JUDGMENT

1) Through the medium of this judgment, afore-titled two petitions filed under Section 482 of the Cr. P.C. are proposed to be disposed. In both these petitions, the petitioners have challenged the complaint filed by the respondent-Drugs Inspector, Doda against them alleging commission of offence under section 18(a)(i), read with section 27 (c) of the Drugs and Cosmetics Act, 1940 (hereinafter to be referred as the Act), which is stated to be pending before the Court of Chief Judicial Magistrate, Doda.

2) It appears that the respondent, Drugs Inspector, Doda, has lodged the impugned complaint against the petitioners and co-accused alleging therein that the sample of drug “Handloom Cloth Rolled Bandage, Batch No. 24 date of manufacturing August/2010, date of expiry February/2014” collected from the shop of the petitioner/accused, Khalid Bashir was found to be not of standard quality. After completion of the necessary formalities and investigation, the Drugs Inspector lodged the impugned complaint against the petitioner, Khalid Bashir, retailer, M/s Sundaram Surgicals, manufacturer and other co-accused in their capacity as distributors and dealers.

3) As already noted, the petitioner, Khalid Bashir has been impleaded as an accused in his capacity as a retailer, whereas the petitioner, M/s Sundaram Surgicals has been impleaded as an accused in its capacity as manufacturer of the drug in question.

4) The petitioners have challenged the impugned complaint as also the order, whereby the process has been issued by the learned trial Magistrate against the petitioners, on various grounds. Primary ground urged by the petitioner, M/s Sundaram Surgicals is that the drug in question has not been manufactured by it and despite the respondent-Drugs Inspector, having collected material during the investigation of the case to show that the petitioner, M/s Sundaram Surgicals is not the manufacturer of the drug in question, he has chosen to launch prosecution against it. It has been submitted that once it was established that the drug in question was not manufactured by the petitioner, Sundaram Surgicals, it could not have been prosecuted for the offence relating to sub-standard quality of the drug, as it was a case of spurious drugs.

5) The petitioner, Khalid Bashir has primarily challenged the prosecution on the ground that once it was shown that it is a case of spurious drugs and there is evidence on record to show that the said petitioner had purchased the subject drug from a duly licenced dealer, he could not have been prosecuted. It is also contended that even if it is a case of sub-standard quality of the drug, still then in view of the provisions contained in Section 19 (3) of the Act, unless it is shown that the drug in question, while in his possession, was not properly stored, he could not have been prosecuted.

6) I have heard learned counsel for the parties and perused the record of the case including the trial court record.

7) Since the contentions raised by the two petitioners are distinct from each other and role of two the petitioners are also severable in nature, as such, it would be apt to deal with these contentions separately.

CRMC No. 396/2018

8) This petition has been filed by M/s Sundaram Surgicals, purported manufacturer of the drug, which was found to be of sub-standard quality. As already noted, the petitioner has contended that during the investigation of the case, respondent-Drugs-Inspector had collected the material, which goes on to suggest that the petitioner is not the manufacturer of the drug in question, as such, he could not have been prosecuted. In this regard, the petitioner has relied upon the averments made in para (19) of the impugned complaint. In the said para, it has been submitted by the complainant/Drugs Inspector that he received a communication No. DFO/D-T/1040/8466-69 dated 17.11.2012 from the offence of the Controller, Drugs and Food Control Organization J&K, wherein it was stated that the manufa