Manmohan Chopra vs State

V.S. Aggarwal, J.

This is a petition filed under Section 482 of the Code of Criminal Procedure for quashing the complaint and the order passed by the trial court framing a charge against the petitioner and others dated 4.3.1989.

The facts alleged are that petitioners are doing the wholesale business and hold a drug licence. Drugs Inspector, Harbhajan Singh filed a complaint contending that accompanied by Shri B.R. Wadhawan and others, the shop of the petitioner M/s Chopra Medical Hall was inspected. Both the petitioners were present on the shop and were found to be stocking for sale and distribution tablets of Betamethasone and Dexamethasone along with other drugs. The following samples were taken for analysis under the Drugs and Cosmetics Rules :

Sample No. JD39/85 of 4 x 100 tablets of Betamethasone IPB No. 520 mfd. by M/s Drugs from Laboratories Bhatinda.

Sample No. JD40/85 of 4 x 100 tabs. of Dexamethasone IPB No. DMO1 mfd. by M/s Allied Pharmaceuticals Dhulkot, Ambala.

Sample No. J41/85 of 4 x 100 tabs. of Dexamethasone IPB No. D103 mfd. by M/s Crystal Pharmaceuticals, 365 Model Town, Ambala City.

It was alleged that the record for purchase of the drugs was not produced. The sample was sent to the Government Public Analyst, Punjab. They were declared to be not of standard quality. On receipt of the report, the Drugs Inspector issued a show cause notice along with the test report to the petitioners. The petitioners filed a reply and had sent the invoices. The petitioners'' case further was that they were not the manufacturers of the drugs. The same had simply been acquired from M/s Allied Pharmaceuticals, Ambala. They had simply stored the drugs and were in same position in which they were acquired.

The learned trial court on recording of the evidence concluded that prima facie case was drawn and accordingly held that there were sufficient grounds to frame the charge against the petitioners with respect to offences punishable under Section 27(d) read with Section 18(a)(i) and Rule 65(5)(1) of the Drugs and Cosmetics Act and the Rules framed therein.

Petitioners seek quashing of the complaint and the order directing framing of the charge against the petitioners. Their contention is that the drugs were in the same state in which they were acquired. The petitioners after exercising reasonable diligence could not show that drugs contravened any of the provisions of the Drugs and Cosmetics Act. The relevant invoices were available and had been sent to the Drugs Inspector. The petitioners have got the licence and were not the manufacturers. Thus, qua the petitioners, there was no case to hold that the charge has to be framed.

The petition has been contested. The learned Additional Chief Judicial Magistrate vide the impugned order negatived the pleas of the petitioners and held that there were sufficient grounds for framing of the charge referred to above. Therefore, the present petition has been filed for quashing of the same.

As is apparent the petitioners seek that this Court should exercise the inherent powers under Section 482 Cr.P.C. and quash the complaint and the order in question by virtue of which the trial court held that charge against the petitioner is to be framed. Under Section 482 of the Code of Criminal Procedure, this Court would only exercise its inherent powers in exceptional circumstances. It can do so to give effect to any order passed by the Court to prevent abuse of the process of the Court or to secure the ends of justice. It is not that every order can be challenged and a person rushed to this Court seeking that inherent powers should be exercised. In normal circumstances unless the conditions mentioned under Section 482 Cr.P.C. are satisfied, the inherent powers of the Court will not be utilized.

The contention of the petitioners basically was that petitioners were not the manufacturers of the drugs. They had simply kept the same in the condition in which these were received and they could not know that the same were substandard or spurious. It was also alleged that invoices were available and question of attracting Rule 65 of the Drugs and Cosmetics Rules did not arise.

Reference to some of the relevant provisions of the Drugs and Cosmetics Act, 1940 can conveniently be made. With respect to drugs the standard of quality has been prescribed in Section 16 of the said Act and read :

"16. Standards of quality. (1) For the purposes of this Chapter, the expression "standard quality" means

(a) in relation to a drug, that the drug complies with the standard set out in (the Second Schedule), and

(b) in relation to a cosmetic, that the cosmetic complies with such standard as may be prescribed.

(2) The (Central Government), after consultation with the Board and after giving notification in the Official Gazette not less than three months notice of its intention so to do, may by a like notification add to or otherwise amend (the Second Schedule) for the purposes of this Chapter, and thereupon (the Second Schedule) shall be deemed to be amended accordingly".

Section 17 gives the description of misbranded drugs, Section 17A of adulterated drugs and Section 17B of spurious drugs. In this regard Section 18 is important and is being reproduced below for the sake of facility :

"18. Prohibition of manufacture and sale of certain drugs and cosmetics. From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on this behalf

(a) manufacture for sale (or for distribution), or sell, or stock or exhibit (or offer) for sale, or distribute

(i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious;

(ii) any cosmetic which is not of a standard quality, or is misbranded or spurious;

(iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof (the true formula or list of active ingredients contained in it together with the quantities thereof);

(iv) any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims (to prevent, cure or mitigate) any such disease or ailment, or to have any such other effect as may be prescribed;

(v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended;

(vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder;

(b) sell, or stock or exhibit (or offer) for sale, or distribute any drug (or cosmetic) which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder;

(c) manufacture for sale (or for distribution) or sell, or stock or exhibit (or offer) 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 :

Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis :

Provided further that the (Central Government) may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the manufacture for sale (or for distribution, sale, stocking or exhibiting or offering for) sale or distribution of any drug or class of drugs not being of standard quality."

The above provisions quoted show that no person can manufacture, sell or even stock a drug which is not of standard quality, is misbranded, adulterated or spurious. Stocking for sale of the drugs also contravenes Section 18 of the said Act. In addition to that under Section 18(b) a person holding a licence has to keep and maintain such record and register as may be prescribed. Section 19 makes a departure from the general concept and prescribes that it is not a defence in prosecution that accused was ignorant of the substance or quality of the drug. Subsections (1) and (3) of Section 19 reads :

"19(1). Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug (or cosmetic) in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale....

(3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of Section 18 if he proves

(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;

(b) that he did not know and could not, with reasonable diligence have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and

(c) that the drug or cosmetic, while in his possession, was properly stored and remained in the same state as and when he acquired it."

Before the petitioner can take advantage of the exceptions contemplated under Section 19(3), three ingredients have to be established : (a) that the accused did not know that the drug in any way contravened provisions of Section 18; (b) that he could not with reasonable diligence ascertain that the drug contravened the same provision; and (c) that the drug while in possession remained in the same state when he acquired it.

This is the defence which the petitioner can prove. At this stage, the trial court had considered the contentions and felt that there were sufficient grounds to frame the charge for violation of the provisions of the Act. Purposely the evidence is not being scrutinized which would be embarrassing for either party because the trial has yet to be proceeded with. However, there is no ground to take a different view. The trial court on basis of the evidence has rightly framed the charge. The petitioners can prove in their defence the pleas that they have taken and also pertaining to Rule 65(5) of the Drugs and Cosmetics Rules. But there is no ground to exercise the inherent powers and quash the complaint and the proceedings.

For these reasons, the petition being without merit fails and is dismissed.