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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

JAIPUR BENCH, JAIPUR

M/s Movika Pharmaceuticals & Ors.

Vs.

State of Rajasthan

(S.B. Criminal Misc. Petition No.615/2005)

Date of Order :-

05^th October, 2009

HON'BLE MR.JUSTICE R.S.CHAUHAN

Mr.K.J. Mehta, for the petitioners.

The petitioners have challenged the continuation of the

criminal proceeding pending before the Judicial Chief Judicial

Magistrate No.6, Jaipur City, Jaipur.

The learned counsel for the petitioners contends that

allegedly the petitioners sold a chemical known as “Aswamol”

(Paracetamol Syrup) which is the main ingredient of “paracetamol

medicine”. The said chemical was sold to M/s Beelwal Pharmaceutical

Agencies, Jaipur. According to the Drug Inspector, the “Paracetamol

Syrup” which were recovered from M/s Beelwal Pharmaceutical

Agencies, Jaipur, were found to be spurious. According to the learned

counsel, Section 19 of the Drugs and Cosmetics Act, 1940 ('the Act',

for short) provides certain statutory defences which are available to

the accused-petitioners. Moreover, Section 34 of the Act creates

vicarious liability, in case the offence is committed by a company.

According to the learned counsel, the vicarious liability of the

petitioners has not been made out. Yet, the criminal proceeding is

continue against them. Lastly, arrest warrant have been issued

against the petitioners. Although the petitioners had applied for an

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anticipatory bail before the learned District Court, the same has been

denied. Therefore, this Court, in its jurisdiction under Section 482

Cr.P.C., should grant bail to the petitioners, as the main accused

person has already been granted a regular bail by the trial court

itself.

Heard the learned counsel for the parties.

Section 19 of the Act reads as under :-

19. Pleas.-

(1)

Save as hereinafter provided in this section, it shall be no

defence in a prosecution under this chapter to prove merely

that the accused was ignorant of the nature, substance or

quality of the drug (or cosmetic) in respect of which the

offence has been committed or of the circumstances of its

manufacture or import, or that the purchaser, having

bought only for the purpose of test or analysis, has not

been prejudiced by the sale.

(2)

For the purposes of section 18 a drug shall not be deemed

to be misbranded or (adulterated or spurious) or to be

below standard quality nor shall a cosmetic be deemed to

be misbranded or to be below standard quality only by

reason of the fact that -

(a)

there has been added thereto some innocuous

substance or ingredient because the same is

required for the manufacture or preparation of the

drug (or cosmetic) as an article of commerce in a

state fit for carriage or consumption, and not to

increase the bulk, weight or measure of the drug (or

cosmetic) or to conceal its inferior quality or other

defects; or

(b)

in the process of manufacture, preparation or

conveyance some extraneous substance has

unavoidably become intermixed with it: provided

that this clause shall not apply in relation to any sale

or distribution of the drug (or cosmetic) occurring

after the vendor or distributor became aware of such

intermixture.

(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 section 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 that provisions of

that section; and

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(c)

that the drug or cosmetic, while in his possession

was properly stored and remained in the same sate

as when he acquired it.

Section 34 of the Act reads as under :-

34. Offences by companies.-

(1)

Where an