A retailer is not liable for the sale of adulterated or spurious drugs if he takes all reasonable care in checking the product before selling it and if the adulteration or spuriousness is due to the fault of the manufacturer.

( 1 ) THIS revisional application preferred by the petitioner under section 482 of the Code of Criminal Procedure (in short Code) is for quashing the criminal proceeding being G. R. Case No. 370/04 arising out of Mahisadal P. S. Case No. 76 dated 9. 7. 04 under sections 274 and 275 of the Indian Penal Code (in short ipo and under section 27 of the Drugs and Cosmetics Act (in short Act), 1940 now pending in the Court of the learned Sub-Divisional Judicial Magistrate (in short SDJM), Haldia.

( 2 ) THE prosecution case was started on the basis of First Information Report (FIR) lodged by Srikanta Maity at the Mahisadal P. S. on 9. 7. 04 at 8. 05 p. m. It was alleged in the FIR that on 6. 7. 04 the informant purchased one phial/bottle of syrup named 'bexitone' from Samanta Medical, a medicine shop owned by the petitioner at Mahisadal. After reaching house the informant opened the packet of the said syrup and found inside the bottle/phial a dead frog was floating. He showed the bottle containing the floating dead frog to local people, and thereafter, without breaking the seal and opening the bottle he came to the police station and lodged FIR against this petitioner and on the basis of it the aforesaid Mahisadal P. S. case was started.

( 3 ) MRS. Pronoti Goswami, learned Advocate for the petitioner submitted that the informant did not produce any cash memo for purchase of the said medicine. The FIR and the other materials do not disclose that the seized bottle/phial of syrup was adulterated as defined in section 17a of the Act. It was not established that the seized bottle of syrup contained any spurious drug as defined in section 17b of the Act. The provisions of section 27 of the Act do not apply at all against the petitioner. The bottle was inside a paper packet which was duly sealed and being so it was not possible for petitioner to know inside contents of the bottle. The petitioner did not sale any adulterated or spurious drug to the informant. The allegations in the FIR can give rise to a suit for damages but, no criminal liability arise against the petitioner. The expert opined that the sample of 'bexitone' was of standard quality. The frog might have entered inside the bottle at manufacturing point and manufacturer may be responsible for the incident and the petitioner is not at all liable in this matter. In support of her contention she cited the decision of Donoghue vs. Stevenson, reported in 1932 A. C. 562 : All england Law Reports Reprient Pg. 1. Mrs. Goswami submitted that the police should have started investigation against the manufacturer instead of starting investigation against the petitioner, who is a retailer only. There is no element of any cognizable offence against this petitioner. Continuation of this proceeding against the petitioner would be an abuse of the process of Court and being so the impugned criminal proceeding should be quashed.

( 4 ) ON the contrary, Mr. Roy appearing for the State submitted that the petitioner as a retailer sold the bottle of syrup to the informant and this is admitted position. 'bexitone' syrup produced by the informant was seized by police and was sent to the State Drugs Control and Research Laboratory at calcutta. The Government Analyst after examining the said sample bottle and contents therein opined that the sample referred to above is not of standard quality. The report of Government Analyst makes out a prima facie case against the petitioner that he sold adulterated drug to the informant. Accordingly, there are sufficient materials to submit chargesheet in this case. Let the trial be proceeded with and on the basis of evidence let the fate of the case be decided. At this stage there is no ground for quashing the criminal proceeding.

( 5 ) I have duly considered the submissions made by the learned Advocates of the parties and perused the revisional application. It is admitted that the informant purchased one bottle/phial of 'bexitone' syrup from the med