Dr. S. Selvam vs State

G.M. Akbar Ali, J.—This petition is filed to quash the proceedings in C.C. No. 269 of 2010 on the file of the learned Judicial Magistrate, Tenkasi, Tirunelveli District.

The respondent/Drug inspector has laid a complaint u/s 32 of the Drugs and Cosmetics Act 1940 (hereinafter referred to as the Act) for the contravention of Section 18(c) of the Act punishable under the Section 27(b)(ii) of the Act. It is stated that on 10.11.2009 at about 10.00 a.m., the complainant inspected the hospital viz., Mathura Hospital belongs to the petitioner at 100, Perumal Koil Street, Tirunelveli Main Road, Tenkasi. They found stocks of various drugs which were stored in a separate room for sale and distribution without obtaining valid licence. The complainant was drawn the samples under the provisions of the Act. A show cause notice was issued to explain for the contravention of Section 18(c) of the Act. On receiving the analysis report, the complainant has filed the final report for initiation of the prosecution as stated above, Aggrieved by launching the prosecution, the petitioner is before this Court.

The stand taken by the petitioner is that the petitioner who is qualified as M.D., D.M., a Cardiologist practising at Thenkasi was in possession of the drugs for the purpose of ad-ministration of medicine, who: are coming to him for heart ailment. Only with a view of professional rivalry, one Dr. Subramanian, the landlord of the property had given a false complaint and without application of mind, the complainant has initiated the proceedings. The defence is that he had not contravened the provisions u/s 18 of the Act and mere possession of the drug would not amount to sale or distribution.

Reiterating the arguments Mr. S. Shun inugave Iayutham, learned Senior counsel for the petitioner relied on the judgments State of Uttar Pradesh Vs. Boota Singh and Others, ,V. Loganathan v. State by Drug Inspector, Chengalpul Range, Kancheepuram (1992) 1 MLJ (Crl) 126 and State by Drugs Inspector, Nagercoil Range, Nagereoil v. Dr. V. Shanmugam 2011(3) R.C.R.(Criminal) 89 MADRAS: (2011)2 MLJ (Crl) 340.

On the contrary, Ms. Devasena, learned Government Advocate (Criminal Side) would submit that the complainant has inspected the hospital and seized large quantity of various drugs which were stocked for sale and distribution and sales bill is were also recovered from independent witness and therefore, the petitioner has committed an offence u/s 18(C) of the Act.

Heard the learned counsel for the petitioner and the learned Government Advocate (Crl. side) and perused the materials available on record.

It is admitted that the petitioner is running a hospital under the name and style Mathura Hospital at Thenkasi. Admittedly, it is a nursing home. According to the complainant, he found stock of various drugs in a separate room for sale and distribution. However, according to the Petitioner, he is a Cardiologist by profession and he was in possession of the drug only for the administration of the patient and it is not for sale or distribution. He also alleged that the landlord, who is also a Doctor by profession, had falsely implicated the petitioner.

Section 18(c), of the Act runs as follows:

....manufacture for sale, or sell, or stock or exhibit for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of a licence issued for such purpose under this Chapter.

Section 27 is the penal section under which the offence is punishable and this section runs thus:

Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes -

(a) Any drug -

(i) Deemed to be misbranded under Clause

(a), Clause (b), Clause (c), Clause (d) or Clause (g) of Section 17 or adulterated u/s 17-B; or

(ii) Without a valid licence as required under Clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten/years and shall also be liable to fine;

Provided that the Court may, for any special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year.

In Mohd. Shabir v. State of Maharashtra (supra) the Supreme Court has held as follows:

We, therefore, hold that before a person can be liable for prosecution or conviction u/s 27(a)(i)(ii) read with Section 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of Section 27, are not satisfied the plea of guilty cannot lead the Court to convict the appellant.

In V. Loganathan v. State by Drug Inspector, Chengal put Range, Kancheepuram (supra) this Court has held as follows :

...There is nothing in the complaint to show that the petitioner was dealing in distribution or selling the drugs at the time when he visited the place. The Supreme Court has pointed out that mere possession simpliciter would not amount to an offence under any of the provisions of the Act. Even the complaint does not disclose that the petitioner was selling, distributing or storing drugs for sale. In the circumstances the contention of the learned counsel, for the petitioner that the petitioner has not committed the offences under any of the said provisions of the Act and the prosecution is therefore abuse of process of law, has to be accepted and I find that the petitioner cannot be suited to have contravened Section 18(a) and 16(C); of the Drugs and Cosmetics Act read with 27 and 28 of the said Act.....

In State by Drugs Inspector, Nagercoil Range, Nagercoil v. Dr. V. Shanmugam (supra), the Single Judge of this Court has dealt with the similar case and held as follows :

Following the principles laid down in the above said decision, this Court is of the considered view that on scrutiny, the prosecution has not established that the medicines were stocked for the purpose of sale.

Therefore, it is well settled that the possession simpliciter would not amount to contravention of Section 16(c) of the Act punishable under the Section 27(b)(ii) Drugs and Cosmetics Act 1940. It contemplates stocking the drugs for the purpose of sale or distribution.

In the present case, it is admitted that the petitioner is running a nursing home and he was in possession of the drugs, which has been listed by the complainant. The possession is not denied. Whether it was exhibited for sale is to be considered. In the complaint, it is stated that the complainant has found stocks of various drugs in a separate room. There is no allegation that the stocks were exhibited for sale. It is further alleged that one Dr. Subramanian was summoned and he had produced original purchase bills alleged to have been issued by the petitioner. It is to be noted that there is rivalry between the petitioner and the landlord and only on his complaint, a writ petition was disposed of for the consideration of the representation and subsequent inspection, which led to filing of a case. Therefore, without examining the persons in whose name the receipts issued the validity or truthfulness of the purchase bills cannot be established. Admittedly, the complainant has not seized any book of sales bills from the premises.

Normally, the High Court will not interfere in a criminal proceeding unless it is proved that there is an abuse of process of law or intended with harassment. In such circumstances, the Hon''ble Apex Court has high- lighted the parameters in Bujunlal''s case and the illustration vii of para 128 stands attracted which reads as follows :

(vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Therefore, the mere possession will not attract an offence under the Drugs and Cosmetics Act and the continuance of the proceedings is nothing but abuse of process of law initiated with an intention to harass the petitioner, who is a practising Cardiologist. It is a fit case to interfere with the proceedings. Hence, the entire proceedings in C.C. No. 269 of 2010 on the file of the learned Judicial Magistrate, Tenkasi, Tirunelveli District is quashed.

In the result, the criminal revision petition is allowed. Consequently, connected M.P. is closed.