HIGH COURT OF JAMMU AND KASHMIR AND LADAKH

ATJAMMU

Reserved on 02.02.2023

Pronounced on 09.02.2023

CRMC No. 396/2018

c/w

CRM(M) No. 93/2021

(O&M)

1)Sundaram Surgicals th. G. Mathu Mari

2)Khalid Bashir

.....Appellant/Petitioner(s)

Through :- Mr. Sachin Gupta, Advocate

Mr. Hamzah Hussaini, Advocate

v/s

Drugs Inspector Doda C/o Controller

Drugs and Food Control Org. Muthi and

others.

.....Respondent(s)

Through :- Mr. S. S. Nanda, Sr. AAG

Coram:

HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

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

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c/w CRM(M) No. 93/2021

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

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c/w CRM(M) No. 93/2021

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 n