Manufacturing bleaching powder not intended for medicinal use is exempt from licensing under the Drugs and Cosmetics Act, 1940.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. This petition has been filed for quashing of the entire criminal prosecution against the petitioners in C.G. Case No. 3 of 2013, including the order taking cognizance dated 11.07.2013, pending in the court of learned Judicial Magistrate, First Class, Palamau at Daltonganj.

2. The complaint case has been filed alleging therein that on 2.7.2013 O.P.No. 3 filed a complaint petition being C.G. No. 3 of 2013 in the court of Chief Judicial Magistrate, Palamau at Daltonganj against the company namely Aditya Birla Chemicals (India) Limited and petitioner that is factory manager namely Ram Dahin Sao the accused no. 1 alleging therein that there is a plant of the said accused no. 2 at Rehla Garhwa. It is further alleged that an information has been received by the said opposite party no. 3 that in the said plant bleaching powder which is a drug is being manufactured, sold and distributed. It has been further alleged by the O.P.No. 3 that such bleaching powder was being packed in 25 kg jute bag and 25 kg drum of tin which was labelled as stabilized bleaching power. It has been further alleged that he wrote a letter to the accused no. 2 that is M/s Aditya Birla Chemical (India) Limited mentioning there that bleaching powder is a drug under section 3(b) of the Drugs and Cosmetics Act 1940 and the rules framed thereunder and as per section 18(c) of the Act a manufacturing license in form 25 of schedule A of the rules is required for manufacturing a drug for sale and asked the said company to inform as to whether a drug manufacturing license in form 25 has been granted to the said company by the State Drug Licensing Authority, Jharkhand and if not then why legal action should not be initiated against the said company for manufacturing drugs without license. It is further alleged that factory manager of the said company informed that O.P.No. 3 is not allowed to do inspection and collect the sample of bleaching power and obstructed the Drug Inspector in discharge of his duties and contravened the provisions of section 22(3) of Drugs and Cosmetics Act, 1940 and have violated provisions of section 18(c), 22(3), 27(b), 36 AC (a) and 36 AC (b) of Drugs and Cosmetics Act, 1940.

3. Mr. Pathak, the learned counsel for the petitioners submits that petitioner in Cr.M.P. No. 1624 of 2016 is the Manager of the company and the petitioner in Cr.M.P. No. 1626 of 2014 is the company. He further submits that the letter dated 29.12.2012 contained in Annexure 12 in the complaint petition was received by the petitioner company and the detailed representation is filed on 4.1.2013 by way of Annexure 13 and 14 of the complaint petition to the O.P.No. 2 and also the representation dated 15.4.2013 to the State Drug Controller, Jharkhand categorically stating that bleaching powder does not fall under the category of drugs and cosmetics and hence, no license is required under the said Act and the Rules of manufacturing bleaching power and the bleaching powder is the chemical. He submits that without considering the said representation the complaint case is filed. He further submits that the learned court has failed to appreciate that section 18 of the Drugs and Cosmetics Act, 1940 mandates that a license has to be obtained for the purpose of manufacturing any substance i.e. drug under the Act is not at all applicable and in view of that the said company and in view of that the Drugs and Cosmetics Act provides special provision which exempts the manufacturer from Chapter IV of the Act and thereby permits the manufacturer without obtaining the license and the said company is not manufacturing bleaching powder for medicinal use and to buttress his argument, he refers to Rule 123 of the Drugs and Cosmetics Rules, 1949 and submits that in view of Schedule -K the company is exempted from the said Act. He submits that however the company is operating after having the factory license and the NOC from Pollution Control Board and other statutor