IMPORTANT POINT
Unauthorised sale of drugs and violation of license conditions – Section 468 of Cr.P.C. is not applicable.

ORDER (CAV)

Accused No.2 is before this Court under Section 482 of Cr.P.C. read with Section 528 of BNSS, 2023, with a prayer to quash the entire proceedings in CC No.369/2023 pending before the Court of Civil Judge and JMFC, at Laxmeshwar, Gadag District, arising out of PCR No.25/2023, registered for the offences punishable under Section 18(a)(vi) and Section 27(d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act of 1940’ for short).

2. Heard the learned counsel for the parties.

3. Facts leading to filing of this petition narrated briefly are, the Assistant Drugs Controller, Gadag Circle had filed a private complaint in PCR No.25/2023 before the Court of Civil Judge at JMFC, Laxmeshwar against accused No.1/Dr.S.C.Nekar @ Sri. Siddappa Channabasappa Nekar and the petitioner herein. The allegation in the complaint is that accused No.1, who was not a registered medical practitioner as provided under the Drugs and Cosmetics Rules, 1945, was running a clinic in the name ‘Sanjeevani Clinic’, at Laxmeshwar in Gadag District and though he did not possess any drug licence to sell the stock or exhibit any drug, he was purchasing allopathy drugs from accused No.2 and was dispensing the same to the patients, who came to his clinic. Accused No.2, who is the proprietor of M/s. Kadli Pharma situated at Ashwini Nagar in Haveri Town, is a holder of Form 20B and Form 21B license issued by the Assistant Drugs Controller, Haveri Circle. As per condition 3(ii) found in Form 20B license and condition 4(ii) found in Form 21B license, no sale of any drug shall be made to a person not holding the requisite license to sell, stock or exhibit for sale or distribute the drug. The allegation against accused No.2 is that in violation of his license conditions, he had supplied allopathic drugs to accused No.1 and therefore, he was liable to be prosecuted for the aforesaid offences. The learned Magistrate after taking cognizance of the alleged offences against accused Nos.1 and 2, had issued summons to them. Being aggrieved by the same, accused No.2 is before this Court.

4. Learned counsel for the petitioner submits that maximum punishment for the alleged offences against petitioner is imprisonment for a period of two years. The complaint filed against the petitioner is therefore, barred by limitation in view of Section 468 of Cr.P.C. He submits that Gazette Notification as provided under Section 21 of the Act of 1940 appointing the complainant as Inspector is only for Shivamogga Circle. Subsequently, the complainant was transferred to Gadag Circle and Notification as provided under Section 21 of the Act of 1940 appointing the complainant as an Inspector for Gadag Circle, for the purpose of Section 21 of the Act of 1940, is not issued. It is only an Inspector notified as provided under Section 21 (1) of the Act of 1940, can initiate proceedings for the offences punishable under the Act of 1940. In support of his arguments, he has placed reliance on the following judgments:-

(i) State of Maharashtra vs. R.A. Chandawarkar and Others reported in 1999(2) Mh.L.J.650

(ii) Marc laboratories Limited and Others vs. Union of India reported in 2019 SCC OnLine HP 2825

(iii) The order passed by this Court in the case of Sri. S.A. Kishore vs. State by Drug Inspector in Crl.P. No.5292/2010 disposed off on 09.04.2013

(iv) The judgment of the Hon’ble Supreme Court in the case of Miteshbhai J. Patel and Another vs. The Drug Inspector and Another in SLP(Crl.)No.3662-3663/2024.

5. He further submits that in view of Section 32 of the Act of 1940, only an Inspector as defined under Section 21 of the Act of 1940 could have filed a private complaint and no Court inferior to the Court of Sessions Court can entertain such complaint. Therefore, impugned criminal proceedings based on the complaint filed before the jurisdictional Magistrate is bad in law. Accordingly, he prays to allow the petition.

6. Per contra, learned HCGP submits that the offences a