The main legal point established in the judgment is that the inherent powers of the High Court should be exercised sparingly and with caution, and that the complaint disclosed a cognizable offence under the Drugs and Cosmetics Act 1940. The court also emphasized the importance of following the prescribed procedures and legal requirements for initiating a prosecution under the Act.

JUDGMENT :

1. Petitioners are aggrieved of the Order dated 09.04.2014 passed by learned Sessions Judge under TADA/POTA (Designated Court under Drugs and Cosmetics Act 1940) (hereinafter referred to as “Trial Court”) in a complaint titled as State through Drug Inspector, Zone – III Srinagar Vs. Sanjay Ahuja and others, in which the Trial Court has taken cognizance and issued process against the accused. The Trial Court order is being challenged on the following grounds:

i) The complaint has been filed by the State through Drug Inspector Zone-III, Srinagar, under Section 17-B (e), 18(A) and 18 (B) read with Sections 27(c), 28 and 28(A) of Drugs and Cosmetics Act, 1940 (for short “the Act”) and Rules made thereunder, as such, the order dated 09.04.2014 is to be quashed particularly when petitioners are neither manufacturers nor have, they manufactured the items seized nor have they supplied it to the Institution purporting that the product is theirs. In view of the complaint, petitioners have never been asked to disclose the name of the manufacturer nor they are the custodians of the record. In fact, they have not been questioned at all which is clear from the contents of complaint, still they have been arrayed as accused and that too without there being roping of offences.

ii) Under Section 27(c), the punishment is provided for using of Spurious Drugs and in view of the complaint, involvement of the accused No.1, who has supplied the item (Bandage) to the Institution and received the payments which is made out and by no stretch of imagination the petitioners can be said to have committed the offence, still the court has issued the process against them by holding that they have committed the offence, as such, the order dated 09.04.2014 is bad in law and liable to be set aside. Section 28 of the Act provides penalty for non-disclosure of the name of the manufacturer etc. whereas Section 28-A says for not keeping the document.

iii) Nowhere in the complaint, the complainant has mentioned that he enquired from the petitioners as to who had manufactured the seized items nor were petitioners the custodians of the record. They did not keep the record or did not disclose the information with regard to items seized as provided under Section 18-B. In absence of any such statement in the complaint, no offence is made out, as alleged, against the accused persons. Furthermore, the complaint does not rope any of the petitioners for the offences along with the rest of the accused persons, namely, Sanjay Ahuja and Syed Ahmad, therefore, the cognizance so taken against the petitioners by the trial court is void ab-initio.

iv) Section 32 of the Act provides that no prosecution under this Chapter shall be initiated except by Inspector or by person or by a recognized consumer association, whether such person is a member of that association or not. Section 32 of the Act, itself is not an offence, as mentioned by the complainant in Para 18 of the complaint which reveals that the trial court has not applied its mind to the facts of the complaint and issued the process in a routine manner.

v) Section 17-B of the Act defines spurious drug does not bring within its ambit any sample, which fails, in weight in grams. There is nothing in the schedule which provides that the bandage should be of standard quality if it weighs so much nor it is provided by the expert-drug analyst as to what should have been the weight and how much the items was found less in the weight. In absence of this, the item, which was seized from the Institute of Medical Sciences, Soura, Srinagar, cannot be termed as spurious drug and no complaint, as such, can be maintained.

vi) Under the Guidelines as per the Enhanced Penalties under the Drug and Cosmetic (Amendment) Act 2008 of Category "C" for formulation failing in weight variation as declared to be the minor defect and has to be ignored. The guideline Category "C" which deals with minor defects read as under:

i. Broken or crippled tables

i