Mayank Pandya @APPELLANT@Hash State of Rajasthan & Ors.

These criminal misc. petitions have been filed on behalf of the petitioners being aggrieved with the orders dated 18.09.2015 passed by the Additional

Sessions Judge, Banswara (hereinafter to be referred as ‘the revisional court’) in Criminal Revision Petition Nos.28/2013, 29/2013, 30/2013,

31/2013 and 32/2013, whereby the revision petitions filed by the petitioners have been dismissed. The said revision petitions were filed by the

petitioners being aggrieved with the orders dated 05.09.2013 passed by the Additional Chief Judicial Magistrate, Banswara (hereinafter to be referred

as ‘the trial court’) in Case Nos. 168/2010 and 169/2010, whereby the trial court ordered for framing charges against the petitioners for the

offences punishable under Sections 27(b)(i), 27(c) and 27(d) of the Drugs and Cosmetics Act, 1940 (hereinafter to be referred as ‘the Act of

1940’).

Mayank Pandya (petitioner No.1 in SB CRLMP Nos.3429/2015 and 3367/2015) is the registered pharmacist of M/s Om Medical General Stores,

Banswara (petitioner No.2 in SB CRLMP Nos.3429/2015 and 3367/2015). M/s Pharma Traders (HUF), Jaipur and Ravi Kumar Mehta (Petitioner

Nos.1 and 2 in SB CRLMP No.3361/2015 respectively) are the distributors, whereas Kamlesh, Naveen Toliya and Sharad N. Wadaliya (petitioner

Nos.1 to 3 in SB CRLMP Nos.3368/2015 and 3427/2015 respectively) are the Directors of a pharmaceutical company viz. M/s Vertex

Pharmaceuticals Pvt. Ltd., Indore (MP).

Brief facts of all the cases are that the Drugs Inspector, Banswara on 05.03.1997 and 17.03.1997 inspected petitioner firm-M/s Om Medical General

Stores, Mohan Colony, Banswara in the presence of its registered pharmacist petitioner-Mayank Pandya and took samples of Synerlox Capsules. The

said capsules were sent for chemical examination on 05.03.1997 and 18.03.1997 respectively to the Government Analyst, Jaipur. The Government

Analyst, Jaipur sent its reports dated 26.05.1997 and 27.03.1997 respectively of said capsules, wherein it was observed as under:-

“The sample does not conform to the claim with respect to Assay of Gloxacilin. (38.72%)â€​

“The sample does not conform to the claim with respect to Assy of Gloxacillin (70.56%)â€​

Petitioner-Mayank Pandya was provided copies of reports dated 02.04.1997 and 03.06.1997 and as per the complaint, petitioner-Mayank Pandya did

not ask for sending the sample to the Central Laboratory, however, information regarding the distributors and the manufacturers was obtained and

thereafter two separate complaints were filed under the various provisions of the Act of 1940 by the Drugs Inspector, Banswara before the trial court.

The trial court took cognizance against the petitioners in both the complaints and the same were registered being Case Nos.168/2010 and 169/2010

against them. Petitioners-M/s Pharma Traders (HUF), Jaipur and Ravi Kumar Mehta were arraigned as accused in Case No.169/2010 only, however,

other petitioners were arraigned as accused in both the Cases Nos.168/2010 and 169/2010.

The trial court took cognizance against the petitioners and thereafter vide impugned orders dated 05.09.2013 framed charges against them for the

offences punishable under Sections 27(b)(i), 27(c) and 27(d) of the Act of 1940.

The petitioners challenged the orders of framing of charges passed by the trial court on 05.09.2013 before the revisional court, however, the revisoinal

court vide impugned orders dated 18.09.2015 has dismissed the revision petitions filed by the petitioner. Hence, these criminal misc. petitions.

Mr. Pankaj Gupta, learned counsel appearing for petitionerMayank Pandya has argued that petitioner-Mayank Pandya is ignorant of the nature,

substance or quality of the drugs, the samples of which were found substandard. It is submitted that petitioner-Mayank Pandya acquired drug from the

licensed distributor and he did not know that the drug in any way contravened the provisions of the Act of 1940. There is no allegation that he was not

diligent and there is also no allegation to the effect that the drug, while in his possession, was not properly stored. It is argued that the Drug Inspector,

Banswara, in his statements recorded at pre-charge stage, has clearly stated that the drug seized from the shop of petitioner-Mayank Pandya remain

in the same state as it was acquired. Learned counsel for the petitioner has, therefore, argued that the trial court has illegally framed charges against

petitioner-Mayank Pandya without taking into consideration these aspects of the matter.

Mr. Pankaj Gupta, learned counsel appearing for the Directors of M/s Vertex Pharmaceuticals Pvt. Ltd., Indore (MP) i.e. petitioners-Kamlesh,

Naveen Toliya and Sharad N. Wadaliya has argued that there is no averment in the complaint filed by the Drug Inspector, Banswara that the above

named Directors of M/s Vertex Pharmaceuticals Pvt. Ltd., Indore (MP) were responsible for the day to day business of the M/s Vertex

Pharmaceuticals Pvt. Ltd., Indore (MP) and in the absence of any such allegation in the complaint the criminal proceedings against them cannot be

continued and the same are liable to be set aside.

Mr. Pankaj Gupta has placed reliance on the decision of Hon’ble Supreme Court rendered in S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla &

Anr. reported in (2005) 8 SCC 89 and the decisions of this Court rendered in D.P. Soni Vs. State of Rajasthan & Ors. reported in 2007(2) RLW 1565

and N.H. Khushrokhan & P.V. Nayak Vs. State of Rajasthan reported in 2008(1) Cr.L.R. (Raj.) 94.

Mr. Vineet Jain, learned counsel appearing for the Distributor Company i.e. petitioner-M/s Pharma Traders (HUF), Jaipur has argued that petitioner-

M/s Pharma Traders (HUF), Jaipur is the distributor company and it had sold the drug to petitioner-M/s Om Medical General Stores, Banswara in the

same condition, in which it had received from the manufacturer. It is argued that neither there is any allegation in the complaint to the effect that

petitioner-M/s Pharma Traders (HUF), Jaipur being a distributor company had acquired the drug from manufacturer, who did not have any license nor

it was aware that the drug, which is being distributed by it, in any way contravenes the provisions of Act of 1940 and the drug was not properly stored

by it.

Mr. Vineet Jain, learned counsel for petitioner-M/s Pharma Traders (HUF), Jaipur has submitted that there is no allegation in the complaint that

petitioner-M/s Pharma Traders (HUF), Jaipur being a distributor has not diligently acted and acquired the drug from the manufacturer, who did not

have any license. It is submitted that in the absence of any such allegation in the complaint, the criminal proceedings against it cannot be continued and

the same are liable to be set aside.

Learned Public Prosecutor has opposed the prayer made on behalf of all the petitioners and prayed that there is no illegality in the impugned orders

passed by the courts below.

Heard learned counsel for the parties and carefully scrutinizied the record.

There is no dispute about the fact that respondent-Mr. Heera Lal Bansal, Drug Inspector, Banswara (respondent No.2 in SB CRLMP No.3361/2015)

inspected the shop of petitioner-Mayank Pandya on 05.03.1997 and 17.03.1997 and seized strips of Synerlox Capsules. The samples of seized drugs

were sent for examination to the Government Analyst, Jaipur and the reports whereof were received with a remark that the samples do not conform

to the claim in respect to a chemical.

It is also not in dispute that neither before the trial court nor the revisonal court, the plea was raised by any of the petitioners that they were not

provided any opportunity to get the samples examined by the Central Laboratory.

It is also noticed that before the trial court or before the revisional court, no plea was raised on behalf of the Directors of M/s Vertex

Pharmaceuticals Pvt. Ltd., Indore (MP) i.e. petitioners-

Kamlesh, Naveen Toliya and Sharad N. Wadaliya that none of them was not supervising the day-to-day business of the M/s Vertex Pharmaceuticals

Pvt. Ltd., Indore (MP).

Hence, the decisions referred above by Mr. Pankaj Gupta, learned counsel appearing for the petitioners-Kamlesh, Naveen Toliya and Sharad N.

Wadaliya are of no help to them.

The protection as provided under Sub-section (3) of Section 19 of the Act of 1940 is not available to the retailer or the distributor as the petitioners

have not been charged for commission of offence under Section 18 of the Act of 1940. The plea of Retailer i.e. petitioner-Mayank Pandya and the

Distributor Company i.e. petitioner-M/s Pharma Traders (HUF), Jaipur to the effect that they acquired drug from duly licensed manufacturer and

were not aware that the drug in any way contravened the provisions of Act of 1940, or the drug was properly stored by them, is not available to them

in view of Sub-section (1) of Section 19 of the Act of 1940, which provides that it shall be no defence in a prosecution to the accused that he was

ignorant of the nature, substance or quality of drug or cosmetic in respect of which the offence has been committed.

However, it is noticed that the trial court has charged the petitioners for the offences punishable under Sections 27(b)(i), 27(c) and 27(d) of the Act of

1940, however, from bare perusal of the complaint, this Court is convinced that there is no allegation to the effect that the drug seized from the shop of

petitioner-Mayank Pandya was adulterated or spurious drug.

The reports of the Government Analyst, Jaipur suggest that the samples of the drug do not conform to the claim in respect to a chemical and it does

not say that the samples of the drug were adulterated or the drug was spurious drug.

Taking into consideration the reports of the Government Analyst, Jaipur, and the allegation made in the complaints, the only offence, which is made out

against the petitioners, is that the statement or the claim in respect of a particular chemical in the drug is false and as such it falls within the definition

of missbrand chemical, which is defined in Section 17C of the Act of 1940:-

“17C. Misbranded cosmetics.â€"For the purposes of this Chapter, a cosmetic shall be deemed to be misbranded,-(a) if it contains a colour which is

not prescribed; or

(b) if it is not labelled in the prescribed manner; or

(c) if the label or container or anythingaccompanying the cosmetic bears any statement which is false or misleading in any particularâ€​

In view of the above, the only offence, which is prima facie made out against the petitioners, is the offence punishable under Section 27(d) of the Act

of 1940.

In view of the above discussions, these criminal misc. petitions are partly allowed. The impugned orders dated 05.09.2013 passed by the trial court in

Case Nos. 168/2010 and 169/2010 to the extent of framing of charges against the petitioners for the offences punishable under Sections 27(b)(i) and

27(c) of the Act of 1940 are set aside and the trial court is directed to try the petitioners only for the offence punishable under Section 27(d) of the

Act of 1940.

The record of the trial court be sent back immediately.