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2024 DIGILAW 1899 (GUJ)

Jigar Amrutlal Patel v. State Of Gujarat

2024-10-11

SANDEEP N.BHATT

body2024
JUDGMENT : 1. The present petition is preferred under Article 226 of the Constitution of India and Section 451 of the Criminal Procedure Code, 1973, to quash and set aside the order dated 19.01.2023 passed in Criminal Misc. Application by the Chief Judicial Magistrate, Palanpur, District Banaskatha for release of Muddamal/Goods under the provisions of Section 451 of the Code of Criminal Procedure, 1973, and further to quash and set aside the order dated 16.02.2023 passed by the Sessions Court, Palanpur, Banaskatha in Criminal Revision No.07 of 2023. 2. Brief facts of the case are as under: 2.1 The petitioner has a partnership firm named Gurukrupa Industries which has 3 partners in total which legally produce chemicals through all kinds of chemical processes and even have factory license and wholesale License No.20B 21B for sale of medicine, wherein drugs are stored and sold in bulk and is engaged in the production of raw materials only and do not manufacture or sell any final product or medicine. The petitioner's firm procures this starting material from another company and stores it at a licensed premise at Chandisar and further such material is brought to the production unit as required and raw materials are manufactured and is in agreement with Brischem Sciences Pvt. Ltd from 01.06.2022. That, the petitioner's firm being under the agreement which supply with the Progesterone crude to Brischem Sciences Pvt. Ltd under the agreement and only to it. That, on 12.09.2022 Respondent No.2 seized the goods and issued Form-16 On 12.09.2022, Respondent No.2 seized the goods and issued Form-16 under The Drug and Cosmetic Act, 1940 being 16 light wooden color drum labeled as 4s Progesterone (Appro. Weight 480 Kg with drum), 6 light wooden color drum labeled as Progesterone IP (Appro. Weight 85 with drum), 3 Blue Color drum labeled as 4s Progesterone IP Batch No. PAS-FP/1/22/033 Manufactured by Birschem Sciences Pvt. Ltd (Appro. Weight 82 with drum) amounting to a sum of Rs. 80 Lakhs. Thereafter, the Respondent No.2 preferred application before Chief Judicial Magistrate, Palanpur seeking custody of the Muddamal seized dated 13.09.2022 and the Court below was pleased to pass the order within it vide order dated 13.09.2022. Thereafter, again preferred another application before Court below. Weight 82 with drum) amounting to a sum of Rs. 80 Lakhs. Thereafter, the Respondent No.2 preferred application before Chief Judicial Magistrate, Palanpur seeking custody of the Muddamal seized dated 13.09.2022 and the Court below was pleased to pass the order within it vide order dated 13.09.2022. Thereafter, again preferred another application before Court below. Thereafter, the petitioner herein approached and preferred application before the Chief Judical Magistrate, Palanpur for release of Muddamal under provisions of Section 451 of Code of Criminal Procedure, 1973 dated 22.09.2022 which the Court Below was pleased to reject vide order dated 19.01.2023. Meanwhile, the Government Analyst Report bearing No.9911/2022 was served on petitioner wherein the report confirms the sample conforms to the standards laid down for Progesterone in IP 2018. Thereafter, the petitioner being dissatisfied by the order of the Chief Judicial Magistrate preferred Criminal Revision Application No.7 of 2023 dated 31.1.2023 which the Court Below was rejected vide order dated 16.02.2023. Under this circumstance the muddamal/goods came to be seized. Hence, this petition has been preferred. 3. Heard Mr. Akash A. Singh, learned advocate for the petitioner and Ms. Divyangna Jhala, learned APP for the respondent – State. 4.1 Mr. Akash A. Singh, learned advocate for the petitioner has submitted that the petitioner is nowhere involved in the commission of offence and the seizure of muddamal/goods has no nexus with any commission of any offence in whatsoever manner. Therefore, the present petition requires consideration and the said muddamal/goods may be released. It is also submitted that as the petitioner is engaged in the business of manufacturing the intermediary and not the final and finished product the petitioner being prosecuted and due to which petitioner has to go through grave loss even otherwise it is contrary to legislative intent behind the Durgs and Cosmetic Act, 1940. Therefore, the present petition requires consideration and the said muddamal/goods may be released. It is also submitted that when the drug inspectors avail the sample after due with the provision of the enactment it is not necessary for him under section 22(1) C and prepare Form-16 and seize the goods. Moreover, upon the analysis of the same it was concluded that samples are of standard quality and not of any criteria laid in the enactment pertaining to any provision given in the enactment section 18(A)(4), 18(B), 18(C) and section 27 of the Drug and Cosmetic Act, 1940. Moreover, upon the analysis of the same it was concluded that samples are of standard quality and not of any criteria laid in the enactment pertaining to any provision given in the enactment section 18(A)(4), 18(B), 18(C) and section 27 of the Drug and Cosmetic Act, 1940. Therefore, the present petition requires consideration and the said muddamal/goods may be released. It is also submitted that it is not the case of the prosecution even fail to substantiate that the seized goods were for the sale or stocked for sale just mere possession of the does not make the act penetrative or punishable under the enactment. Therefore, the present petition requires consideration and the said muddamal/goods may be released. It is also submitted that the petitioner has brought to the notice of both the Learned court below that the utilization Progesterone IP for another intermediate non medicated product and also not falling within the preview of drug or cosmetic but both the court below failed to appreciate the same. Therefore, the present petition requires and consideration muddamal/goods may be released. It is also submitted that the muddamal/goods is lying in the custody andthe same is unutilized and by passage of time, the quality condition of the same are getting deteriorated due to its shell life. It is submitted that in view of the backlog of the cases and there being no complaint lodged till date, the Ld. Magistrate will not be able to complete the trial and hearing within some time bound-schedule and usually in such type of cases period of four to five years passes easily and for that period of time if the muddamal/goods are kept in such a manner, the condition of the muddamal/goods will get deteriorated and would render useless and assuming for a moment that even after conclusion of the trial, if it may be confiscated, then also it would not fetch its original value. In such situation petitioner humbly requests this Hon'ble Court to handover custody of the muddamal/goods to the petitioner in the interest of justice. 4.2 It is also submitted that the petitioner is ready and willing to furnish the bank security for the amount as deemed to be proper by this Court. Hence, in the said circumstances the Petitioner is entitled for the release of the said muddamal/goods in the interest of justice. 4.2 It is also submitted that the petitioner is ready and willing to furnish the bank security for the amount as deemed to be proper by this Court. Hence, in the said circumstances the Petitioner is entitled for the release of the said muddamal/goods in the interest of justice. He has relied upon the decision of the Hon’ble Apex Court in the case of Mohd. Shabbir vs. State of Maharashtra reported in 1997 (0) Supreme(SC) 41, more particularly, paragraph 7 is relevant and the decision of the Madrash High Court in the case of Tidal Laboratories Pvt. Ltd. Rep. By its Director Chandra Ram, Mumbai and Others vs. State of Tamil Nadu Rep. By R. Kalai Selvi, Chennai reported in 2013 0 Supreme (Mad) 2909, more particularly, paragraph 11, 14 and 15 are relevant. 4.3 It is also submitted that since the petitioner is permitted to store the medicines, as per the terms of licence, the action of the authority to seize the good as Muddamal is not proper and, therefore, both the courts below have committed error in rejecting the application for releasing of Muddamal. 5. Ms. Divyangna Jhala, learned APP for the respondent – State has submitted that both the courts below have given the cogent and convincing reasons. Moreover, looking to the peculiar facts and circumstances of the present matter, the application before the trial court itself is not maintainable, as this is not a case of only drugs, but the cosmetics also, includes opponent No.1 has power to seize the said cosmetic, even if the Inspector has got the opinion, wherein it is found that the sample is sub-slandered, and it is harmful to the health of the public. Hence, for the larger interest of the public, it is not expedient to allow such application and release such Muddamal. She has submitted that both the courts below have considered this aspect, and submissions made at the bar, and also considered various provisions of the Drugs and Cosmetics Acts and Rules also in considering the application and, therefore, she has prayed to dismissed this petition, as no interference is required to be called for as both the courts below have concurrently found against the present petitioner. 6.1 I have considered the rival submissions made at the bar. I have considered the relevant provisions of the Drugs and Cosmetics act and Rules. 6.1 I have considered the rival submissions made at the bar. I have considered the relevant provisions of the Drugs and Cosmetics act and Rules. 6.2.1 It is fruitful to refer the provisions of Section 451 of the Criminal Procedure Code, as under: “Section 451 in The Code of Criminal Procedure, 1973:- 451. Order for custody and disposal of property pending trial in certain cases. - When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation. Explanation. - For the purposes of this section, "property" includes - (a) property of any kind or document which is produced before the Court or which is in its custody; (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.” 6.2.2 It is also fruitful to refer the provisions of Sections 18(a)(iv), 18(b), 18(c), 19, 27 of the Drugs and Cosmetics Act, 1940, as under: “(iv) any drug which by means of any statement design or device accompanying it or by any other means, purports or claims [to prevent, cure or mitigate] any such disease or ailment, or to have any such other effect as may be prescribed; (b) [sell or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic] which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder; (c) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic], except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter: Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis : Provided further that the 10[Central Government] may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the 11[manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale] or distribution of any drug or class of drugs not being of standard quality. 19. Pleas.—(1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Chapter to prove merely that the accused was ignorant of the nature, sub stance or quality of the drug [or cosmetic] in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale. (2) [For the purposes of section 18 a drug shall not be deemed to be misbranded or [adulterated or spurious] or to be below standard quality nor shall a cosmetic be deemed to be misbranded or to be below standard quality] only by reason of the fact that— (a) there has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or preparation of the drug [or cosmetic] as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the drug [or cosmetic] or to conceal its inferior quality or other defects; or * * * * * (b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it: provided that this clause shall not apply in relation to any sale or distribution of the drug [or cosmetic] occurring after the vendor or distributor became aware of such intermixture. [(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, distributor 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. [27. Penalty for manufacture, 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) any drug deemed to be adulterated under section 17A or spurious under section 17B and which] when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grevious hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860) solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be [punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more]: [Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause: Provided further that where the use of the adulterated or, spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realised from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulterated or spurious drugs referred to in this clause. Explanation.—For the purposes of the second proviso, the expression “relative” means— (i) spouse of the deceased person; or (ii) a minor legitimate son, and unmarried legitimate daughter and a widowed mother; or (iii) parent of the minor victim; or (iv) if wholly dependent on the earnings of the deceased person at the time of his death, a son or a daughter who has attained the age of eighteen years; or (v) any person, if wholly or in part, dependent on the earnings of the deceased person at the time of his death,— (a) the parent; or (b) a minor brother or an unmarried sister; or (c) a widowed daughter-in-law; or (d) a widowed sister; or (e) a minor child of a pre-deceased son; or (f) a minor child of a pre-deceased daughter where no parent of the child is alive; or (g) the paternal grandparent if no parent of the member is alive;] (b) any drug— (i) deemed to be adulterated under section 17A but not being a drug referred to in clause (a), or (ii) without a valid licence as required under clause (c) of section 18, 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 one lakh rupees or three times the value of the drugs confiscated, whichever is more]: 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 three years and of fine of less than one lakh rupees]; (c) any drug deemed to be spurious under section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall [not less than seven years but which may extend to imprisonment for life and with fine which shall not be three lakh rupees or three times the value of the drugs confiscated, whichever is more]: 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 seven years but not less than three years and of fine of less than one lakh rupees]; (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.” 6.2.3 It is also fruitful to refer the decision of the Hon’ble Apex Court relied on by learned advocate for the petitioner in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in 2003 (1) GLH 307 , the relevant paragraphs are as under: “19. However, these powers are to be exercised by concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 CrPC are properly and promptly exercised and articles are not kept for long time at the police station, in any case for not more than 15 days to 1 month. This object shall also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such article are implemented properly....” 6.3 After perusing the materials available on the record, and considering the above, it transpires that there is licence available with the petitioner. From the scheme of the Act, it transpires that if any accused is punished for the contravention of the Drugs and Cosmetics Act, then the goods are required to be confiscated. Therefore, the goods, which are seized, are being analyzed and analysis report is also produced and prima facie, it appears that it is a drug. Therefore, the contention raised by learned advocate for the petitioner that till date, no complaint is registered and drug does not fall in the category of any medicinal use is not accepted. The contention raised by learned advocate for the petitioner at this stage that whether licence is necessary or not, the goods being manufactured, stored, sold or confiscated is raw material or anything else, all theses aspects cannot be considered at this stage unless the proper trial is proceeded, and can be considered at the appropriate stage during the pendency of process of adjudication by the authorities/competent court. I have also perused the findings given by the Revisional Court as well as the trial court. Relevant portion of order dated 16.02.2023 of the Revisional Court is para 9 to 12, as under: “9. I have also perused the findings given by the Revisional Court as well as the trial court. Relevant portion of order dated 16.02.2023 of the Revisional Court is para 9 to 12, as under: “9. At the outset, it is worth to mention that, considering the provisions of Section 23(5)(b) of Drugs and Cosmetics Act, 1940, after getting permission from the Chief Judicial Magistrate, opponent No.1 has got custody of goods order on 13.09.2022, and the samples are also taken in the presence of the Panch witnesses under the prescribed procedure and sampling procedure being done by the Food Inspector and followed the procedure prescribed under Form No.17 and 17-A and by submitting Form No.16, then permission being sought from learned Chief Judicial Magistrate and samples being sent to the Government Analyst, Vadodara for the analysis. After getting report from the Analyst, it came to know that, the seized goods being Progesterone elements which is Female Hormone and used for Hormone Replacement Therapy and Female Infertility and under the Cosmetics Act, Rule-96 manner of labelling is also prescribed and it is further opined that, under section 3(b) seized goods fall in the category of medicine and without any license or authorization the said drug being manufactured, purchased, stored and sale hence, in contravention of Section 18(A) (vi), 18(B), 18 (C) of Drugs and Cosmetics Act, 1940 by considering the said opinion learned Chief Judicial Magistrate come to conclusion rejection of an application filed by applicant. 10. Further, considering the aforesaid fact and provision of Section 31 of Drugs and Cosmetics Act, it appears that, prima facie, offence is made out, but offence yet to be registered and which is at preliminary stage and during the said administrative procedure the confiscation of goods being done. The provision of Section 31 of Drugs and Cosmetics Act are as under: "31. The provision of Section 31 of Drugs and Cosmetics Act are as under: "31. Confiscation.- ((1)] Where any person has been convicted under this Chapter for contravening any such provision of this Chapter or any rule made thereunder as may be specified by rule made in this behalf, the stock of the drug [or cosmetic] in respect of which the contravention has been made shall be liable to confiscation [and if such contravention is in respect of— (i) manufacture of any drug deemed to be misbranded under section 17, adulterated under section 17A or spurious under section 17B; or (ii) manufacture for sale, or for distribution, sale, or stocking, or exhibiting or offering for sale,] or distribution of any drug without a valid licence as required under clause (c) of section 18, any implements machinery used in such manufacture, ?? machinery used in such manufacture, sale or distribution and any receptacles packages or coverings in which such drug is contained and the animals, vehicles, vessels or other conveyances used in carrying such drug shall also be liable to confiscation.] [(2) Without prejudice to the provisions contained in sub-section (1), where the Court is satisfied, on the application of an Inspector or otherwise and after such inquiry as may be necessary that the drug or cosmetic is not of standard quality [or is a [misbranded, adulterated] or spurious drug or misbranded or spurious cosmetic,] such drug or, as the case may be, such cosmetic shall be liable to confiscation.] [31A. Application of provisions to Government departments.--The provisions of this Chapter except those contained in section 31 shall apply in relation to the manufacture, sale or distribution of drugs by any department of Government as they apply in relation to the manufacture, sale or distribution of drugs by any other person.] 11. Considering the aforesaid fact, it prima facie, appears that, if any accused is punished for contravention of the mandatory provision of Drugs and Cosmetics Act, the goods is required to be confiscated. Herein, goods being analyzed and analysis report is produced and prima facie, it appears that it is a drug. Thus, the learned trial judge has not committed any error in coming to conclusion that the application filed by applicant is not maintainable for getting back the goods seized by opponent No.1. 12. Learned Advocate Mr. Herein, goods being analyzed and analysis report is produced and prima facie, it appears that it is a drug. Thus, the learned trial judge has not committed any error in coming to conclusion that the application filed by applicant is not maintainable for getting back the goods seized by opponent No.1. 12. Learned Advocate Mr. M. K. Patel appearing for the applicant has vehemently argued that, till date no complaint is registered and drug does not fall in the category of any medicinal use. But, it is needless to say that, these all facts are required to be considered at the time of trial as license is necessary or not, the goods being manufactured, storage or sale or confiscated is raw material or else, these all aspects does not fall in the purview of this Revisional Court. In the revisional jurisdiction, this court has a very limited power. This court has to only examine the correctness, legality and propriety of the order passed by learned trial court. Herein, learned trial court has rightly appreciated the fact and applied the law. It is humble opinion of this court that, learned trial court has not committed any error in coming to the conclusion.” 6.4 I found that the reasons given by both the courts below are in consonance with law. There is no dispute in the ratio of the decisions of the Hon’ble Apex Court which is cited by learned advocate for the petitioner. 6.5.1 It is fruitful to refer the decision of the Hon’ble Apex Court in the case of Mohd. Shabbir (supra), more particularly, paragraph 7 is relevant, as under: “7. In this case, there is unchallengable evidence of the complainant that after recovering tablets from the possession of the appellant, he had served a registered notice to him to disclose the source from which he had acquired the tablets and despite this notice the appellant refused to disclose the source. Thus the act of the appellant clearly falls within the ambit of S. 28 of the Act. The trial court further did not impose any separate sentence under this section. But that will not be a bar to imposing a proper sentence by this Court provided the sentence does not exceed the sentence already imposed under S. 27 (a) (i). When the High Court was moved for enhancing the sentence, it was moved only under 5. The trial court further did not impose any separate sentence under this section. But that will not be a bar to imposing a proper sentence by this Court provided the sentence does not exceed the sentence already imposed under S. 27 (a) (i). When the High Court was moved for enhancing the sentence, it was moved only under 5. 27 (a) (ii) of the Act because under that section the minimum sentence to be given was one year. As the High Court was not satisfied with the reasons given by the trial court for giving sentence less than one year, it appears to have enhanced the sentence to one year. In view of our finding that 5. 27 (a) (i) have no application to this case, the charge on this count against the appellant must fail and the appellant must be acquitted of this charge. So far as S. 28 is concerned the maximum punishment which can be imposed is only one year. The appellant is a young man and comes from a respectable family and had made a very candid confession before the Court in pleading guilty. In these circumstances, we therefore do not think that any deterrent sentence is called for. We would. therefore, uphold the conviction of the appellant under S. 28 but give the sentence till the rising of the Court which he has already undergone. The appellant will now be released forthwith. The sentence of a fine of Rs. 200 will be maintained under S. 28 and not under S. 27 (a) (i). The fine if not paid shall be paid within a month from today. Accordingly, the appeal is allowed in part. Appeal partly allowed.” 6.5.2 It is also fruitful to refer the decision of the Madrash High Court in the case of Tidal Laboratories Pvt. Ltd. Rep. By its Director Chandra Ram, Mumbai and Others (supra), paragraph 11, 14 and 15 are relevant. “11. Though these submissions made by the learned senior counsel for the petitioners are based on the factual aspects, which have to be normally established at the time of adducing evidence, in the instant case, I find that, except the seizure of the samples found in Form 16, no other document such as, sale register, invoices, etc.were seized by the Drugs Inspector to show that these drugs were kept only for the purpose of sale. Now, it is the main submission of the learned senior counsel for the petitioner that mere possession simpliciter of the samples would not attract section 18(c) of the Act. In support of his contention, he also relied upon the judgment reported in 1979 MLJ Crl. 448 (supra) wherein the Hon'ble Supreme Court dealt with the interpretation of penal provision of section 27 of the Act as under: "On an interpretation of section 27, it seems to us that the arguments of Mr. Singh is well founded and must prevail. The words used in section 27, namely, "manufacture for sale", sells, have a comma after each clause but there is no comma after the clause "stocks or exhibits for sale". Thus the section postulate three separate categories of cases and no other. (1) manufacture for sale; (2) actual sale; (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, section 27 of the Act would not be attracted. In the present case there is no evidence to show that the appellant had either got these tablets for sale or was selling them or had stocked them for sale. Mr. Khanna appearing for the State, however, contended that the word "stock" used in section is wide enough to include the possession of a person with the tablets and where such a person is in the possession of tablets of a very huge quantity, a presumption should be drawn that they were meant for sale or for distribution. In our opinion, the contention is wholly untenable and must be rejected. The interpretation sought to be placed by Shri Khanna does not flow from a true and proper interpretation of section 27. We, therefore, hold that before a person can be liable for prosecution or conviction under section 27 (a) (i) (ii) read with section 18 (c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. We, therefore, hold that before a person can be liable for prosecution or conviction under section 27 (a) (i) (ii) read with section 18 (c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of section 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant". Therefore, the dictum laid down in the above judgment would show that unless all the ingredients of the category of section 27 of the Act are satisfied, the penal provision under section 27 for the offence under section 18(c) will not be attracted, wherein in the instant case, there is no evidence to show that the petitioners kept the drugs marked "physician sample not for sale" only for the purpose of sale, because no document such as sale register, invoices, etc.were seized. Therefore, I am of th opinion that mere possession simpliciter of drugs would not amount to 'offence' under any provisions of the Act. 14. A reading of the said judgments would show that under section 34 of the Act, where an offence under the Act had been committed by a company, the persons who were responsible for the conduct of the business of the company as well as the company itself shall be deemed to be guilty. In this case, there is no averment to the effect that these persons are responsible and in charge for the conduct of the business of the company and hence, merely they are the Directors, it does not mean that automatically they are liable to be prosecuted. There should be a clear averment as to how the Directors are responsible and in charge for the conduct of the business of the company when they are all residing at Mumbai where the alleged offence said to have been committed at Chennai. There should be a clear averment as to how the Directors are responsible and in charge for the conduct of the business of the company when they are all residing at Mumbai where the alleged offence said to have been committed at Chennai. In this regard, one more judgment of a Full Bench of Hon'ble Supreme Court reported in 2005 STPL (DC) 878 SC in the case of S.M.S. PHARMACEUTICALS LTD., .vs. NEETA BHALLA AND ANOTHER, wherein it has been held as follows: "....Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a Company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision. The liability arises from being in charge of and responsible for conduct of business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company......The conclusion is inevitable that the liability arises on account of conduct, act or omission on the part of a person and not merely on account of holding an office or a position in a company. Therefore, in order to bring a case within Section 141 of the Act the complaint must disclose the necessary facts which make a person liable". Therefore, I am of the opinion that in the absence of specific allegation as to how they are responsible for the conduct of the business of the company, the complaint itself is not legally sustainable. 15. Yet another submission is that under section 18-A, the petitioners have failed to disclose the address and other particulars of the persons from whom they acquired the drugs and cosmetics; but on a perusal of the reply sent by the petitioners to the show cause notice I find that the petitioners have already furnished the particulars. In any event, this complaint has to fail for the reason that there is no allegation to the effect that the Directors are responsible and in charge of the day-to-day affairs of the company. In any event, this complaint has to fail for the reason that there is no allegation to the effect that the Directors are responsible and in charge of the day-to-day affairs of the company. On the whole, I am of the opinion that the complaint itself is not legally sustainable and hence, the same is liable to be quashed. For the reasons stated above, the criminal original petition is allowed and the proceedings against the petitioners in C.C.No.141 of 2012 pending on the file of IV Metropolitan Magistrate Court, Saidapet, Chennai, are quashed. Consequently, connected M.Ps. are closed.” 6.6 Considering the above decisions, there is no dispute in the ratio of the above decisions, but the fact remains that this Court is considering the application under Section 451 of the Cr.P.C. This is not the stage where all the aspects can be considered in favour of the petitioner, and the Court can certainly, by using its discretion, refuse the exercise the power under Section 451 of the Cr.P.C., more particularly, considering the facts and circumstances of the present case, the prima facie case is made out to consider the matter on merits during the course of adjudication. Therefore, availability of material is required and therefore, it cannot be released at this stage. Hence, I found no reason to interfere in the impugned orders by exercising the powers under Article 226 of the Constitution of India, which is otherwise also required to be exercised with appropriate care considering the facts of each case. Hence, no reason is found in the concurrent findings of both the Courts below. 7. Accordingly, the present petition is dismissed with no order as to costs. 8. Rule stands discharged.