SIDHARTHA MITRA Vs. KULDIP SINGH

JUDGEMENT

(1.) This petition has been filed for quashing of a complaint, Annexure P-1 under the provisions of the Drugs and Cosmetics Act, 1940 (for short the Act) filed by the re- spondent herein. In the complaint, it is alleged that on 21.10.1992, when the complainant, Medical Officer in Civil Hospital, Jagadhri was on round, he saw a bottle of Futodrip-10 to be administered to an indoor patient Mukhtiar Singh who was suffering from kidney failure. The said bottle was full of fungus which was "apparently obvious from the bottle and can be seen with nacked eyes." The complainant stopped its administration to the patient and returned the bottle to the chemist. The complainant purchased four bottles from the chemist one of which was same which was earlier returned by the attendant and seal of which was broken and another bottle was full of fungus "obvious to the naked eyes". It was further alleged that accused committed offence by selling the drug which was adulterated. Preliminary evidence comprised of statement of respondent, CW-1, Smt. Sunita Sharma, CW-2, who was licensee of the chemist shop and CW-3 Roshan Lal, attendant of the patient. The petitioners were summoned on the basis of preliminary evidence comprising of the above witnesses and the report of the Government Analyst, Ex. PX to the following effect:-

(2.) In support of this petition for quashing, learned Counsel for the petitioners submitted that even if all the allegations in the complaint are accepted as correct, no case was made out for proceeding against the manufacturer at the initial stage and the manufacturer should have been summoned only for a manufacturing defect and initial liability was of the chemist. He referred to the provisions of Section 19 (2)(b) of the Act and the judgment reported in Narinder Kumar Mangilal Dani v. State of Maharashtra. Paras 2, 3 and 6. He submitted that a warning was notified on the bottle to the effect that the solution was not to be used if container was found leaking or if solution was not clear. He also referred to extract from "Principles and Practice of Intravenous Therapy" published by Little, Brown and Company, Boston Toronto, to the effect that prior to use, containers of fluid should be thoroughly examined to detect any hole as any accidental puncture may occur which may provide a point of entry for microogranisms. He also referred to Pharmaceutical Dosage forms Parenteral Medications by Pharmaceutical Dosageforms, Parenteral Medications, published by Marcel Dekker, INC, New York and Basel to the effect that contamination may occur due to hairlines cracks invisible to the naked eye which may exist in a container. He also referred to receipt Annex- ure P-6 mentioning that sale to the chemist was made in good condition.

(3.) Learned Counsel for the complainant submitted that these conditions could not be appreciated in a petition for quashing in view of law laid down in Joginder Pal Vohrav, State of Haryana.