Retailers must prove due diligence in acquiring drugs to avoid liability under the Drugs and Cosmetics Act.

ORDER

This Criminal Original Petition has been filed seeking to quash the complaint in S.C. No. 130 of 2019 on the file of I Addl. District and Sessions Judge, Thiruvallur.

2. Heard both sides.

3. The petitioner is ranked as A2 in the complaint in S.C.No.130 of

2019 filed under Sec.36 AB of the Drugs and Cosmetic Act, 1940 for contravention of Sec.18(a)(i) read with Sec. 17B(c), 17B(d), 18(b) and Sec.18-A of Drugs and Cosmetics Act, 1940. The learned counsel for petitioner would submit that as a retailer, the petitioner borrowed the alleged drugs from A3, who is the manufacturer of drugs and he sold the same to the distributor/A1. To purchase those drugs, he is having valid license and as a retailer, he sold the drugs to A3, except that, he is not intended to sell the alleged non-standard quality drugs, but he was falsely implicated in this case by the prosecution. Therefore, he prayed to quash the complaint filed against the petitioner. In support of his contentions, the learned counsel relied on the order passed by this Court against A1 in Crl. O.P. No. 412 of 2020, dated 23.09.2020. He has also relied another order passed by this court in Crl.O.P.(MD) No. 18629 of 2022, dated 30.06.2023. He has further relied on the judgment rendered by this court reported in 2009 (1) MWN (Cr.) 342 in the case of P.Sukumar vs. State , rep. by Senior Drugs Inspector, Salem Zone, Salem, wherein it was held in para 13 to 15 as follows :-

“13. At this juncture, it is relevant to refer Sec.19(3) of the Act :-

“19. Pleas – (1)......

(2).........................

(3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of Sec.18 if he proves (a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;

(b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that Section; and (c) that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquired it.”

14. A reading of the said provision makes it crystal clear that a person shall not be liable for any contravention of Sec.18 of the Act if he is not the manufacturer of a Drug and Cosmetic Act if he is not the manufacturer of a Drug and Cosmetic or his agent for the distribution thereof, if he proves----

(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;

(b) that he is not having knowledge about the contravention of any provisions of the Act in respect of a particular drug or cosmetic; and (c) that the said drug or cosmetic was properly stored and remained in the same state while drug was in his possession.

15. As far as the case on hand is concerned, it is the admitted case of the prosecution that even as per the allegations contained in the complaint, the petitioner/A6 has acquired the said drugs, Teenmox capsules, from the licensed manufacturer/A1 viz., Teen Pharmaceuticals.”

By relying the aforesaid authorities, the learned counsel for petitioner would submit that the petitioner is not liable for contravention of Sec.18(a)(i) read with Sec. 17B(c), 17B(d), 18(b) and Sec.18-A of Drugs and Cosmetics Act, 1940. If he is not a manufacturer of drugs nor he is agent for the distribution, he is only a licensed retailer and he has simply purchased the medicine and sold to the distributor/A1. Furthermore, the learned counsel would submit that since the complaint initiated against A1 was quashed by this court, he prayed to quash the complaint initiated against the petitioner.

4. By way of reply, the learned Government Advocate (Criminal side) appearing for respondent would submit that as per investigation, it was revealed that through whatsapp message, he purchased the alleged medicine from A1, who is said to be a manufacturer of codeine syrup i.e.

Record plus cough syrup and the invest