Mere presence at a drug shop does not establish liability for drug sales without pharmacist supervision; the burden of proof lies with the complainant to provide evidence of wrongdoing.

ORDER :

This Criminal Original Petition has been filed to quash the complaint laid by the Drug Inspector, in C.C.No.599 of 2024 taken on file by the VI Metropolitan Magistrate, Saidapet, Chennai.

2. On 30/09/2021, the Drug Inspector of Saidapet Range had conducted inspection of M/s Pradhan Mandri Bharthiya Janaushadhi Kendra, No:25/IB, New No:51, Ground Floor, West Jones Road, Saidapet West. At the time of inspection, the proprietor Mr.Kalidass and the registered Pharmacist Dhanalakshmi were not present. However, the person-in-charge Tmt.Sumathi, W/o Kalidass was selling drugs without personal supervision of the pharmacist. On further verification of records, purchase bills for the drugs, sale statement, prescription register and stock on hand of certain drugs found not maintained.

3. For the contravention of Section 18 (c) of the Drugs and Cosmetics Act, notice issued to the Proprietor Kalidass and then, the impugned complaint filed against Kalidass, the Proprietor and his wife Sumathi person in charge.

4. The Learned Counsel appearing for the petitioner Sumathi (A-2) submitted that, the petitioner is a home maker and not the person in charge of the shop. Since her husband had an urgent work, she was asked to come to the shop and look after, till his arrival. At the time of inspection, she had no idea for what the inspection and why she was asked to sign in the papers prepared by the Inspector. She had not sold any drugs as alleged. The bill Nos.7853 and 7856 were created on the direction of the complainant.

5. The Learned Counsel further states that, the petitioner is not involved in the affairs of the shop and she has given her reply to the show cause notice stating she is not person in charge of the shop and her husband Kalidass is the Proprietor and in-charge of the shop. In fact, her husband has given suitable reply for the show cause notice regarding maintenance of records and also produced the same to the complainant. Therefore, the petitioner being the wife of the Proprietor and her mere presence in the shop, will not make her liable for any prosecution under the Drugs and Cosmetics Act. The allegations of contravention are all answerable only by A-1, the Proprietor of the shop and not by his wife who was present temporarily in the shop.

6. In response to the petition, the respondent/complainant had filed the counter wherein it is stated that, on the day of inspection, Accused Al was not there at the shop, Accused A2 was present and Registered Pharmacist Dhanalakshmi, 11848 A1, was not attended the shop. Before commencing the inspection, the respondent asked the Accused A2 to summon the Accused Al to be present for the inspection. Accused A2 informed the respondent that since her husband is the District President-South Chennai of a well-recognized National Political Party, he could not attend the shop as well as inspection. Further she conveyed that she only was taking care of the shop and she would provide the details required for inspection. However, the respondent asked Accused A2 to connect Accused Al through phone call to confirm the same, as Accused Al is the proprietor of the shop. Accused A2 too conveyed/established the same thing over the phone. Therefore, the respondent carried out the inspection in the presence of Accused A2, as both Accused Al and Accused A2 established that Accused A2 is managing the purchase and sale activities of drugs on behalf of/with the consent of Accused A1.

7. It is further contended by the respondent that this petitioner had effected sale of certain drugs from Bill Nos:7853 and 7856 dated 30/09/2021 without the personal supervision of the pharmacist. According to the complainant, it is contravention of Section 18 (c) r/w Rule 65 (2) of the Drugs and Cosmetics Act, 1940 and the Rules 1945 punishable under Section 27 (d) of the said Act.

8. The details of the drug so sold is mentioned in Table I of the counter and it reads as below:-

Table 1

Details of few examples of sales without the perso