe hospital and Monika Thakur being staff nurse in-charge of the ward besides others were summoned as accused. 5. 4. The petitioner Colonel H.S. Chehal being over all in-charge of the conduct of the business of the pharmacy andthe hospital and Monika Thakur being staff nurse in-charge of the ward besides others were summoned as accused. 5. It is not put to question that petitioner Colonel H.S. Chehal was appointed as General Manager (Administration) in April 2008 of the hospital and it was in January 2010, he was promoted as F.D., and thereafter in January 2011 rose to the post of Zonal Director and thereafter in January 2013 as Regional Director (North). 6. In the light of the submissions of the learned State counsel on the date of this discovery of expired medicine being administered, i.e. 06.04.2012, the petitioner was administrating the hospital and so its pharmacy. More so, it is by no means displaced and it is well illustrative from the own documents of the hospital that Monika Thakur petitioner was staff nurse at that point of time. 7. It is the own stand of the petitioner Colonal H.S. Chehal in his response to the notice issued by the drug inspector and thereafter in his pleadings that he was holding power of attorney of the company running the hospital, which is well illustrative from his affidavit filed on 31.10.2012 after this incident in the office of drug inspector Mohali and, therefore, by all means accepts that he was very much responsible for the business running and conduct of the hospital and therefore to the mind of this Court was vicariously liable for any such intentional remiss by the staff of the hospital. It is subsequent thereto a guise has sought to raised by Mr. Cheema, on behalf of the petitioner that the petitioner Colonal H.S. Chehal is not personally responsible and that he was not in the job on the day of the occurrence when the own affidavit dated 31.10.2012 of the petitioner substantiates this fact in no certain terms. Furthermore, the document R-2 sent by the petitioner side, which is addressed to Drug Inspector Mohali has categorically stated as follows:- 4. The persons responsible for the conduct of the business of the firm were Cot. H.S. Chehai. 5. Seema (Pharmacist), Dinesh Chander (Pharmacist- (GDA), Monika Thakur (Staff Nurse). Duty roster is attached along with this reply. and therefore leaves no scope to put to doubt as to the responsibility of the petitioners/accused in this criminal conduct. The persons responsible for the conduct of the business of the firm were Cot. H.S. Chehai. 5. Seema (Pharmacist), Dinesh Chander (Pharmacist- (GDA), Monika Thakur (Staff Nurse). Duty roster is attached along with this reply. and therefore leaves no scope to put to doubt as to the responsibility of the petitioners/accused in this criminal conduct. The documents placed on the records, which have been extracted out of official records show by way of Annexure R-3 that Ms. Ripu Daman Kaur was not qualified person for running drug store and so is illustrative form Annexures R-3/A, R-5, R-5/A, R/6, R/7 to R/9 and shows the change of name of the hospital at various points of time and therefore authorizing by way of licence issued by the present complainant/drug inspector Mohali. Annexures R-8 and R-9 show that on 04.02.2013, petitioner Colonel H.S. Chehal was the authorized signatory of the accused/hospital. The own document of the hospital Annexure R/14 shows that the expired drug at the relevant time was in stocks and issued for administration to the patient admitted in the hospital by its drug store. Thus, from this all, it is in no certain terms substantiated that at the relevant time when the occurrence took place the drug had expired and having been issued by the store of the hospital and was in the process of being administered to the patient when this serious remiss was discovered by the attendant. 8. Thus, from this all, it is in no certain terms substantiated that at the relevant time when the occurrence took place the drug had expired and having been issued by the store of the hospital and was in the process of being administered to the patient when this serious remiss was discovered by the attendant. 8. Section 18 by way of clause (vi) of the Act provides that any drug or cosmetic in contravention of any provisions of this chapter or any rule made thereunder empowers any person either himself or by any person on his behalf manufacture or sale in such drug and furthermore Section 27 (d) of the Act provides that 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) and further Rule 65 by way of sub-rule 17 of the Rules, which is reproduced as under:- "No drug shall be sold or stocked by the licensee after the date of expiration of potency recorded on its container, label or wrapper, or in violation of any statement or direction recorded on such container, label or wrapper: provided that any such drugs in respect of which the licensee has taken steps with the manufacturer or his representative for the withdrawal, reimbursement or disposal of the same, may be stocked after the date of expiration of potency pending such withdrawal, reimbursement or disposal, as the case may be, subject to the condition that the same shall be stored separately from the trade stocks ( and all such drugs shall be kept in packages or cartons, the top of which shall display prominently, the words" Not for sale". Further Rule 110 of the Rules illustrates as follows:-"No person shall sell, or exhibit for sale any substance specified in Schedule C after the date recorded on the container, label or wrapper as the date up to which the substance may be expected to retain a potency not less than, or not to acquire a toxicity greater than that required or permitted by the prescribed test as the case may be". whereas Schedule K of the Rules includes drugs supply by a registered medical practitioner to his own patient and for the use of individual patient even where the hospital has not been keeping an open shop and selling across the counter such drugs is covered under chapter (iv) of the Act, which reads as under:- "5. Drugs supplied by a registered medical practitioner to his own patient or any drug specified in Schedule C supplied by a registered medical practitioner at the request of another such practitioner if it is specially prepared with reference to the condition and for the use of an individual patient provided the registered medical practitioner is not (a) keeping an open shop or (b) selling across the counter or (c) engaged in the importation, manufacture, distribution or sale of drugs in India to a degree which render him liable to the provisions of Chapter IV of the Act and the rules thereunder." Section 34 of the Act which is reproduced as below to lay emphasis:- (1), where an offence under this Act has been committed by a company, every person who at the time of offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly, and plain reading of the same ensures that whenever an offence under this Act has been committed by a company every person who at the time of offence committed was in charge of, was responsible for the conduct of the business as well as company shall be deemed to be guilty of the offence. 9. Reverting back to the present case, admittedly, both the petitioners at the relevant time when this offence was committed were found to be in-charge of their respective assignments in the conduct of business of the hospital and, therefore, cannot by any means wriggle out of the same. Any such plea that is sought to be raised by the petitioners as to their innocence is a matter of evidence to be duly appreciated by the Court concerned at the trial and cannot be taken note of at this juncture during the exercise of powers under Section 482 Cr.P.C. 10. This Court seeks supports from State of Haryana and others Vs. Ch. This Court seeks supports from State of Haryana and others Vs. Ch. Bhajan Lal and others, 1991(1) R.C.R. (Criminal) 383 and paragragph 107 of the judgement reads as under:- "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 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 First Information Report 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 a Magistrate within the purview of Section 155(2) of the Code. 3. Whether the uncontroverted allegations made in the FIR 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 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. 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 proceedings is instituted) to the institution and continuance of the proceedings 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. 11. In the light of foregoing discussion, no case is made out by this Court to show any indulgence as even otherwise provisions of Section 482 Cr.P.C. are to be sparingly used to meet the ends of justice and in the present scenario no such eventuality arises. The petitions being hopelessly without any merits are hereby dismissed.