RECKIT BENCKISER INDIA LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) IS exhibiting, stocking, selling or distributing 'Dettol', a product of M/s. Reckitt Benckiser (India) Ltd., the first petitioner herein without a license issued under the Drugs and Cosmetics Act, 1940 (for short, "the Act") punishable under Section 27(b)(ii) of the said Act? The answer depends on whether Dettol is a 'Disinfectant' as contended by petitioners.

(2.) SHORT facts necessary for a decision of the question are: Second respondent, the Drug Inspector, Kozhikode searched premises of the second petitioner/first accused, a partnership firm on 18/08/2006 and found Dettol stocked and exhibited for sale in large quantity. The third petitioner/second accused who is the Managing Partner of the said firm could not produce any license issued under the Act for stocking, exhibiting and sale of Dettol. On the premise that Dettol required a license for its stocking, exhibiting and sale, the Drug Inspector filed complaints against accused 1 to 3. It is alleged in the complaints that the first petitioner/third accused manufactured and sold Dettol to petitioners 2 and 3/ accused 1 and 2 (hereinafter referred as accused) who had no license to deal with the same and accused 1 and 2 stocked and exhibited for sale the said product without license under the Act. It is alleged that the accused violated the prohibition contained in Section 18(c) of the Act and thereby committed offence punishable under Section 27(b)(ii) of the said Act. Learned Judicial First Class Magistrate-I, Kozhikode took cognizance of the said offence, filed CC No. 491 of 2009 and 717 of 2009 and issued process to the accused. The complaints, orders taking cognizance and proceedings in the said cases are challenged by the accused in these proceedings under Section 482 of the Code of Criminal Procedure (for short, "the Code"). Learned counsel for accused 1 to 3 contended that Dettol being a 'Disinfectant' does not require a license under the Act since it came within the exempted category under item No. 12 of Schedule K of the Drugs and Cosmetics Rules, 1945 (for short, "the Rules"). Learned counsel has invited my attention to an unreported decision of the Division Bench of this Court in M/s. Reckitt Benckiser (India) Ltd. v. Commissioner(OT Appeal No. 6 of 20061) and another unreported decision of the Andhra Pradesh High Court in Vijayakumar and Others v. Drug Inspector (Crl. Petition No. 3400 of 2005) in support of his contention that Dettol is a 'Disinfectant'. Learned Public Prosecutor would contend that Dettol does not have the characteristics of a 'Disinfectant', it is only an 'Antiseptic' though, it may be used as a 'Disinfectant' also, item No.12 of Schedule K referred above only exempted 'Insecticides' and 'Disinfectants' and hence Dettol is not exempted by the Act and Rules from the necessity to obtain license for its stocking, exhibition and sale. Learned Public Prosecutor has invited my attention to the Complete Drug Reference, 32nd Edition, Page 1097 as to the meaning of 'Disinfectant' and 'Antiseptic'.

(3.) NOW the question is whether 'Dettol' is a 'Disinfectant' and hence exempted from Section 18 of the Act as contended by the accused. Part XI of the Rules deals with exemptions. Rule 123 falling in the said part says: