Proper arraying of the accused in a complaint is essential for prosecution under the Drugs and Cosmetics Act, 1940.

JUDGMENT :

1. The petitioner, through the medium of present petition, has prayed for the following reliefs:

I By a writ of certiorari

A. The permission for launching prosecution granted vide order No. DFO/D-T/1278/193-95 dated 11.04.2014 by respondent no. 2 may be quashed.

B. The order of the Learned Chief Judicial Magistrate, Budgam, taking cognizance of the complaint titled State through Drug Inspector v. M/S Tulbross Formulations and others, dated 22.07.2014 in complaint No. 27/ may also be quashed.

C. The complaint may be accordingly quashed in the interests of justice.

II. By a writ of mandamus, The Amending Act 19 of 1972, whereby the Drugs and Cosmetics Act, 1940 was extended to the State of Jammu & Kashmir be declared ultra vires as violative of Article 370.

2. At the very outset, learned counsel for the petitioner submitted that the petitioner shall not press the challenge thrown to the Amending Act of 1972, whereby the Drugs and Cosmetics Act was extended to the then State of Jammu and Kashmir.

3. It is stated that the petitioner is the Managing Director of M/S R. B. Remedies Private Limited. The Court of Chief Judicial Magistrate, Budgam (for short ‘the trial court’), has taken the cognizance of the complaint under Section 18(a) and 18(b) of Drugs and Cosmetics Act, 1940, and issued the process against the petitioner as well as other accused vide order dated 22nd July, 2014. It is also stated that during the investigation, the matter was referred to respondent No.4 by the complainant and simultaneously a show cause notice was issued to the petitioner. Pursuant to the investigation conducted by respondent No.4, the product was not found to be sub-standard as alleged in the complaint. Respondent No.4 vide communication dated 16th May, 2014, sent the appraisal report to the complainant i.e. respondent No.3 but despite the findings which dispelled the allegations levelled in the complaint, the permission for prosecution was granted by respondent No.2.

4. The petitioner has impugned the complaint on the ground that in the complaint the petitioner has neither been implicated by name nor any role has been attributed to him in managing the affairs of the company or being responsible in any manner for the conduct of its business. In the complaint, respondent No.3 has accused not only the Managing Director, business partners but also the technical staff of the petitioner company without demonstrating as to how the Managing Director of the company was in-charge of and responsible for the conduct of business of the company which is essential pre-requisite for initiating any process against the petitioner. It is also urged that once M/S Tulbross Formulations, Uttarakhand has been exonerated by respondent No.4 under the same set of circumstances, no complaint could have been filed even against the petitioner.

5. Respondents have filed their response. Respondents No.1 to 3 in their reply have raised a preliminary objection regarding maintainability of the writ petition. It is further stated that a sample of Repzole capsule was lifted by the Drug Inspector from Lone Medical Agency at Magam and the Drug Analyst vide report dated 29th June, 2013, declared the said drug as not of standard quality. It is further stated that the constitution of the company was not disclosed, therefore, mentioning the name of the petitioner in the complaint was not possible and the complaint was filed in the name of Managing Director. It is also stated that if the petitioner was aggrieved of the test report, he should have challenged the same within the time prescribed under the Act and having not done so, the petitioner is estopped from maintaining the instant writ petition. It is also averred that the petitioner has himself replied the communications to the answering respondents and, as such, the petitioner is responsible and no other person from M/S R. B Remedies can be made responsible or implicated.

6. Respondent No.4 in his reply has stated that th