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IN THE HIGH COURT OF ALLAHABAD
PRASHANT KUMAR, J.
Yashpaul Chail - Applicant
Versus
State of U.P., Thru Inspector of Drug Muzaffarnagar - Opposite Party
Application U/S 482 No. 5786 of 2016
Decided On : 16-02-2024
Drugs and Cosmetics Act - Quashing of Proceedings - Sections 18/27
Fact of the Case:
A complaint was filed alleging that the drug samples taken from a distributor were not of standard quality. The accused, a former director of the manufacturing company, sought to quash the proceedings, citing non-compliance with statutory provisions and his resignation from the company.
Finding of the Court:
The court found that the inspector had not followed the mandatory provisions of the Drugs and Cosmetics Act in taking and handling the samples. It also acknowledged the resignation of the accused from the company, concluding that the proceedings against the accused were an abuse of legal process.
Issues: Non-compliance with statutory provisions, liability of a former director for the company's actions, and abuse of legal process.
Ratio Decidendi: The court held that the proceedings were quashed due to non-compliance with statutory provisions and the accused's resignation from the company, which absolved him of liability.
Final Decision: The court quashed the entire proceedings of the complaint case against the accused.
JUDGMENT :
1. Heard Sri Akhilesh Chandra Shukla, learned counsel for the applicant, Sri Sudhir Kumar Chandraul, learned AGA for the State and perused the record.
2. The instant application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Complaint Case No.1036 of 2014 (State Vs. Yashpal Chail and others) under sections 18/27 of the Drugs and Cosmetic Act, P.S. Kotwali, District Muzaffar Nagar pending in the Court of C.J.M., Muzaffarnagar.
3. Facts of the case are that a complaint under Section 32 of the Drugs and Cosmetics Act, 1940 (for short "Drugs and Cosmetics Act") was filed in the Court of Chief Judicial Magistrate, Muzaffar Nagar on 25.02.2014 alleging that while discharging official duties the complainant took samples of three drugs for test and analysis from the premises of M/s Kumar Medicine Distributors and the Government Analyst vide report dated 09.07.2013 declared that the sample of the drug was not of standard quality. For ready reference relevant portion of the report is quoted hereunder:-
Ofloxacin Tablets I.P. (Eloflox-200) B. No.-B123445, M/D-11/2012, E/D-10/2014, Mfd by - M/s Elmac Remedies Pvt. Ltd., Plot No.-202-3, Vill - Kotha, Post Lalitpur, Kichha Road, Rudrapur, Uttrakhand.
"The sample does not conform to the declared formula in respect of Assay."
Assa- Content of Ofloxacin 81.56%w/w/ of the stated amount of drug in each tablet of average weight which is less than the minimum I.P. limit of 90% w/w."
4. On being asked he stated that he has purchased medicines from the distributor, M/s Onida Health Care, C-7, Meerut Road, Industrial Estate Ghaziabad and on being asked from this distributor, it was informed that the medicines were manufactured by M/s Elmac Remedies Private Limited.
5. After investigation was completed, the report along with the recommendation of the Drug Licensing Authority was filed. Since there was a breach of Section 18A of Drugs and Cosmetics Act, the complaint under Section 32 of the Drugs and Cosmetics Act was filed before the Chief Judicial Magistrate, Muzaffarnagar, who took cognizance on the complaint and issued summons on 27.02.2014 against the accused including the applicant.
6. Learned counsel for the applicants submitted that, the show cause notice was sent to the manufacturing company on 23.08.2013 but no compliance of Section 23 (3), (4) and 25(3) of the Drugs and Cosmetics Act was made as the Drug Inspector was supposed to make four samples, but he failed to do so. For ready reference Section 23 (3), (4) and 25(3) of the Drugs and Cosmetics Act are quoted hereunder:-
Where an Inspector takes a sample of a drug or cosmetic for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked:
Provided that where the sample is taken from premises whereon the drug or cosmetic is being manufactured, it shall be necessary to divide the sample into three portions only:
Provided further that where the drug or cosmetic is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug or cosmetic be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same and, where necessary, sealing them.
Section 23 (4)
The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows:—
(i) one portion or container he shall fort
Non-compliance with statutory provisions and resignation of the accused from the company absolved him of liability, leading to the quashing of the proceedings.
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