N. Kumaresan vs State

K.B.K. Vasuki, J.—Heard both sides.

Both the Criminal Original Petitions are filed by A6 and A7 in CC. Nos. 3112 and 4852 of 2011, on the file of 4th Metropolitan Magistrate, Saidapet, Chennai-15, now transferred to the file of 3rd Additional Sessions Judge, City Civil Court, Chennai and renumbered as CC. Nos. 15/2014 and 23/2014, arising out of the private complaints filed by the respondent Drugs Inspector, for the contravention of Section 18(a)(i) r/w Section 17B(D) and Section 18(a)(i) respectively, for having manufactured and sold lesser standard quality spurious drugs, punishable under Section 27(c) of the Drugs and Cosmetics Act 1940. The complaints were filed against the manufacturing company represented by its Managing Partner and Partner, Manufacturing Chemist and Analytical Chemist of the manufacturing company and whole sale dealer and Retailer, arraying them as A1 to A7.

The present petitions are filed by A6 and A7 in their capacity as Licenced Wholesale dealer of M/s. N.K. Pharmaceuticals and Retailer-cum-Owner of respective Medicals. The fact that A6 is the Licenced distributor and purchased the drugs under due invoice and delivery note and A7 being retailer, purchased the same from A6 under due invoice and properly stored in the Medical Stores, is not seriously denied.

Both the petitioners have claimed protection under Section 19(3) of the Drugs and Cosmetics Act, which says a person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for 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 when he acquired it.

As far as the first petitioner/A6 is concerned, he being the licenced distributor, is entitled to claim benefit under Section 19(3) only when he succeeds in proving clauses (a) to (c) and the same are question of facts to be proved on the basis of the materials adduced before the trial court at the time of trial. The plea so raised on the side of the licenced distributor, seeking protection under section 19(3) cannot be decided in these criminal original petitions.

As far as the second petitioner/A7 is concerned, the very fact that he is retailer-cum-owner of the Medicals and he purchased the drugs from the licenced distributor and is entitled to protection under Section 19(3) of the Act, is covered by the earlier decision of this court reported in 2009(1) TLNJ 253 (Criminal) (P. Sukumar v. State represented by Senior Drugs Inspector, Salem Zone, Salem). In the case decided by the learned brother judge, the accused was licensed shop owner (Medicals) and he acquired the drugs from a duly licensed manufacturer and there was no allegation in the complaint that the petitioner had any knowledge about the contravention of the provisions under the Act or he was aware that the drugs were spurious and not of standard quality. It was nobody''s case that he has not stored the same properly and it remained in the same state while such drug was in his possession. When the petitioner therein, on the basis of the admitted case of the prosecution, proved the three conditions contemplated under Section 19(3) of the Act, this Court was inclined to hold that he was entitled to protection under section 19(3) of the Act and the proceedings initiated against him was accordingly quashed.

The same analogy is applicable to the facts of the present case, wherein also, no allegation is made against the second petitioner. Even if it is taken in entirety, the same would not make out any case against the second petitioner. In that event, the second petitioner satisfies all the three conditions and entitles to the protection under Section 19(3) of the Act. Therefore, there is no justification for this Court to allow the proceedings to continue against the second petitioner/A7, failing which, it will amount to clear abuse of process of law and is likely to seriously prejudice the second petitioner, as such, this Court is of the view that the proceedings is liable to be quashed against the second petitioner/A7.

In the result, both the criminal original petitions are dismissed insofar as the first petitioner/A6 is concerned and are allowed by quashing the proceedings in CC Nos. 3112 and 4852 of 2011 on the file of the Metropolitan Magistrate No. IV, Saidapet, Madras-600015, now transferred to the file of 3rd Additional Sessions Judge, City Civil Court, Chennai and renumbered as CC. Nos. 15/2014 and 23/2014, against the second petitioner/A7 alone. Consequently, connected miscellaneous petitions are closed.