S B GANGULY Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application under Section 482 of the Code of Criminal Procedure the petitioner has prayed for quashing the entire criminal proceeding including the order taking cognizance dated 9.4.90 for an offence under Section 27 of the Drugs and Cosmetics Act, 1940.

(2.) The facts of the case lie in a narrow compass : One Dr. S.K. Ghosh, a Medical Practioner, purchased Wymox (Ammoxycillin) mixture from one Sinha Pharmacy and sold the same to one of his patients. The said patient returned the phial on the ground that bottle of the mixture contained one insect. On 30.10.89 Dr. Ghosh informed the matter to the Managing Director of the Company and on receipt of the same the representative of the Company met the doctor from time to time to enquire into the matter and to get the bottle examined but Dr. Ghosh did not oblige him by handing over the bottle. After some correspondences, it appears, when Dr. Ghosh could not gently relief at the Company send, the complained to the Prime Minister of India on 4.3.90 with a copy of the same to the Minister of Health and Family Welfare, Govt. of India. That letter of complaint was sent to Dr. Prem Kumar Gupta, Durgs Controller (India) who directed Dr. S. C. Srivastava, Deputy Drugs Controller (India), East Zone to depute a Drugs Inspector to file a petition of complaint. Accordingly, the Drugs Inspector, Central Drugs Standard Control Organization (East Zone), Calcutta filed a complaint in the Court of the Chief Judicial Magistrate Ranchi adding the Company, its Chairman and the Director (Sales) as accused. Along with the complaint, copies of letter of Dr. Ghosh to the Prime Minister, Managing Director of the Company, the petitioner as well as reply of the petitioner to Dr. Ghosh's letter and the bill dated 23.10.89 were annexed. The bottles of mixture said to have been purchased by Dr. Ghosh from Sinha Pharmacy was produced by him in the Court and from a perusal of records and said bottles the learned Chief Judicial Magistrate was, prima facie, satisfied that a case under Section 27 of the Drugs and Cosmetics Act, 1940 (the Act) is made out against the accused person and thus cognizance under Section 27 of the Act was taken.

(3.) Mr. Bajaj, learned Counsel for the petitioner has contended that the allegation made in the complaint petition does not make out any case of criminal liability of the petitioner inasmuch as the same does not constitute any offence. According to him, for prosecuting a person under Section 27 of the Act, the allegation must be specific that the medicine was adulterated and . without there being any report from the Government analyst, the complaint petition could not have been entertained by the Magistrate. The complainant has not stated any where that on being directed by the Deputy Drugs Controller to file a petition of complaint, -he personally got the bottle examined by the analyst. Merely because a direction was given by the higher authorities, without verifying the truthfulness or otherwise, the same complaint was filed. Referring to various correspondences annexed with the complaint petition Mr. Bajaj has urged that Mr. Ghosh, in order to settle his score with the Company and its officers, maliciously filed the complaint without even mentioning as to how the petitioner being the Director of Sales, was responsible in manufacturing the said medicine or to fill up the said bottle which allegedly contained some insects. When the said bottle was alleged to have been purchased from Sinha Pharmacy, learned Counsel continues, Dr. Ghosh should have made allegation against the said Pharmacy making him an accused and this having not been done, the very intention of Dr. Ghosh is apparent.