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SUPREME COURT OF INDIA
Krishna Murari, Sudhanshu Dhulia, JJ.
S. ATHILAKSHMI – Appellant(s)
Versus
THE STATE REP. BY THE DRUGS INSPECTOR – Respondent(s)
Criminal Appeal No. 804 of 2023 (@ SPECIAL LEAVE PETITION (CRL.) No.9978 OF 2022)
Decided On : 15-03-2023
Drugs and Cosmetics Act, 1940 – Sections 18(c) and 27(b)(ii) – Drugs and Cosmetics Rules, 1940 – Rule 123 – Criminal Procedure Code, 1973 – Sections 197 and 482 – Seizure of prohibited drugs – It is not the case of prosecution that Appellant was selling drugs from an open shop across the counter – She is a senior Doctor – Considering small quantity of medicines most of which are in category of lotions and ointments, it cannot be said that such medicines could be stocked for sale and would come in category of stocking of medicines for the purpose of sale – When small quantity of medicine has been found in premises of a registered medical practitioner, it would not amount to selling their medicines across the counter in an open shop – This is not even allegation against Appellant – No offence is made out in present case – There is no explanation which has been given for this delay in getting approval – Sanction for prosecution given in present case appears, prima facie, to suffer from vice of non-application of mind – Criminal proceedings quashed. (Paras 8, 9, 13, 14 and 16)
Facts of the case:
Drugs Inspector filed a complaint before the Court of X Metropolitan Magistrate, Egmore, for prosecuting the Appellant under Section 18(c) of the Drugs and Cosmetics Act, 1940 punishable under Section 27(b)(ii) of Act. Aggrieved by these proceedings, the Appellant filed application under Section 482 of the Code of Criminal Procedure, 1973 before High Court of Madras for quashing the criminal proceedings. Her petition was dismissed by Single Judge on 21.06.2022. Aggrieved by this, the Appellant has filed Special Leave Petition before this Court against order of the Single Judge.
Findings of Court:
Appellant has produced multiple invoices from pharmaceutical shops to show her bonafides. Further, upon inspection of the drugs by Drugs Testing Laboratory, Tamil Nadu they returned a finding that the drugs were of ‘standard quality’ which indicates it is not a case where Appellant was operating a shop to sell spurious medicines over the counter.
Result : Appeal allowed.
JUDGMENT :
SUDHANSHU DHULIA, J.
Leave granted.
2. The Appellant before this Court is a registered medical practitioner who is presently working as an Associate Professor and the Head of Dermatology Department, in the Government Omandurar Medical College, Chennai. In the past, she has held the post of Assistant Professor and Civil Surgeon at Royapettah Medical College. It is permissible for her under the law to practice medicine when she is not performing her official duties. The Appellant, in her individual and independent capacity was carrying on her medical practice at a premises which is No. 87, Red Hills Road (North), Villivakkam, at Chennai. It is here that she could be consulted and where she meets and examines her patients.
3. An inspection was made on the above premises by the Drugs Inspector, Villivakkam Range on 16.03.2016. As per inspection report, the Drugs Inspector found the following medicines in the inner room of her premises.
| S. No. | Name of Drug | Quantity | M.R.P (Rs.) |
| 1. | Denidol Lotion 50ml | 1 No. | 198.50 |
| 2. | Salico Lotion 30ml | 4 Nos. | 75/30 ml. |
| 3. | A-CN Gel 20 gms | 1 No. | 98/20gms |
| 4. | Tebir Gel 10 gms | 9 Nos. | 47.90/10gms |
| 5. | Soltop-S. 6% Lotion (30ml) | 4 Nos. | 125/30ml |
| 6. | Mycotin Cream 15 gms | 3 Nos. | 115/15gms |
| 7. | Mopry 2% Ointment | 4 Nos. | 75.60/5gms |
| 8. | Momtop-S Ointment (10gms) | 1 No. | 145/10gms |
| 9. | ESM Cream (10gms) | 4 Nos. | 76/10gms |
| 10. | Nu-Whitified Ointment (20gms) | 7 Nos. | 40/20gms |
| 11. | Momesone Cream (15gms) | 3 Nos. | 82/15gms |
| 12 | Sudif Cream (10gms) | 4 Nos. | 99/10gms |
| 13. | CAP Gel (15gms) | 1 No. | 156/15gms |
| 14. | Kenozole Cream (30gms) | 2 Nos. | 130/30gms |
| 15. | Soltop-S 3% Ointment | 1 No. | 125/30gms |
| 16. | Zylo AC gel 2.5% (20gms) | 1 No. | 99.74/30gms |
| 17. | Ketzi cream (30gms) | 1 No. | 99.47/30gms |
| 18. | Ketoff lotion (60ml) | 2 Nos. | 150/60ml |
The Drugs Inspector also referred to certain sale bills of medicines which are as follows:
| Sr. No. | Bill No. & Date | Name of the Drug | Qty. Sold |
| 1 | 409 dated 24/02/2016 | Mycotin Cream Nufoce Power Certrezol – L tablets | 1 No. 1 No. 10 Tablets |
| 2 | 423 dated 9/03/2016 | Certivera Lotion ESM Cream ILor or Tablets Cetrezol L Tablets | 1 No. 1 No. 10 Tablets 10 Tablets |
| 3 | 426 dated 11/03/2016 | Adixied Tablets CAP Gel AFK Lotion CAN Soap Zit care Tablets | 2 Strips 1 No. 1 No. 1 No. 2 strips |
| 4 | 424 dated 9/03/2016 | P Scab Lotion 1 for Tablets Loxip Tablets | 1 No. 10 Tablets 10 Tablets |
| 5 | 428 dated 11/03/2016 | Cultivera Location Momesone Cream Cetrezol – L tablets | 1 No. 1 No. 10 Tablets |
4. The Drugs Inspector thereafter moved an application for obtaining sanction from the office of the Director of Drugs Control, Tamil Nadu, Chennai-06 on 22.09.2016 which was given to him on 23.01.2018. Consequently, the Drugs Inspector filed a complaint before the Court of X Metropolitan Magistrate, Egmore, for prosecuting the Appellant under Section 18(c) of the Drugs and Cosmetics Act, 1940 punishable under Section 27(b)(ii) of the Act.
5. Aggrieved by these proceedings, the Appellant filed an application under Section 482 of the Code of Criminal Procedure, 1973 before the High Court of Madras for quashing the criminal proceedings. Her petition was dismissed by the Ld. Single Judge on 21.06.2022. Aggrieved by this, the Appellant has filed Special Leave Petition before this Court against the order of the Single Judge.
6. Under Section 18 of Drugs and Cosmetics Act 1940, a prohibition has been imposed as to the manufacture, sale etc. of certain drugs and cosmetics. Section 18 reads as follows:
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 his behalf—
(a) …………
When small quantity of medicine has been found in premises of a registered medical practitioner, it would not amount to selling their medicines across the counter in an open shop.
The petitioner contravened Section 18(c) of the Drugs and Cosmetics Act by stocking and selling drugs without a license. The petitioner is liable under Section 27(b)(ii) of the Act.
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