Vijay Chowdhary and Another vs State and Others

J.P. Singh, J.—A sample of tablet Serase-5, batch No. TS-103, manufactured by M/S QP Pharmachemb Pvt. Ltd, Derra Bassi (Punjab),

bearing manufacturing date 6/99 and expiry date 5/2002, lifted by Mr. Parvez Ahmed Bhat, Drugs Inspector (HQ) from the premises of M/S New

Suraj Transport Agency Srinagar, from the consignment of M/S Wani Traders, Pharmaceutical Distributors, Gaw Kadal, Srinagar, on its analysis,

by the Central Indian Pharmacopoeia Laboratory Gaziabad, was found to be spurious in terms of its Report No. CIPL/6031/38 dated

14.01.2002.

State through its Drugs Inspector (HQ) Srinagar, filed a complaint in this regard, before learned Judicial Magistrate First Class (Sub Registrar)

Srinagar, who on finding a prima facie case for commission of the offence punishable u/s 27(c) of the Drugs and Cosmetics Act, issued Process

against the functionaries of M/S QP Pharmachemb Pvt. Ltd, Derra Bassi (Punjab). Vijay Choudhary and Anil Berry, the Director and the

Managing Director of M/S QP Pharmachemb Pvt. Ltd, Derra Bassi (Punjab), have approached this Court seeking quashing of the proceedings, or

in the alternative, the transfer of the complaint for its trial by any Court of competent jurisdiction at Jammu. Petitioners' learned Counsel referred to

the provisions of Section 33-G(4) of the Act to urge that in the absence of any notification by the Government, learned Magistrate's order, taking

cognizance of the offence punishable u/s 27(c) of the Drugs and Cosmetics Act, 1940, was unwarranted and without jurisdiction. He next

contended that the company had not been provided information about the seizure of the Drug manufactured by it and had thus been deprived of its

right to get the sample re-examined by the Central Drugs Laboratory. Pleading violation of the provisions of Section 23(4) of the Act, learned

Counsel submitted that the proceedings initiated against the petitioners need to be quashed. Yet another point urged by the learned Counsel is, that

in the absence of any allegation in the complaint, that the petitioners were in-charge of the Company at the time when the alleged offence was

committed, and were responsible to the Company for the alleged offence, initiation of process against the petitioners was unwarranted.

Supporting petitioners' alternative plea for transfer of the complaint, learned Counsel submitted that it would be highly inconvenient and

cumbersome for the petitioners to spend four/five days, on each and every date of hearing, to attend the Court at Srinagar, from their present

location at Chandigarh, and in these circumstances, fair trial of the petitioners warrants transfer of the complaint from the Court of Sub-Registrar

Judicial Magistrate Ist Class, Srinagar to any Court of competent jurisdiction at Jammu.

The case was heard in ex-parte as none had appeared for the respondents to contest the petition. I have considered the submissions of learned

Counsel for the petitioners and gone through the judgments, cited by him in support of his submissions.

Petitioners' first plea that prosecution could not have been launched without previous sanction of the Authority specified under Sub-section (4)

of Section 33G of the Drugs and Cosmetics Act, 1940, is found to be misconceived, in that, this Section does not contemplate issuance of any

Sanction before launching of prosecution. Prior Sanction for launching prosecution is, on the other hand, contemplated by Section 33M of the Act,

which would have, however, no application to the facts of the present case because the prior Sanction contemplated by the Section pertains to the

prosecution of the offences appearing under Chapter IV-A of the Act and not for the offence punishable u/s 27(c), which falls in Chapter IV of the

Act.

His contention is accordingly rejected.

In view of the material placed on records by the complainant, I do not find any merit in petitioners' other contentions too relating to the violation

of the provisions of the Act, in so far as following of procedure prescribed in the Act for taking samples and complying with other requirements of

the Act, before launching prosecution for commission of offences punishable under Chapter IV of the Act, are concerned. This is so because the

material placed on records by the complainant does not indicate any prima facie violation of the provisions of the Act which are required to be

complied with before launching of prosecution under the provisions of the Drugs and Cosmetics Act, 1940, and the petitioner has not placed any

such material on records on the basis whereof his plea about the violation of the provisions of the Act may be sustained. I, however, find substance

in petitioners' last contention that neither is there any statement in the complaint nor any material on records accompanying the complaint indicating

that the petitioners were, incharge of, and were, responsible to the Company, for the conduct of business of the Company, and were thus, as such,

liable for commission of the offence by the Company, in terms of Section 34 of the Drugs and Cosmetics Act, 1940.

For all what has been said above, I am of the view that continuance of proceedings on the respondent's complaint against the petitioners, in the

absence of any allegation against them in the complaint or appearing from the material on records, of their being in-charge of, and responsible to

the Company for the conduct of its business, would amount to abuse of the process of court. Accordingly, allowing the petition, proceedings

initiated on respondents' complaint against the petitioners by learned Judicial Magistrate (Sub Registrar), Srinagar, are quashed.