JOGINDER PAL VOHRA Vs. STATE OF HARYANA

JUDGEMENT

(1.) Shri Joginder Pal and five others, fully described in the head note of this petition, have filed the present petition under Section 482, Cr.P.C. against the repsondent, i.e., the State of Haryana through District Drugs Inspector, Kurukshetra, for the quashment of the complaint (Annexure P 1) filed by the respondent against the petitioners under the Drugs and Cosmetics Act, 1940, for the violation of Sections 16, 17C, 17-A(f), 17-B(d) and 18(a) (i) of the said Act, and consequential proceedings.

(2.) The State of Haryana through the District Drugs Inspector, Kurukshetra, filed a complaint under the Drugs and Cosmetics Act, 1940 (for short 'the Act') read with the rules made thereunder against Shri Joginder Pal Vohra, Smt. Indu Prabha, Shri Avinash Chander, Shri Ravinder Vij, being partners of M/s. Navax Pharmaceuticals, 30 Industrial Area Phase-I, Panchkula; Shri O. P. Verma, manufacturing Chemist of M/s. Navax Pharmaceuticals, and the firm M/s. Navax Pharmaceuticals, in the Court of Chief Judicial Magistrate, Kurukshetra, on the allegations that petitioner No. 6 is a firm dealing in manufacturing for sale of drugs at 30 Industrial Area, Phase-I, Panchkula, having Drug Manufacturing Licence on form 28 bearing No. 285-B(H). Petitioners Nos. 1 to 4 are all its partners and petitioner No. 5 is its manufacturing chemist. The record of constitution of the firm and original licences is with the office of State Drugs Controller, Haryana, Chandigarh. On 30-3-1993 Shri Ashok Bhambha, District Drugs Inspector, Kurukshetra, inspected the shop of M/s. Janta Medical Hall, Railway Road, Kurukshetra, where Shri Ashwinder Singh, Partner of the firm, was present. During the inspection following drugs were purchased for analysis and testing by Mr. Ashok Bhambha, District Drugs Inspector, Kurukshetra :-(a) 12 x 5 ml. Gentamicine Eye/Ear Drops B.P. BATCH No. G. 20, expiry date June 1994, Manufactured by M/s. Navax Pharmaceuticals, 30 Industrial Area, Phase No. 1, Panchkula.(b) 5 x 30 ml. Analgin Injection NFI B. No. P 978, expiry date August 1994; manufactured by M/s. Quality Pharmaceuticals Pvt. Ltd., Tung Bula Majitha Road, Amritsar.The above samples of drugs were purchased for analysis and test vide credit memo No. 1214 dated 30-3-1993 for Rs. 58/- only and the payment of the same was made vide Bank Draft No. B.N./B-80/4-7800 dated 18-10-1993. Four portions of each of the samples were prepared as per details on Form 17, in the presence of Shri Ashvinder Singh, partner of M/s Janta Medical Hall, Kurukshetra. After completing the formalities on 31st March, 1993 one sealed portion of each of the samples mentioned in the complaint, was sent to the Government Analyst, Haryana, Chandigarh, for test and analysis with separate form No. 18 for each of the samples by registered parcel. On 15th June, 1993 the test report was received by the Drugs Inspector, declaring that sample No. AKB 7/93 was not of standard quality because Assay of Gentamicine was found to be less than the prescribed I.P. limits i.e., 51%. On 17th June, 1993 an original copy of the test report No. 2706 dated 14th June, 1993 was sent to M/s. Janta Medical Hall, Railway Road, Kurukshetra, by Shri Ashok Bhambha along with notice No. D.I. 93/373 dated 17th June, 1993. On 2nd July, 1993 the reply of the said firm was received along with photostat copy of Bill No. 6187 dated 30-3-1993 of M/s. Shiva Medical Hall, Ambala Cantt. On 7th September, 1993 a notice under Section 81A of the Act was sent to M/s. Shiva Medical Hall, Ambala Cantt. along with original test report No. 2706 dated 14th June, 1993 and copy of Bill No. 6187 dated 30-3-1993. A reminder was also issued to the firm on 1st October, 1993. On 8th October, 1993 the firm M/s. Shiva Medical Hall, Ambala Cantt. was visited for inspection by the complainant along with Shri Satpal Verma and the statement of Shri Parshottam Lal Goyal, partner of the firm, was recorded. On 7th October, 1993 reply was received from M/s. Shiva Medical Hall along with the attested copy of bill No. 2175 dated 15-3-1993 of M/s. Navax Pharmaceuticals, 30 Industrial Area, Phase I, Panchkula (petitioner No. 6), which was the manufacturer of the drug. After taking some record from the possession of the dealer and the distributor, notice under Sections 18 and 18-B of the Act was sent the petitioner No. 6 along with copy of bill No. 6187 dated 30-3-1993 and reply was received from petitioner No. 6 through partner Shri Ravinder Vij (petitioner No. 4) vide letter dated 1-4-1993 under Section 25 of the Act, and showed its intention to get the sample analysed from Central Drugs Laboratory, Calcutta. The date of expiry of the sample was June, 1994. The State Drugs Controller, Haryana, vide letter dated 4th March, 1994 directed the complainant to launch the complaint in the Court of Law against the petitioners after obtaining the necessary documents pertaining to the sample. It is the case of the complainant that Gentamicine Eye/Ear drop B. P. is a drug within the meaning of Section 3(b) of the Act. The sample of the drug was not of standard quality under Section 16 of the Act and it was misbranded and adulterated under Sections 17, 17-A and 17-B of the said Act. It is also alleged by the complainant that the petitioners had manufactured for sale and sold a drug which was not of standard quality and their act is punishable under S. 27 of the Act. In para No.21 of the complaint it has been alleged that petitioner No. 4 Shri Ravinder Vij on behalf of the firm and on behalf of other partners and manufacturing chemist has challenged the test report of Govt. Analyst, Haryana, Chandigarh, and wanted to adduce evidence in contravention of the said report. Finally it was prayed that necessary action be taken against the petitioners. This became the basis for the petitioners to challenge the complaint on the following grounds :-(i) That the proper parties have not been arrayed as accused. According to the petitioners the sample was not taken from the possession of the petitioners. It was taken from the possession of M/s. Janta Medical Hall (Dealer), and it is not mentioned in the entire complaint that the sample was contained in a sealed packing. It also does not mention that the sample was stored in a cool place though the petitioner-manufacturing company specifically directed on the outer carton that the drug has to be stored in a cool place precisely for the reason that the drug has its own temperature which gets chemical reaction which changes its chemical properties due to the variation of the temperature. Nowhere it has been mentioned in the complaint that the drug was found untampered by the distributor or by the dealer. In the absence of a categoric averment in the complaint about the above facts, presumption is that the sample was opened and tampered with. The complainant had not arrayed the dealer and the distributor as an accused. In these circumstances the petitioners could not be prosecuted.(ii) the second ground for attack of the complaint is that the drug in question was manufactured as per British Pharmacopiea whereas in para No. 6 of the complaint the allegation is that the drug was sub-standard because assay (strength) of the drug was found less than the prescribed India Pharmacopiea limits. Since the pharmacopiea limits of I.P. and B. P. are different and the petitioners are manufacturing on B. P. method, therefore, the prosecution cannot be launched.(iii) It has also been pleaded by way of third ground that as per the report of the Central Drugs Laboratory the assay was required to be 3000 units (0.3% W/V), i.e., weight/volume, is found to be 100% in the drug, namely, gentamicine which belies the report of the State Laboratory, which had opined that the assay was 0.15% W/V.(iv) Fourthly it has been pleaded by the petitioners that the report of the State Laboratory reveals very interesting results. According to this report, the drug is free from any living germs or micro-organisms. If that being so, the second allegation that the sample contained suspended matter comprising of white-particles and that too seen on a microscopical test by the Central Laboratory is no reason for launching the prosecution.(v) The next ground of attack is that the complaint has been filed in a mechanical manner by invoking the provisions of Sections 16, 17 and 18 of the Act. Moreover the complaint deserves to be quashed on the ground that petitioners Nos. 1 to 3 are not responsible for the business of the firm though they have been arrayed as accused. In para No. 21 of the complaint it has been pointed out by the complainant that the business was being looked after the petitioner No. 4 only. It has also been pleaded that the maximum punishment for the violation of the various provisions of the Act is three years. 3 years have already elapsed since April, 1994 when the complaint was filed and the trial has not started. Reliance has been placed on a famous judgment reported as Common Cause A Registered Society through its Director v. Union of India, (1996) 4 JT (SC) 701 : (1996 Cri LJ 2380).

(3.) With the above main averments, the petitioners have prayed for the quashment of the complaint and the subsequent proceedings.