Non-compliance with inspection procedures under the Drugs and Cosmetics Act, 1940 is not fatal for prosecution in cases involving allegations of spurious drugs.

JUDGMENT :

Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding and the order dated 18.07.2022 passed by learned Additional Sessions Judge- II- Cum-Special Judge, CBI-cum- Special Judge, (Cyber Crime Cases & Electricity Act Cases), Dhanbad in connection with Misc. Criminal Application No. 1262 of 2022 arising out of Drugs and Cosmetics Case no. 01 of 2021 whereby and whereunder learned Additional Sessions Judge-II has rejected the application filed under Section 227 of the CrPC by petitioners for their discharge in the case.

3. The allegation against the petitioners is that the Drug Inspector seized one articles in the name and style of Phencyrex Cough syrup (100 ML) Batch no. 33097-SMB1, manufacturing date Sep. 2017, Expiry Date – August, 2019 manufactured by M/s Smilex Healthcare Pvt. Ltd. -54, EPIP-1, Jharmajri, Baddi-174103, Dist.- Solan, H.P., Licence no. – L/15/1665/MNB seized from the establishment/shop of the accused M/s Baba Medical Agency, Dhanbad, of which, undisputedly, both the petitioners are the partners and the allegation that said Phencyrex Cough syrup was having fictitious and fake label of M/s Smilex Healthcare Pvt. Ltd, as the said company on the date of alleged manufacturing; as mentioned in label was not in operation on the said address as mentioned in the label, thus it is alleged that the said drug sold by petitioners, was not the product of the alleged manufacturer. It is further alleged that M/s Baba Medical Agency, Dhanbad even though provided the purchase documents of the Phencyrex Cough syrup from M/s Megha Medical but M/s Megha Medicals denied issuing any such purchase documents of the medicines in favour of M/s Baba Medicals. Learned Special Judge, Drugs and Cosmetics Act, on the basis of the materials placed before it, took cognizance for the offences punishable under Section 27 (C ) and 27 (d) of the Drugs and Cosmetics Act, 1940 for violation of Section 17B (C) and 17 B (e ) read with Section 65 (5) (3) of Drugs and Cosmetics Act, 1940 inter alia against the petitioners. The petitioners filed a petition for discharge under Section 227 of CrPC contending therein, that since the manufacturer company did not conclusively state that the sample is actually a counterfeit drug hence, in depth examination of the same is required to reach any conclusion and the ground of the contention of the Drug Inspector, that M/s Smilex Healthcare Pvt. Ltd, did not manufacture the same, is based on incomplete and insufficient information but subsequently, the said M/s Smilex Healthcare Pvt. Ltd, has intimated that it manufactured the said drug and the Drug Control Administration of Himachal Pradesh also, after inquiry in the matter and detail investigation , submitted a report to the complainant by merely mentioning that the seized drug has been manufactured by M/s Smilex Healthcare Pvt. Ltd.

4. The learned Special Judge, considered that the seized Phencyrex Cough syrup, from the petitioners, was stated to be manufactured in September, 2017 but as per the report dated 23.08.2019, the Drug Inspector, Solan, Himachal Pradesh, M/s Smilex Healthcare Pvt. Ltd. 54, EPIP-1, Jharmajri Baddi-174103, has wound up its business and was no longer operational on the said address of plot no. 54 since the year 2016 and on the date of manufacturing vide ‘control sample’, the company was operational from plot no. 23 with the remaining address being same. The manufacturer also confirmed vide letter dated 03.10.2018 and 28.01.2019 that the said product was not manufactured by them. Learned Special Judge, also considered that bare perusal of the label of the ‘control sample’ and the label of the seized sample annexed with the record, it is apparent that not only the plot number mentioned on both the labels i.e. 23 and 54 is different but also in the warning portion of the labels, which is statutor