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BOMBAY HIGH COURT
Prakash D. Naik, J.
Dr. Dilip Pundalik Patil —Applicant
versus
State of Maharashtra and Anr. —Respondents
Criminal Application No.2535 of 2017
Decided on 20.12.2017
Counsel for the Parties:
For the Applicant:Mr. Naseem R. Shaikh, Advocate
For the Respondents: Mr. K.S. Patil, APP
IMPORTANT POINT
The powers under section 204 Cr.P.C. has to be exercised judicially. A person ought not to be dragged to the court merely because a complaint has been filed. If a prima facie case is made out, the process can be issued.
Headnote:Drugs and Cosmetics Act, 1940—Section 18(c), 27(b)(ii)—Prosecution for offence under section 18(c) of the Act—Quashing of—Selling medicines from, the shop of which licence is already cancelled—Accused No.1 is the proprietor of a Medical Store—Licence to conduct the business issued to accused No.1 had expired on 16.4.2012 and it was not renewed—Complainant, Drugs Inspector visited the premises on 11.10.2012 to inspect the medical shop when the proprietor of the shop was absent—It was alleged that accused Nos.2 and 3 were persons illegally selling medicines from the shop of which the licence had already been cancelled—Licensing Authority cancelled the licence of the said shop w.e.f. 5.12.2012—There was no material to show that the applicant was conducting the business from those premises—Whether the trial court was justified in issuing process on basis of averments made in the complaint—(No)
(Paras 10, 12 and 13)
Result: Application allowed.
JUDGMENT
Prakash D. Naik, J.—Heard both the sides. With the consent of both the parties, the application was heard for final disposal.
2. Rule. Rule made returnable forthwith.
3. The applicant is arraigned as accused No.2 in Regular Criminal Case No.116 of 2013, which is pending before the Court of Chief Judicial Magistrate, Jalgaon. The offences were invoked u/s 18(c) punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 (for the sake of brevity, hereinafter referred to as ‘the Act’). The complaint was filed by respondent No.2 against the applicant as well as other persons.
4. The prosecution’s case is as follows:-
(a) The complainant is a Inspector appointed u/s 21 and is authorized to institute prosecution u/s 32 of the Act.
(b) The accused No.1 is the Proprietor of M/s.Pragati Medical and General Stores situated at House No.245, Room No.1, First Floor, Tongaon, Tq.Bhadgaon, Dist.Jalgaon. Accused Nos.2 and 3 are persons illegally selling medicines from the shop of which the licence has already been cancelled.
(c) The complainant visited the premises of M/s.Pragati Medical and General Stores on 11.10.2012 to inspect the medical shop. At the time of inspection, the Proprietor of the shop Mr.Nitin Shankarrao Patil and Registered Pharmacist of the shop were absent.
(d) On 29.10.2012, the Licensing Authority issued show cause notice to the Proprietor of the shop. The reply dated 8.11.2012, was submitted by the Proprietor to the said show cause notice. The reply was not satisfactory. On 4.12.2012, the Licensing Authority cancelled the license of the said shop w.e.f.5.12.2012 and intimated about the same to the Proprietor vide letter dated 4.12.2012.
(e) On 27.12.2012, the complainant received information that the medicines are being sold from the said shop. On 28.12.2012, the complainant alongwith others visited the shop and it was noticed that the sale of medicine was going on. At the time of visit, accused no.3 was conducting business and he was about to close the shop. At the same, it was noticed that one patient was sitting outside the shop and he has purchased medicines from the shop. In view of the above, Muddemal was seized under Panchanama and Form 16 in the presence of Panchas.
(f) The key of the shop was with accused No.2. He is doing Allopathic practice of medicines in the premises and was conducting business with the help of accused No.3 for his own patient from the shop. The accused No.2 conducting business in connivance with accused No.1 i.e. Proprietor of the shop. The complaint was lodged on 18.2.2013.
(g) The learned Magistrate issued summons against the accused for the offences u/s 18(C) by order dated 22.3.2013.
5. The applicant has invoked the inherent powers of this Court and challenges the aforesaid proceedings on several grounds.
6. The learned counsel for the applicant submits that the applicant is a medical practitioner by profession and is running a hospital in the name of Ganesh Hospital, Bhadgoan since last 20 years. The accused No.1 is tenant of applicant No.1, who has been conducting his business viz. M/s.Pragati Medical and General Stores. It is submitted that the applicant is not concerned with the business of accused no.1 and has no connection with the said shop, except the fact that the premises is letout to the accused No.1. It is submitted that there is no evidence on record to substantiate that the business was conducted by accused No.2 in connivance with accused No.1 The order of process was therefore passed mechanically without application of mind. It is submitted that the prescription relied upon by the prosecution purportedly issued to patient Walmik koli does not show the name of the applicant as examining Doctor nor the name of the patient is reflected on the said prescription. It is therefore submitted that there is no substance in the allegation that the said person was patient of the applicant and had purchased the medicines from the said shop. The applicant i
