THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL CRIMINAL PETITION No.4186 OF 2023

O R D E R:

This Criminal Petition is filed seeking to quash the proceedings against the petitioners/accused Nos.1 to 3 in C.C.No.3855 of 2019 on the file of the learned X Additional Chief Metropolitan Magistrate, at Secunderabad (for short, “the trial Court”) registered for the offences under Section 18(a)(iv) r/w. Rule 106 and Sl.Nos.42 & 51 of Schedule ‘J’ punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940 (for short, “the Act”).

2. Heard Mr.Dammalapati Srinivas, learned senior counsel representing Mr.Karan Talwar, learned counsel for the petitioners and Mr.E.Ganesh, learned Assistant Public Prosecutor appearing for respondent No.2-State.

3. The brief facts of the case are that on 07.12.2015 respondent No.1/complainant received credible information that the firm of M/s.Mankind Pharma Limited, D.No.1-3- 183/40/21/63/A & 62/2 & 62/2A, (Ground Floor) and III Floor, P & T District has stocked Pilorute cream labeled with indication of “Varicose veins and Haemorrhoids (Piles)” for sale; that LW1 along with LWs.2 and 3 proceeded to the premises of LW4. Upon search in the above shop, the drug ‘Pilurute cream (Troxerutin, Calcium Dobesilate, Zinc, Phenylephrine, Legnocaine with Hydrocortisone Cream), Batch No.B1CTO027, Mfg.date:08/2015, Expiry Date:10/2016, Manufactured in India by: Swiss Garnier Life Sciences, 21 to 23, Industrial area, Mehatpur, Distt.UNA (HP) –174315 labelled with indication of ‘Varicose veins and Haemorrhoids (Piles)’ was found stocked in the premises for sale along with other saleable drugs thereby contravening Section 18(a)(iv) r/w Rule 106 r/w Sl.No.42 & 51 of Drugs & Cosmetics Act, 1940 & Rules 1945. Hence, LW1 seized the subject drug, 20 x 30 gms of Pilorute cream, from the premises of LW4 by enlisting the details of subject drug in Form-16 under the cover of panchanama. Basing on the said facts, the present crime is registered.

4. Learned counsel for the petitioners submitted that in similar circumstances, this Court vide order dated 02.03.2023 in Crl.P.No.2502 of 2021 and order dated 06.04.2006 in Crl.R.C.No.1121 of 2002 quashed the proceedings against the petitioners therein. Relying on the aforesaid decisions, learned counsel seeks to allow the Criminal Petition.

5. Learned Assistant Public Prosecutor submits that the matter requires to be tried and seeks to dismiss this Criminal Petition.

6. The basis on which the prosecution is launched by the Drug Inspector is that the said Drug Pilorute cream is labeled with an indication of “Varicose veins and Haemorrhoids (Piles)” and such indication would amount to violation of 18(a)(iv) r/w Rule 106(1) r/w Sl.No.42 and 51 of Drugs & Cosmetics Act, 1940 (for short ‘the Act’) & Rules 1945.

7. For the sake of convenience Section 18(a)(iv) of the Act and Rule 106 of Drugs Rules, 1945 are extracted hereunder:

“18. Prohibition of manufacture and sale of certain drugs and cosmetics: From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other on this behalf_

(a) manufacture for sale [or for distribution], or sell, or stock or exhibit [or offer] for sale, or distribute___

(i)….. (ii)… (iii)…

(iv). Any drug which by means of any statement, design or devise accompanying it or by any other means, purports or claims [to prevent, cure or mitigate] any such disease or ailment, or to have any such other effect as may be prescribed;”

“106. Diseases which a drug may not purport to prevent or cure.(1) No drug may purport or claim to prevent or cure or may convey to the intending user thereof any idea that it may prevent or cure, one or more of the diseases or ailments specified in Schedule J.

(2) No drug may purport or claim to procure or assist to procure, or may convey to the intending user thereof any idea that it may procure or assist to procure, miscarriage in women.”

8. For the sake of convenience, the words