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JAMMU AND KASHMIR HIGH COURT
Sanjay Dhar, J.
Neena Gupta and Anr. – Petitioners
versus
UT of Ladakh – Respondent
CRM(M) No.1 of 2021 C/W CRM(M)
No.254 of 2020
Decided on 4.8.2022
Drugs and Cosmetics Act, 1940 – Section 18(a)(i) read with Section 27(d) – Criminal Procedure Code, 1973 – Section 482 – Seizure of drug of sub-standard quality – Petitioners have been impleaded as accused in their capacity as dealers of drug in question – In absence of any other partners of firm, petitioner cannot put up a case that she is not responsible for conduct of business of firm of which she happens to be sole proprietor – Provisions of Section 34 of Drugs and Cosmetics Act are also applicable to a partnership firm – Complaint does not attribute any role to petitioner – Complainant, after investigation of case, has found that manufacturer of drug in question has breached provisions of Act by manufacturing and distributing not of standard quality drug – Drugs Inspector, after investigation, has found that there is no evidence that drug in question was not stored in a proper condition by petitioners – Once it is shown from material on record that conditions mentioned in Section 19(3) of Drugs and Cosmetics Act have been satisfied by petitioners, they could not have been prosecuted by Drugs Inspector – Continuance of criminal proceedings on the basis of impugned complaint against petitioners would be abuse of process of law as there are no chances of their conviction on the basis of allegations made in impugned complaint – Impugned complaint and proceedings emanating therefrom as against petitioners quashed. (Paras 7, 8, 13, 14, 15 and 16)
Result: Petitions allowed.
JUDGMENT
By this common judgment, the afore-titled two petitions filed under Section 482 of the Cr. P. C, are proposed to be disposed of.
2. Through the medium of both these petitions, the petitioners have challenged the complaint filed by the respondent against them alleging commission of offences under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940, which is stated to be pending before the Court of Chief Judicial Magistrate, Kargil.
3. A perusal of the record reveals that the respondent Drugs Inspector, Kargil, has lodged the impugned complaint against the petitioners and co-accused alleging that sample of the drug Tablet Uspas Forte collected from the shop of accused Nissar Ali was found to be not of standard quality. After completion of the necessary formalities and investigation, the Drugs Inspector lodged the impugned complaint against said Nissar Ali as well as against other accused in their capacity as distributors, dealers and manufacturers. Petitioner Arun Gupta, as per the complaint, is the competent person of M/S Janta Medical Hall, Pharmaceutical Distributor, Jammu and petitioner Neena Gupta is stated to be the proprietor-cum-Competent person of M/S S.P.G Pharmaceuticals, Sector 1A, Extension Bhalla Enclave-101, Channi Himmat, Jammu. Both the petitioners have been impleaded as accused in their capacity as dealers of the drug in question.
4. In order to challenge the impugned complaint and the order whereby process has been issued by the learned trial Magistrate against the petitioners, they have raised several grounds but the two grounds which have been highlighted by learned counsel for the petitioners during the course of arguments are as under:—
(I) That there are no specific allegations against the petitioners in the impugned complaint as it is not stated in the complaint that the petitioners are the persons responsible for the conduct of the business of the firms of which they are alleged to be the representatives;
(II) That there is no allegation against the petitioners in the impugned complaint that the drug in question was not properly stored by them;
5. The respondent Drugs Inspector has filed his reply to the petitions in which, besides narrating the facts mentioned in the impugned complaint, it has been contended that disputed questions of fact have been raised in the petitions which cannot be adjudicated upon in proceedings under Section 482 of the Cr. P. C. The official respondent has denied all the allegations and grounds urged by the petitioners in their petitions and claimed that these averments and contents are inconsistent. It has been further claimed that the contents of the impugned complaint clearly disclose commission of offences against the petitioners.
6. Heard learned counsel for the parties and perused the material on record including the trial court record.
7. So far as the first ground that in the impugned complaint it has not been mentioned that the petitioners are responsible for the conduct of business of the firms, is concerned, the said contention is not available to petitioner Neena Gupta because she, as per her own showing, happens to be the proprietor of the firm, meaning thereby that it is a sole proprietorship concern. Therefore, in the absence of any other partners of the firm, she cannot put up a case that she is not responsible for the conduct of business of the firm of which she happens to be the sole proprietor.
8. The contention of the petitioner Arun Gupta in the above context appears to be well-founded. As per Section 34 of Drugs and Cosmetics Act, where an offence under the Act is committed by a company, every person who at the time the offence was committed, was in charge of and was responsible to the company for conduct of the business of the company as well as the company shall be deemed to be guilty of the offence. Explanation to the said provision provides that company means a body corporate and it includes a firm or other
Provisions of Section 34 of Drugs and Cosmetics Act are also applicable to a partnership firm.
The central legal point established in the judgment is the importance of proving proper storage conditions to avoid liability for contravention of Section 18 of the Drugs and Cosmetics Act.
Point of Law - In fact, there is no bar to sending a sample of drug for test/analysis directly to CDL without first sending to the Government Analyst. This is clear from the bare language of the Sect....
Under Section 34 Drugs and Cosmetics Act, company offence liability presumes against nominated responsible person and firm; other officers require specific role allegations, not mere designations.
Distributors of drugs are not liable for quality issues if they prove acquisition from a licensed manufacturer and proper storage, as per Section 19(3) of the Drugs and Cosmetics Act.
Directors of a company not involved in drug manufacturing cannot be held liable under the Drugs and Cosmetics Act absent specific evidence of their responsibility for the conduct of business.
The main legal point established in the judgment is that specific and clear averments regarding the role and responsibilities of the accused in the commission of the offence are necessary to establis....
Preliminary inquiry under S.202 of the CrPC is mandatory before issuing process against accused residing beyond territorial jurisdiction.
Trial court cannot issue process without preliminary inquiry under Section 202 of the CrPC when the accused resides outside jurisdiction. Non-compliance renders proceedings illegitimate.
Cognizance of offences under the Drugs and Cosmetics Act requires adherence to procedural mandates, especially under Section 202 of Cr. P. C when the accused is beyond jurisdiction.
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