CADILA HEALTH CARE LTD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By this writ petition, petitioners have challenged the complaint, criminal proceedings and the order of issuance of process passed by the Chief Judicial Magistrate taking cognizance of the offences against any and/or all of the accused in criminal case No. 468/2002 pending before the Chief Judicial Magistrate, Bundi. Petitioners have further prayed that the provisions of Section 34, 34(1) and 34(2) of the Drugs and Cosmetics Act, 1940 (in short 'the Act of 1940') be declared to be unconstitutional and ultra vires Articles 14, 19 and 21 of the Constitution of India.

(2.) At the outset, counsel for the petitioners submitted that they do not press challenge to the vires of Section 34, 34(1) and 34(2) of the Act of 1940 and the said issue may be left open. We have recorded statement of the counsel for the petitioner and granted liberty to challenge the vires of the aforesaid provisions at appropriate stage. Therefore, we are proceeding on the basis of the provisions of the Act of 1940 as is

(3.) Briefly stated, relevant facts of the case are that petitioner No. 1 is a public limited company engaged in the manufacture, marketing, selling, distributing and research of pharmaceutical products. Petitioners Nos. 2 and 3 (accused No. 3 and 4) are Directors of the Company whereas petitioners No. 4 to 8 (accused Nos. 5, 6, 7 and 8) were power of attorney holders of the company at the relevant time. The dispute leading to filing of the complaint and the present writ petition relates to Dexona Injection 2 ml Batch No. 8358 indicating that "the sample is of standard quality.........", the manufacturing date of which was 09/98 and expiry date being 02/2000. On 27-8-1998, M/s. Sriram Medicals, Bundi, accused No. 13, purchased Dexona Inj. 2 ml from M/s. Sind Medical Stores (Agencies). On 31-12-1998, the Drug Inspector, Bundi carried out inspection of the shop of M/s. Sriram Medical, Bundi (accused No. 13 in the complaint) in presence of its partner Kunj Behari Billya (accused No. 14 in the complaint) and purchased sample of Injection Dexona 2 ml Batch No. 8358. The sample was divided into four parts and sealed. Kunj Behari Billya, accused No. 14, partner of M/s. Sriram Medical was given one sample. On 31-12- 1998, the Drug Inspector sent one sample to the Government Analyst, Central Indian Pharmacopoeia Laboratory, Ghaziabad by registered post. On 20-1 -99 the sample was received by the Government Analyst and the report of which was sent on 24-6-1999 with the remarks "The sample does not conform to the claim in respect of assay", as defined in the Act and rules therein. On 9-7-99, a copy of the report and portion of the sample was given by the Drug Inspector to Kunj Behari Billya (accused No. 14) partner of M/s. Sriram Medicals (accused No. 13) who informed that the drug was purchased from M/s. Sind Medical Stores (Agencies), Kota (accused No. 11). M/s. Sind Medical Stores (Agencies) (accused No 11) was also supplied one portion of the sample and report of Government Analyst, under Section 18-A of the Act of 1940 but no portion of the sample was supplied to the manufacturer company or Director or the power of attorney holders of the manufacturer company.