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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Neena Gupta and Another – Petitioners
Versus
UT of Ladakh – Respondent
CRM (M) Nos. 01 of 2021, 254 of 2020
Decided On : 04-08-2022
Drugs and Cosmetics Act - Criminal Proceedings - Section 18(a)(i), Section 27(d) - Summary of Acts and Sections: The court discussed the provisions of Section 34 of the Drugs and Cosmetics Act, which holds every person responsible for the conduct of the business of the company guilty of the offence committed by the company. It also analyzed Section 19(3) which outlines the conditions under which a person, not being the manufacturer, shall not be liable for a contravention of Section 18. The court highlighted the burden of proof on the concerned dealer and emphasized the importance of proper storage of drugs. The interpretation of these provisions influenced the court's decision to quash the criminal proceedings against the petitioners.
Fact of the Case:
The petitioners challenged a complaint filed against them alleging offences under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940. The complaint was related to the substandard quality of a drug found in their possession as dealers.
Finding of the Court:
The court found that the impugned complaint did not specifically attribute any role to one of the petitioners and that there was no evidence that the drug in question was not stored properly by the petitioners. The court concluded that the continuation of the criminal proceedings against the petitioners would be an abuse of process of law.
Issues: The issues raised included the lack of specific allegations against the petitioners in the complaint and the absence of any mention of improper storage of the drug by the petitioners.
Ratio Decidendi: The court held that the provisions of Section 34 of the Drugs and Cosmetics Act are applicable to a partnership firm and emphasized the importance of proving proper storage conditions as outlined in Section 19(3) to avoid liability for contravention of Section 18.
Final Decision: Both the petitions were allowed, and the impugned complaint and the proceedings against the petitioners were quashed.
JUDGMENT :
SANJAY DHAR, J.
1. 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:
(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 ass
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.
Provisions of Section 34 of Drugs and Cosmetics Act are also applicable to a partnership firm.
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.
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....
In exercise of jurisdiction under Section 482 of Code of Criminal Procedure this Court will not venture into the merits of sallegations and counter-allegations levelled by complainant and accused.
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.
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.
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