C. Somasundaram vs State Inspector of Police, Prohibition Wing, Tenkasi and Another

Ramalingam, J.—In all the aforesaid Crl.M.Ps. the petitioner is the same. Crl.M.P. 2336 of 1986 is to quash the proceedings relating to C.C. 126 of 1986 pending on the file of Special Judicial First Class Magistrate, Tirunelveli, pertaining to Crime No. 1003 of 1985, on the file of Inspector of Police, Prohibition Wing, Tenkasi. The other two Crl.M.Ps. namely 5811 of 1986 and 5871 of 1986 are to quash the proceedings relating to the petitioner herein who is the fourth accused in C.C. 1232 of 1985 and 1231 of 1985 respectively pending on the file of the V Metropolitan Magistrate, Egmore, Madras pertaining to Crime No. 4713 of 1985 on the file of Inspector of Police, Pulianthope, Madras.

All these proceedings have been initiated under the following circumstances: The petitioner, Somasundaram who is a dealer in Ayurvedic preparations is running a business tinder the name and style of Jayasakthi Ayurvedic Vaidhyasalai at Kudiyiruppu, Courtallam, Tenkasi, with necessary licence issued under the provisions of the Drugs and Cosmetics Act, 1940 and also the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956.

On 22.9.1985 at about 5:30 p.m. one Sankaralingam of Vyasarpadi saw one Elumalai being taken in a rickshaw by one Munuswami. Elumalai was found to be in unconscious state. He learnt from the rickshaw driver Munuswami, that Elumalai consumed Madhukashayam from the shop belonging to one Ganesan and Arjunan who are the first and second accused in C.C. 1232 and of 1231 of 1986 on the file of the V. Metropolitan Magistrate, Egmore. Sankaralingam also went to the residence of Elumalai and advised the inmates of his house to give him rest. At about 8:30 p.m. on the very same day, Sankaralingam heard one Dass belonging to the said locality died as a result of drinking Madhukashayam from the shop belonging to the first and second accused. After seeing the dead body of Dass at his residence, Sankaralingam went to the house of Elumalai to find out as to what had happened to him. Since the condition of Elumalai was found to be precarious they sought the advice of one Dr. Dhanapal and on his advice admitted Elumalai in Stanley Hospital. Later Elumalai died at the hospital. He also saw one Ekambaram lying dead as a result of drinking Madhukashayam from the shop belonging to the first and second accused. In the same way, one Joseph was also alleged to have died as a result of drinking Madhukashayam from the shop belonging to first and second accused. Another person by name Kanniappan who is alleged to have consumed Madhukashayam from the shop of first and second accused, somehow survived. All these in formations were given by Sankaralingam on 23rd September, 1985 at about 7 a.m. before the Vyasarpadi Police Station. On the complaint given by the said Sakaralingam a case has been registered under S. 304, I.P.C. Thereafter, on information, the Police raided the shop of the petitioner and that of one Ramakrishnan at Tenkasi, the third accused in both the proceedings pending before the V Metropolitan Magistrate, Egmore at 7 p.m. on 23-9-1985 and the sample bottles were alleged to have been seized from the shop of the petitioner and that of Ramakrishnan. A case has been registered in Crime. No. 1003 of 1985 on the file of Inspector of Police, Prohibition Wing, Tenkasi, against Ramakrishnan and the petitioners. The samples taken were sent for chemical analysis and the report shows that the samples taken from the shop of third accused Ramakrishnan do not contain any chloral hydrate. On that ground the proceeding against the third accused is alleged to have been dropped in Crime No. 1003 of 1985 on the file of Inspector of Police, Prohibition Wing, Tenkasi. However, charges have been filed against the petitioner for an offence for violation of R.4 (1) A and 4(1) B read with rule 3(1) of the Chloral Hydrate Rules, 1989 in C.C. 126 of 1986 on the file of the Special Judicial First Class Magistrate, Tirunelveli. Similarly in C.C. 1232 of 1986 which is pending on the file of the V Metropolitan Magistrate, Egmore, charges have been filed against the petitioner under the provisions of S. 4(1-A) (i) and (ii) of the Tamil Nadu Prohibition Act, 1937 and Rule, 5 of the Tamil Nadu Chloral Hydrate Rules 1984 read with S. 11 of the Tamil Nadu Prohibition Act, 1937. In C.C. 1231 of 1986 also charges have been framed against the petitioner under S. 4(1-A) of the Tamil Nadu Prohibition Act and Rule 5 of the Tamil Nadu Chloral Hydrate Rules, 1984 read with S. 1 of the Tamil Nadu Prohibition Act. The petitioner has filed the above three petitions to quash the proceedings initiated against him on the ground that the provisions of Prohibition Act and Tamil Nadu Chloral Hydrate Rules, 1984 will not be applicable to him since tie was selling Madhukashayam under a valid licence granted to him under the provisions of Drugs and Cosmetics I Act, 1940 and the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. The further contention of the Learned Counsel for the petitioner is that under Rule 4 of the Tamil Nadu Spirituous Preparation (Control) Rules, 1984 which was framed in exercise of; the powers conferred by S. 54 of the Tamil Nadu Prohibition Act, 1937 and in super session of the Home Department Notification No. SRO 7548 of 1958 dated 1st November, 1958 published at pages 1993 to 2000 of the Fort St. George Gazette dated 26th November, 1958, the provisions of the Tamil Nadu Prohibition Act will not apply to him. As per the proviso to Rule 4 of Tamil Nadu Spirituous Preparation (Control) Rules, 1984 the provisions of the Prohibition Act will not affect the operation of the Medicinal and Toilet Preparation (Excise Duties) Act, 1955 and the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. The Learned Counsel for the petitioner also drew my attention to S. 33M of the Drugs and Cosmetics Act, 1949 whereby only an Inspector with the previous sanction of the authority specified under S. 33(G) of the said Act can institute a prosecution for any violation of the conditions of the licence. I entirely agree with the contention raised by the Learned Counsel for the petitioner. As such, I find that the charges framed against the petitioner for an offence arising under the Prohibition Act is without jurisdiction. Consequently, the proceedings initiated as against the petitioner in C.C.126 of 1986 pending on the file of the learned Special Judicial First Class Magistrate Tirunelveli as well as proceedings, pending in C.C. 1232 of 1986 and 1231 of 1986 on the file of V Metropolitan Magistrate Egmore, are quashed arid the petitions are allowed.