IMPORTANT POINT
Where a licence was required for dealing with the drugs mere fact that application for licence was filed, did not entitle respondent to manufacture and/or to sell the concerned drugs.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge quashing the proceedings in CC No. 917 of 2004 in the Court of Chief Judicial Magistrate, Ernakulam.

3. Background facts in a nutshell are as follows:

A complaint was filed alleging commission of offences punishable under Section 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 (in short the ‘Act’). Allegation was that the three accused persons were manufacturing and selling and storing DXN Ganocelium (GL) and DXN Rishi and (RG) capsules, which are drugs within the definition of Section 3(b) of the Act, without a manufacturing licence. In the complaint M/s. Deshsan Trading (India) Pvt. Ltd. represented by Abdul Rahmath Puvarasar Abdulla, Director and Abdul Rahmath Pavarsan Abdulla and Orison J Francis, Branch Manager were arrayed as accused persons Nos. 1 to 3. A petition under Section 482 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) was filed by the accused No. 1 and 3 who are respondents 1 & 2 in the present appeal. Basic stand before the High Court was that the alleged drugs seized belonged to “Ayurvedic” category which is dealt with under Section 3(a) whereas the “Allopathy drugs” are defined under Section 3(b). Separate Chapter i.e. Chapter IVA deals with Ayurvedic drugs etc. while Chapter IV deals with “Allopathy drugs”. The charge is that the appellants violated Section 18(c) of Chapter IV, i.e. with respect to Allopathy Drugs. According to the accused the article sold was food supplement and at best is only an Ayurvedic proprietary drug. The Drug Department of State of Tamil Nadu has issued drug licence under Chapter IV-A as an Ayurvedic drug and thereafter licence was issued by the Food and Drug Administration, Pondicherry. Hence, sanction under Section 33 M of the Act ought to have been obtained to launch prosecution, which is lacking. It is also not established that the person who launched the complaint is a public servant under Section 21 of the Act. According to them, gazette notification and the letter of appointment of the complainant/Drug Inspector are insufficient to satisfy Section 21 or Section 33G. What has been produced is only a transfer order. It was further contended that the court has not considered the pre-summoning evidence in the matter. Nowhere it is mentioned in the complaint that the same has been filed by the complainant in his capacity as public servant and the examination of the complainant can be dispensed with.

4. Stand of the present appellant before the High Court was that whether the goods seized were Ayurvedic Drugs can only be decided in the trial and the threshold interference by the High Court is not called for. Additionally it was submitted that the undisputed position being that the respondents did not possess a licence, the High Court could not have interfered. The mere fact that the licence was granted subsequently is of no consequence. It was pointed out that the inspector who made the seizure and filed the complaint was authorized to do so. In this connection, reference is made to the order dated 3.5.2000 transferring the concerned Drug Inspector from the Drugs Control Society, Trivendrum to be posted as Drug Inspector in the office of the Assistant Drugs Controller. Reference is also made to the Notification dated 19.11.2001 relating to the power of inspection of inspectors. It is stated that the explanatory note has no application because only when the drug is shown to be Ayurvedic drug, the explanatory note shall have relevance.

5. Learned counsel for the respondents, on the other hand, submitted that the seized drugs are nothing but Ayurvedic drugs. The complaint itself was filed after two years on 2.12.2003, though the seizure was made on much earlier. It is also submitted that the licence was subsequently granted after a long lapse of about two years. Same is a factor which has weighed with the High Court and for a tec