A prima facie allegation against an accused, established by the prosecution's materials, is sufficient to dismiss a discharge petition under Section 239 Cr.P.C., even if the accused claims lack of knowledge or responsibility.

Crl.RC.No.427 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.01.2023

Coram:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN

Criminal Revision Case No.427 of 2020

and

Crl.M.P.No.3407 of 2020

P.Porselvi

... Petitioner/5^th accused

Vs.

A.Deepa, M.Pharm

Drugs Inspector, Attur Range

O/o.Assistant Director of Drugs Control

Salem Zone,

No.7, Thiruvallurvar Street

Subramaniya Naga

Salem -5

... Respondent/Complainant

Prayer: Criminal Revision filed under Section 397 read with 401 of

Criminal Procedure Code, praying to call for the records relating to

Crl.M.P.No.1964 of 2019 in C.C.No.14 of 2016 on the file of the Judicial

Magistrate No.I, Attur, Salem District by its order dated 24.02.2020 by

setting aside the said impugned order.

For Petitioner

: Mr.S.Shunmuga Velayutham

Senior Counsel for

Mr.T.Vijayaragavan

For Respondent

: Mr.R.Murthi

Government Advocate (Crl. Side)

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Crl.RC.No.427 of 2020

ORDER

This Criminal Revision Petition has been filed seeking to set aside

the order in Crl.M.P.No.1964 of 2019 in C.C.No.14 of 2016 on the file of

the Judicial Magistrate No.I, Attur, Salem District dated 24.02.2020.

2. The respondent filed a complainant before the learned Judicial

Magistrate No.1, Attur, Salem, in C.C.No.14 of 2016 for the offences

under Section 18 (b) and 27(d) of the Drugs and Cosmetics Act, 1940.

The petitioner is arrayed as A5 in the said complaint. During pendency of

the complaint, the petitioner herein had filed a petition before the

Magistrate in Crl.M.P.No.1964 of 2019 invoking Section 239 Cr.P.C. to

discharge her from the said complaint. The said complaint was dismissed

by the Magistrate by order dated 24.02.2020. Aggrieved over the same,

the present revision has been filed before this Court.

3. The learned counsel for the petitioner would submit that the

petitioner is only running a medical shop. The other accused viz., A1 to

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Crl.RC.No.427 of 2020

A4 are the manufacturers of the drugs. The seized drugs were in a sealed

pack and therefore, it is not possible for the petitioner to add anything

into that and the petitioner had no knowledge that the seized drugs were

sub-standard quality. He would further submit that the petitioner is an

innocent and there is no averment in the complaint that the petitioner

either manufactured the said drugs or she was aware of the fact that the

drugs are sub-standard quality. Further he would submit that there is a

warranty period given on the drug pack itself and therefore, the petitioner

is not responsible for the quality or standard of the drugs. The petitioner

received the drugs from dealers and selling the same and she is no away

responsible for the quality of the drugs. But the trial Court failed to

consider the same and dismissed the petition filed by her seeking to

discharge her from the complaint, which warrants interference.

4. The learned Government Advocate (Crl. Side) would submit that

some samples of drug viz., 4x1x100 ml of PULMOLOX-XT were taken

from the petitioner's medial shop and sent for analysis and the analysis

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Crl.RC.No.427 of 2020

report showed that the samples were “Not of Standard Quality” and does

not conform to label claim with respect to the content of Terbutaline

Sulphate. Hence, the complaint was filed before the Judicial Magistrate.

The petitioner is not entitled to be discharged from the complaint since,

the sample drugs which were tested and found to be of sub standard

quality, were under the custody of the petitioner. Therefore, the trial

Court rightly dismissed the petition filed by the petitioner and that the

petitioner has to prove as to whether she was aware of the standard of

quality or not; whether she is responsible for the quality or not , during

trial.

5. Heard the learned counsel for the petitioner and the learned

Government Advocate (Crl. Side) appearing for