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2020 DIGILAW 464 (AP)

Swati Medical Agencies v. State of Andhra Pradesh

2020-07-20

VENKATA JYOTHIRMAI PRATAPA

body2020
ORDER : 1. The instant petition under Section 482 of Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] has been filed by the Petitioners/Accused Nos. 5 to 10, seeking quashment of the proceedings in P.R.C. No. 45 of 2017 on the file of the Court of Additional Judicial Magistrate of First Class, Markapur registered for the contravention of Sections 18(a)(i) r/w Sections 17B(c), 17B(d) and Section 16(1)(a) punishable under Sections 27(c) and 27 (d) of the Drugs and Cosmetics Act, 1940 [for short “Drugs Act”]. 2. The facts of the case, in brief, are as follows: (a) On 11.12.2015, on receipt of credible information about manufacturing and supply of spurious drugs, the Complainant i.e. the Drug Inspector inspected A.9-M/s. Krupa Medical and Fancy Stores and lifted the samples of two drugs viz. Acecef AZ, B. No. AAK0824 and Osheflox-200, B. No. AAH0836, which were thereafter found spurious. Petitioner/Accused No. 10 disclosed that the drugs were procured from Petitioner/A.7-M/s. Swati Medical Corporation. (b) On examination of Petitioner/A.7, it was found that Petitioners/Accused No. 5 and 6 supplied the said drugs to them. Petitioners/Accused No. 5 and 6 obtained the same from Accused Nos. 3 and 4, who purchased the same from Accused Nos. 1 and 2. The letters which were sent to Accused Nos. 1 and 2 were returned unserved. It is further stated that the team of Drug Inspectors visited Jaipur and the Police arrested Accused No. 2, who is the Proprietor of A.1-Company for manufacturing the spurious drugs. (c) Accused No. 2 confessed that there was no drug licence and accordingly a complaint has been filed under Section 32 of Drugs Act for the contravention of above Sections. Grounds Sought for Quashment: 3. When the matter was at the stage of committal vide PRC 45 of 2017, the present petition has been filed seeking quashment of the case against the Petitioners/Accused Nos. 5 to 10 on the following grounds: (a) There is no material on record to show the intention of the Petitioners to hold spurious drugs. (b) Petitioners purchased, distributed and sold the drugs under invoices and bills and as such, the complaint cannot be lodged against them. (c) Petitioners have no knowledge that the drugs were spurious and they had no direct contact with Accused Nos. 1 and 2. (b) Petitioners purchased, distributed and sold the drugs under invoices and bills and as such, the complaint cannot be lodged against them. (c) Petitioners have no knowledge that the drugs were spurious and they had no direct contact with Accused Nos. 1 and 2. (d) Petitioners are bona fide purchasers and hence, the ingredients of the alleged Sections of Drugs Act do not attract against them. Arguments advanced at the Bar: 4. Heard Ms. Boppudi Alekhya, learned counsel representing Ms. S. Pranathi, learned counsel for the Petitioners and Ms. D. Prasanna Lakshmi, learned Assistant Public Prosecutor for State/Respondent. 5. Learned counsel for the Petitioners/Accused Nos. 5 to 10 would submit that the dealers who procured the medicines from the licenced manufacturers, are not liable for punishment under Sections 16, 17 and 18 of the Drugs Act. Learned counsel would further submit that the objections which were submitted by the Company were neither considered nor answered as per Section 25 of Drugs Act. It is submitted that the dealers are not liable for punishment for manufacturing of the spurious drugs and the dealers do not fall under the category of manufacturers though the manufacturing company is turned to be a bogus one. In support of her contention, learned counsel for the Petitioners has placed reliance on the judgment of the Composite High Court of A.P. on Perumalla Subba Rao v. State of Andhra Pradesh, 2008 SCC Online A.P. 1105. 6. Per contra, learned Assistant Public Prosecutor would submit that there are specific allegations against the Petitioners and the genuineness of the said allegations have to be decided during trial. Hence, prayed to dismiss the petition. In support of her contention, learned Assistant Public Prosecutor has placed reliance on the judgment of the High Court of Jammu and Kashmir in M/s. Jain Medical Store and Another v. Drugs Inspector, Udhampur and others, Cr. M.C. No. 55 of 2013, M.P. No.70 of 2013, dated 27.07.2018, High Court of Jammu and Kashmir. Point for Determination 7. Having heard the submissions of the learned counsel representing both the parties, now the point that would emerge for determination is: Whether there are any justifiable grounds for quashment of proceedings against the Petitioners/Accused Nos. 5 to 10 in P.R.C. No. 45 of 2017 on the file of the Court of Additional Judicial Magistrate of First Class, Markapur? Determination by the Court 8. 5 to 10 in P.R.C. No. 45 of 2017 on the file of the Court of Additional Judicial Magistrate of First Class, Markapur? Determination by the Court 8. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary: (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A court while sitting in Section 482 jurisdiction is not functioning as a court of appeal or a court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence. 9. For ready reference it is apposite to extract Sections 18(a)(i), 17B(c), 17B(d) and 16(1)(a) of Drugs Act, which read 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. 17B. Spurious drugs - For the purposes of this Chapter, a drug shall be deemed to be spurious: (c) if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist. (d) if it has been substituted wholly or in part by another drug or substance. 16. Standards of quality: (1) For the purposes of this Chapter, the expression “standard quality” means: (a) in relation to a drug, that the drug complies with the standard set out in [the Second Schedule].” 10. A bare perusal of the complaint would reveal that, the subject drugs were manufactured and distributed by the Accused No. 1-firm without having any valid licence. A bare perusal of the complaint would reveal that, the subject drugs were manufactured and distributed by the Accused No. 1-firm without having any valid licence. Though the learned counsel for the Petitioners contended that the Petitioners have purchased the subject drugs from a licensed manufacturer/dealer under bills and invoices, they cannot automatically be relieved from the proceedings. If the Petitioners are of the view that they did not contravene the provisions under Drugs Act, it is open to them to establish the same during the course of trial. When a person who is dealing with the drugs as distributor or dealer which is found to be spurious or sub-standard in terms of Section 18 of Drugs Act, prima facie, he is guilty, but in order to prove that he is innocent, he must establish the ingredients provided under Section 19 of the Act. If the Petitioners are able to establish that their case comes within the ambit of Section 19(3) of Drugs Act, only then they can succeed. 11. Perusal of Section 19(3) of the Drugs Act shows that it protects the persons, other than the manufacturer or his distributing agents for contravention of Section 18 of the Drugs Act. The essential ingredients required to be established under this provision to avail protection are: (i) that he acquired the drug from the duly authorized person; (ii) he did not know and could not with reasonable diligence have ascertained that the drug in any way contravened any provision of the Act and (iii) that the drug while in his custody was properly stored and remained in the same state, as it was when he acquired it. 12. As per Section 19 (3) (c) of the Drugs Act, Petitioners/Accused Nos. 5 to 10 being distributors and retailers have to show due diligence while procuring the said drugs to ensure quality of the drugs. In the present case, the drugs which were found spurious, were manufactured by a fictitious manufacturer, whose name was not heard of earlier and the address of the said Company is also false. The defences under Section 19 of Drugs Act which are not available to the manufacturer, would be available to the Petitioners/Accused Nos. In the present case, the drugs which were found spurious, were manufactured by a fictitious manufacturer, whose name was not heard of earlier and the address of the said Company is also false. The defences under Section 19 of Drugs Act which are not available to the manufacturer, would be available to the Petitioners/Accused Nos. 5 to 10 being the dealers and distributors, but that would also always be a question of fact to be decided during the trial and the same cannot be taken at the initial stage. 13. The decision relied on by the learned counsel for the Petitioners in Perumalla Subba Rao (referred supra), is not helpful to the case on hand as it was held that an allegation of sale of a misbranded or sub-standard drug does not constitute an offence under Section 18(a). The judgment relied on by the learned Assistant Public Prosecutor is applicable to the present case. In M/s. Jain Medical Store and Another (referred supra), a learned Single Judge opined that the question of being entitled or not to the defences available under Section 19(3) of the Drugs Act, is a matter to be established by cogent means during trial. 14. Since the contentions raised by the learned counsel for the Petitioners are touching the facts of the case, this Court does not intend to give any opinion on such facts and the trial Court shall independently examine the evidence placed before it, for the purpose of coming to a just conclusion. As this Court cannot conduct a mini trial while deciding a petition filed under Section 482 Cr.P.C. the petition deserves dismissal. 15. In the result, the Criminal Petition is dismissed. 16. Pending miscellaneous petitions, if any, shall stand closed.