ORDER

This Criminal Original Petition has been to quash the proceedings in C.C.No.307 of 2017 on the file of the learned Judicial Magistrate No.I, Trichy.

2.The brief facts of the case is as follows:-

The first petitioner is a Public Company, incorporated under the provisions of the Companies Act, 1956 and engaged in manufacturing, supply and distribution of pharmaceutical products in India as well as overseas. The second petitioner is the Managing Director of the Company and the third petitioner, the power of attorney and manufacturing chemist of the Company.

3.On 28.01.2015, a sample of CD ATO 20 (Atorvastatin tablets IP)

Batch No.HEA0051, M/D July – 2015:, E/D June 2017 manufactured by the first accused Company was purchased by the complainant, who is the respondent herein for analysis from M/s.Sotheren Railway Hospital, Golden Rock, Trichy under Form 17, dated 28.01.2015. The sample was sent for analysis to the Government Analyst (Drugs), DTL, Chennai under Form 18 on 28.01.2015. It was found that the sample was declared as 'not of standard quality' by the Government Analyst on the ground that it does not conform to IP specification for Atorvastatin Tables.

4.According to the complainant, it is a violation under Section 18A of the Drugs and Cosmetics Act, 1940. So, a show cause notice was issued on 06.01.2017 to disclose the name and address of the person from whom the drug was purchased under Section 18E of the Act. Subsequent to that from 06.01.2017 to 27.02.2017 the respondent issued a notice to various persons to ascertain the details of the manufacturer. Finally, on 13.02.2017, he issued a notice to the first accused/Company under Section 23 (4) (III) and 25 (2) of the Act. But, that was returned. Thereafter, final report was filed on1 5.03.2017 to the Director of the Drugs and Control, Chennai. On 10.05.2017, the Director of the Drugs and Control, Chennai, called for the proposal and prosecution against the first petitioner. Thereafter, reminder No.2 was issued on 10.05.2017 since there was no residence, on 20.07.2017, a proposal was submitted for launching prosecution seeking sanction. On 16.08.2017, sanction was granted and thereafter, on 15.09.2017, the respondent filed a private complaint before the learned Judicial Magistrate, Trichy and the same was taken cognizance in C.C.No.

307 of 2017.

5.Seeking quashment of the complaint, this Criminal Original Petition is filed mainly on the ground that as per Section 25 (3) and 25 (4) of the Act, the petitioner have right to get samples of the product retested by the Central Drugs Laboratory before the expiry of said product i.e., June 2017.

6.The complaint has been filed after the expiry of the shelf life of the drug. The expiry date of the drug is June 2017. But, the complaint was filed only 15.09.2017. The mandatory provision contained under Section 23(4)

(ii) of the Act is not complied. So, right of the petitioner is affected.

7.His further contention is that the product must be stored under specified storage conditions as set out in its in the packaging and if not, it will automatically deteriorate. Since the product was stored with the dealers for more than 5 months, there was every possibility of the product, got automatically deteriorate before the testing is done. The product changed many hands, such as, Thiru.S.Gurubarathi, the then Durgs Inspector, Trichy II Range from M/s.Southern Railway Hospital, Golden Rock, Trichy and thereafter, it was retained by the Government Analyst, (Drugs), DTL, Chennai-6 under Form 18 dated 28.12.2015. Moreover, the prosecution has been laid by taking recourse under Section 34 of the Act. But, how the petitioners 2 and 3 are liable is not stated. The petitioners 2 and 3 were not in management of the affairs of the Company at the relevant point of time.

So, they cannot be prosecuted.

8.Heard both sides.

9.It is not necessary to elaborate the facts which led into the filing of C.C.No.307 of 2017 before the learned Judicial Magistrate, Trichy. It