Unexplained inordinate delay can be fatal to a prosecution case, and individuals involved in the day-to-day affairs of a company can be held liable for contraventions under the Drugs and Cosmetics Act.

JUDGMENT

(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. praying to call for the records in CC No. 151 of 2020 on the file of the learned Chief Judicial Magistrate Court at Thiruvallur and to quash the same.)

1. This petition has been filed to quash the proceedings in C.C.No. 151 of 2020 on the file for the learned Chief Judicial Magistrate court at Thiruvallur and to quash the same.

2. The respondent lodged a complaint for the contraventions under Section 18(c) of the Drugs and Cosmetics Act, 1940 read with rule 65(3)(1) and 65(2) of the Drugs and Cosmetics Rules, 1945 punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940.

3. On 08.03.2018, an inspection was conducted in the petitioners Hospital. During the inspection, it was noticed that the prescription register was not maintained properly and the drugs were supplied without prescription and without the personal supervision of Pharmacist. Therefore, a show case notice was issued to the petitioners. On receipt of the same, the petitioners sent a reply notice and without satisfying the reply submitted by the petitioners, the respondent lodged a complaint.

4. The learned counsel for the petitioners would submit that so far as the first and second petitioners are concerned, they are no way connected with the medical shop and there are no specific averments as of the role played by the first and second petitioners. The complaint also does not reveal about the day to day affairs of the business activities of the first petitioner. Therefore, the complaint itself lacks the vital material fact to make out a prima-facie case for the criminal prosecution. In the complaint, there is no allegation as to whether the first and second petitioners are in charge of and are responsible for the conduct of the business of the shop under Section 34 of the Drugs and Cosmetics Act, 1940.

5. The learned counsel for the petitioners would further submit that if the offences is committed by the person in charge and the said person only responsible in the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence. A person merely being a Director of a company will not be sufficient to make him liable for an offence, unless he is responsible and in charge of the day to day business activities of the company. He further submitted that so far as the third petitioner is concerned, the complaint itself is barred by limitation. In respect of the contraventions mentioned, the respondent issued a show case memo on 28.12.2018 and an inspection was made on 08.03.2018. Therefore, this showcause notice itself was issued after a period of nine months. Immediately on receipt of the said showcause notice, the petitioners were sent reply on 07.01.2019. Thereafter, the complaint was lodged only on 31.10.2019. Therefore, there was a huge delay for initiation of prosection as against the petitioners.

6. In this regard, the learned counsel for the petitioners relied upon the judgement of the Hon'ble Supreme Court of India reported in MANU/SC/1639/2022 in the case of Hasmukhlal D.Vora and ors. Vs. The State of Tamilnadu, in which the Hon'ble Supreme Court of India held as follows:

“ 23.There has been a gap of more than four years between the initial investigation and the filing of the complaint, and even after lapse of substantial amount of time, no evidence has been provided to sustain the claims in the complaint. As held by this Court in Bijoy Singh and Anr. v.State of Bihar MANU/SC/033/2002 : (2002) 9 SCC 147, inordinate delay, if not reasonably explained, can ben fatal to the case of the prosection. The relevant extract from the judgment is extracted below:

Delay wherever found is required to be explained by the prosection. If the delay is reasonably explained, no adverse inference can be drawn, but failure to explain the delay would require the Court to minutely examine the prosection version for ensuring itself as t