Point of Law: Prohibition of manufacture and sale of certain drugs and cosmetics - Quashment of complaint - Very fact of selling this drug as one of ingredients in Ozomen capsule and not displaying name in prescribed manner in drugs will also constitute an offence under Section 18 (a), (b) & (c) punishable under Section 27(b) (ii).

ORDER :

1. Inherent jurisdiction of this Court under Section 561-A (Section 482) is being invoked by the petitioner for quashment of complaint titled as “Drug Inspector (HQ) Vs. Rajinder Kumar Sharma and others” pending before the Court of learned Chief Judicial Magistrate, Udhampur (for brevity “trial Court”).

2. The petitioner claims to be the proprietor of M/S Santoshiba Herbs India having its registered office at Sector -27-28, Industrial Area, Hisar, Haryana. The said concern of the petitioner is stated to be possessed of a license under License No. 387-ISM (HR) for manufacturing Ayurvedic Drugs granted under and in terms of the Drugs and Cosmetics Act of 1940 and Drugs and Cosmetics Rules, 1945 (hereinafter for short “the Act and the Rules”).

3. A criminal complaint is stated to have been filed in the Court of learned Chief Judicial Magistrate Udhampur by the respondent No. 1 against the petitioner herein, besides M/S Aee Dee Enterprises and one Rajinder Kumar Sharma, proprietor of M/s Sudesh Pharmaceuticals, Main Bazar, Udhampur for having committed offences under Sections 18 (a) (i) read with Section 27 (b) (i) [for manufacturing sale and distribution of an adulterated drug, Sweet Night Capsules (Batch No. SN-112)] and Section 18(c) read with Section 27(b) (ii) of the Act.

4. The precise allegation levelled in the said compliant against the accused persons (including petitioner herein) is that on 09.07.2010, upon visit to the premises of respondent No. 3, he was found to have stocked and exhibited drugs for sale in his premises including a Drug, namely, “Sweet Night Capsules” (Batch No. SN-112), Mfg. dt. Jan 2010 with Exp. Dt. Dec 2014 manufactured by the concern of the petitioner herein. Upon lifting of sample of drug in question by the complainant-respondent No. 1 herein, in accordance with the provisions of the Act and Rules had send one sealed sample of drug in question to Government analyst (C.F.D.L. Patoli Jammu) which found that the sample in question not of standard quality as defined in the Act and further that the same contained a drug namely “Sidenafil Citrate”.

5. Upon presentation of the complaint in question before the Trial Court, cognizance came to be taken by the trial Court in terms of order dated 03.02.2012 where under the trial Court had been prima facie satisfied that the accused persons appear to have committed the offences punishable under Section 18 (a) (i) read with Section 27 of the Act.

6. The complaint and proceedings undertaken thereof by the trial Court are being challenged in the instant petition, inter alia on the grounds which are in extenso, extracted and reproduced here under:-

(I) FOR THAT throughout the length and breadth of the petition of complaint there is no reference to the actual role played by the petitioner in the alleged offence which is the subject matter of the instant case and in the absence of any such specific role being attributed to the petitioner the said petitioner cannot be made an accused person merely on the ground that he is the proprietor.

I (A) That sanctioning authority i.e. controller Drugs and Food Control Organisation have not applied his mind before granting sanction for prosecution in the present case, it is submitted that vide report dated 26.02.2011 the Govt. Analyst declared the Drug in question to be of not of Standard Quality further in review opinion dated 06.03.2011 declared the Drug in question to be adult rated. Further the sanctioning authority without perusing the proper record have given the sanction for launching the prosecution for not of standard quality, the investigating authority and the sanctioning authority have confused themselves about the offence committed by the petitioner herein without proper application of mind reports are drawn by analyst and sanction is given without verifying record. Hence complaint is liable to be quashed.

(II) FOR THAT continuation of the proceeding against the petitioner is illegal, without jurisdiction and liabl