HONOURABLE SRI JUSTICE S.RAVI KUMAR + CRIMINAL PETITION No.2277 OF 2012 % Dated 14-10-2014 Between:
# M/s.Johnson & Johnson Ltd., and others.
And:
..Petitioners.
$ State of Andhra Pradesh, represented by Public Prosecutor, High Court of A.P., Hyderabad and another.
! Counsel for the petitioners : SRI C.R.SRIDHARAN.
^ Counsel for respondent : SPECIAL PUBLIC PROSECUTOR.
< GIST:
>HEAD NOTE:
? Cases referred:
1 (2008) 7 SUPREME COURT CASES 196
2 2006-LAWS(APH)-4-15, 2007-FAJ-0-21
3 (1999) 8 Supreme Court Cases 190
..Respondents.
Between:
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.2277 OF 2012 Dated 14-10-2014 M/s.Johnson & Johnson Ltd., and others.
And:
..Petitioners.
State of Andhra Pradesh, represented by Public Prosecutor, High Court of A.P., Hyderabad and another.
..Respondents.
ORDER:
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.2277 OF 2012 This petition is filed to quash proceedings in C.C.No.1085 of 2011 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad, initiated by second respondent herein against petitioners for the offences punishable under Section 27 (d) of Drugs and Cosmetics Act, 1940 (in short “the Act”).
Brief facts leading to this petition are as follows:
Second respondent herein i.e., Drug Inspector, Vengalrao Nagar Zone, Hyderabad filed complaint against petitioners alleging that Sri P.Nagaraju, Deputy Director of Drugs Control Department lifted Savlon Antiseptic liquid B.No.B7038 bearing manufacturing date 06/07 with expiry date 05/09 on 2-8-2007 from M/s. Food World Super Market Limited, Sanath Nagar, Hyderabad, for the purpose of analysis as per the provisions of Section 23 of Drugs and Cosmetics Act. The said sample is forwarded to Government Analyst, Drug Control Laboratory, Hyderabad on the same day for the purpose of test and analysis and on 5-12-2008, Assistant Director Drugs Control Department received Analysis report in Form No.13 stating that drug is not of standard quality and the sample does not comply in respect of assay of Chlorhexidine Gluconate and the original test report in form No.13 was furnished to M/s. Food World Super Market , Sanath Nagar, Hyderabad with a request to disclose the name and address particulars of the persons from whom they have acquired the said d ru g . On that, Assistant Director of Drugs Control Department received reply from M/s. Food World Super Market, Sanath Nagar, Hyderabad, on 22-12-2008 and basing on the same, a notice was served on M/s. Prasad Distributors, Tarnaka, Secunderabad by informing the result of the analysis and requested them to furnish the details of manufacturer. M/s Prasad Distributors through letter dated 22-12-2008 furnished the details of manufacturer and on that, Assistant Director Drugs Control Department addressed a letter to A.1 i.e., first petitioner herein by informing the result of analysis. On 19-2-2009 and 27-2-2009, Assistant Director, Drugs Control Department received letter from office of A.1 and thereafter, the Assistant Director visited A.1 firm and after receiving sanction from the Director General Drugs and Copy Rights, Drugs Control Administration, complaint is filed against A.1 firm and petitioners are liable for punishment for the offence under Section 27 of Drugs and Cosmetics Act.
Heard both sides.
The main point urged on behalf of petitioners are firstly, the prosecution is liable to be quashed for want of valid notification from the State Government as envisaged under the provisions of the Act. It is contended that P.Nagaraju has no jurisdiction over the place from where samples said to have been lifted and as per the provisions of the Act, there should be notification from the State Government, prescribing local limits of the area, for which, the Drug Inspector is appointed. It is contended that G.O. filed along with complaint would only refer to the appointment of the Drug Inspector and the local area is not mentioned in it. It is further contended that even if the said G.O. is taken as notification, name of this Nagaraju who lifted sample does not find place in the said G.O. and therefore, prosecution is liable to be quashed for non-compliance of Sections 21 and 22 of the Act.
Second contention raised on behalf of petitioners is that the Drug Inspector who lifted sample has not followed the mandatory provisions of Section 23 of the Act. It is contended that as per Section 23 of the Act, the Officer who lifted the sample has to tender Fair price of the goods and obtain acknowledgement from the shop where it was taken and if the shop person refused to receive the price, he shall tender a receipt in a prescribed form but the Drug Inspector has not followed this procedure.
The other contention of petitioners is that the Officer who lifted the sample has not followed the mandatory provisions of Section 25 of the Act. It is further contended that petitioners have lost the valuable right of sending second sample for analysis because the complaint is filed long after the expiry of the shelf life of the Drug.
It is also contended that in spite of request made by the petitioners to arrange for second test of the sample, the Officer concerned has not acceded to their request and the petitioners have no chance to request the court to forward the second sample because the complaint was filed in April, 2011 whereas the expiry date of product was in May, 2009.
It is contended that when the sample of a drug in question, could not be sent for second analysis before its expiry date for the fault of the Drug Inspector, the accused is deprived of his right under Section 25(3) of the Act, therefore, the complaint under other proceedings are liable to be quashed as observed by Honourable Supreme Court in MEDICAMEN BIOTECH LIMITED AND ANOTHER Vs. RUBINA BOSE, DRUG INSPECTOR () AND NORTHERN MINERAL LTD., VS. UNION OF INDIA (UOI) AND ANOTHER (CRIMINAL APPEAL No.766 of 2003.) On the other hand, learned Public prosecutor submitted that all the objections raised on behalf of petitioners are matter of evidence which has to be considered during trial and these aspects cannot be decided in a quash petition under Section 482 Cr.P.C.
It is further submitted that the officer concerned informed the petitioners result of the sample long before expiry of the shell date, but the petitioners have not availed the option given to them and therefore, they cannot complain that they have lost valuable right under Section 25(3) of the Act.
It is also submitted that according to the provisions, the petitioners have to disclose their request to send the second sample for analysis within 28 days from the date of receipt of analyst report and that from the material, it appears that petitioners have not made their request within the period stipulated under Section 25 of the Act and therefore, their objection is not tenable and there are no grounds to quash the proceedings.
Now the point that would arise for my consideration in this Criminal Petition is whether the proceedings in C.C.No.1085 of 2011 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad, initiated by second respondent herein against petitioners for the offences punishable under Section 27 (d) of Drugs and Cosmetics Act, 1940, can be quashed or not?
POINT:
According to prosecution, both petitioners have contravened provisions of the Act and thereby, liable for punishment under Section 27 (d) of the Act. It is the specific case of prosecution that one P.Nagaraju, Officer of the Drugs Control Department visited M/s. Food World Super Market Limited, Sanath Nagar, Hyderabad on 2-8- 2007 and lifted four 4 x 100 ml Garnier Ultra Doux withi extract of lime blossom, 4 x (2 x 50gms) Colgate Tooth paste ‘active salt’ and 4 x 100 ml Savlon antiseptic liquid for the purpose of analysis. According to prosecution, the Savlon antiseptic liquid was forwarded to Government analyst Drug Control, Laboratory, Hyderabad and the analyst after analysis declared that the sample does not comply in respect of ASSAY of Chlorhexidine Gluconate Solution IP) and thereby, the drug is not of standard quality.
The first and foremost contention of the petitioners is that the Officer who lifted the Savlon antiseptic liquid from M/s. Food World Super Market Limited, Sanathnagar, Hyderabad is not authorized and notification required under Sections 21 and 22 of the Act is not produced and the notification filed along with complaint does not reflect the name of the said Officer. Now, I shall refer here to Sections 21 and 22 of the Act which reads as follows:
“ 21. Inspectors.—(1) The Central Government or a State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or State Government, as the case may be.
(2) The powers which may be exercised by an Inspector and the duties which may be performed by him, the drugs or [classes of drugs or cosmetics or classes of cosmetics] in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed shall be such as may be prescribed.
(3) No person who has any financial interest [in the import, manufacture or sale of drugs or cosmetics] shall be appointed to be an Inspector under this section.
(4) Every Inspector shall be deemed to be public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860), and shall be officially subordinate to such authority [having the prescribed qualifications,] as the Government appointing him may specify in this behalf.] 22 , Powers of Inspectors.—(1) Subject to the provisions of section 23 and of any rules made by the Central Government in this behalf, an Inspector may, within the local limits of the area for which he is appointed,— [(a) inspect,—
(i) any premises wherein any drug or cosmetic is being manufactured and the means employed for standardising and testing the drug or cosmetic;
(ii) any premises wherein any drug or cosmetic is being sold, or stocked or exhibited or offered for sale, or distributed;
(b) take samples of any drug or cosmetic,—
(i) which is being manufactured or being sold or is stocked or exhibited or offered for sale, or is being distributed;
(ii) from any person who is in the course of conveying, delivering or preparing to deliver such drug or cosmetic to a purchaser or a consignee;
(c) at all reasonable times, with such assistance, if any, as he considers necessary,--
(i) search any person, who, he has reason to believe, has secreted about his person, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed; or
(ii) enter and search any place in which he has reason to believe that an offence under this Chapter has been, or is being, committed; or
(iii) stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days, or, unless the alleged offence is such that the defect may be removed by the possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or article by means of which the offence has been, or is being, committed or which may be employed for the commission of such offence;] (cc) examine any record, register, document or any other material object found [with any person, or in any place, vehicle, vessel or other conveyance referred to in clause (c)], and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the Rules made thereunder;] (cca) require any person to produce any record, register, or other document relating to the manufacture for sale or for distribution, stocking, exhibition for sale, offer for sale or distribution of any drug or cosmetic in respect of which he has reason to believe that an offence under this Chapter has been, or is being, committed;]
(d) exercise such other powers as may be necessary for carrying out the purposes of this Chapter or any rules made thereunder.
(2) The provisions of [the Code of Criminal Procedure, 1973 (2 of 1974)] shall, so far as may be, apply to any search or seizure under this Chapter as they apply to any search or seizure made under the authority of a warrant issued under [section 94] of the said Code.
(2A) Every record, register or other document seized under clause (cc) or produced under clause (cca) shall be returned to the person, from whom they were seized or who produce the same, within a period of twenty days of the date of such seizure or production, as the case may be, after copies thereof or extracts therefrom certified by that person, in such manner as may be prescribed, have been taken.]
(3) If any person wilfully obstructs an Inspector in the exercise of the powers conferred upon him by or under this Chapter, [or refuses to produce any record, register or other document when so required under clause (cca) of sub-section (1),] he shall be punishable with imprisonment which may extend to three years, or with fine, or with both.] Section 21 deals with appointment of Inspector. According to which, the State Government may by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be.
Along with the complaint, G.O. dated 21-8-2010 issued by Health, Medical & Family Welfare Department is filed. In this G.O., names of eight persons are mentioned stating that those persons are appointed as Drugs Inspectors on contract basis for the entire State of Andhra Pradesh. Name of Nagaraju who lifted the sample from M/s. Food World Super Market Limited, Sanath Nagar, Hyderabad is not found in this G.O.
Further according to Section 22 State Government has to issue a notification allocating local limits of Area to Drug Inspector for which area he/she is appointed.
Here in the G.O. referred above, the name of Sri Apparna is referred at Sl.No2 who filed the complaint. She is not the officer who lifted the sample from M/s Food World Super Market Limited, Sanath Nagar, Hyderabad.
So as rightly pointed out by the Advocate for petitioners, when the accused specifically contended in the quash petition, that the person who lifted sample from M/s Food World Super Market Limited, Sanath Nagar, Hyderabad, has no authority, the minimum expected from prosecution is to produce the notification or the order under which the local area where this M/s Food World Super Market Limited, Sanath Nagar, Hyderabad is situated, was allocated to the Officer i.e., Nagaraju who lifted the sample.
So, there is no prima facie material to show that Nagaraju (L.W.2) is empowered under Sections 21 and 22 of the Act to lift the sample.
GABA PHARMACEUTICALS vs. STATE OF A.P. (), this court while dealing with Section 21 of the Act held “when accused raised an objection with regard to power of the Drug Inspector, it is expected that prosecution to produce the Gazette notification.” In that case, as the Gazette notification was not placed before the trial court, the findings of the trial court were held as illegal and improper and conviction was set aside on that ground.
Here the prosecution has not produced the G.O. concerning P Nagaraju but filed the G.O. relating to Aparna who filed the complaint. Therefore, the contention of the petitioners is upheld.
The other contention of petitioners is that the Officer who lifted the sample has not followed the provisions under Section 23 of the Act. It is submitted that as per Section 23 of the Act, Inspector who takes sample shall tender a fair price of the seller and obtain written acknowledgement. It is further submitted that in case, if the price tender is refused, the Inspector shall tender a receipt in the prescribed form but here, in this case, there is no material to show that P. Nagaraju tendered fair price of the seller from where sample is lifted.
Learned Public Prosecutor submitted that the Drug Inspector has followed the provisions and as the M/s Food World Super Market Limited, Sanat Nagar, Hyderabad failed to receive the fair price he has issued receipt in form No.17-A which is the prescribed form and that the same is filed as document No.3 along with complaint and therefore, the objection on this score is not tenable.
I have perused the material papers filed along with quash petition. Document No.3 referred in the complaint is also filed along with quash petition which is issued in form No.17-A.
From this, it is clear that the Drug Inspector offered a sum of Rs.300/- as fair price of the samples but Food World Super Market refused to receive it, therefore, he has issued the said receipt under form 17-A which is acknowledged by M/s Food World Super Market Limited, Sanath Nagar, Hyderabad with their stamp. So the objection with regard to non-compliance of Section 23 of the Act is not at all tenable and therefore, the same is negatived.
The other contention of the petitioners is that mandatory provisions of Section 25 of the Act, are not complied with. It is submitted that the sample of Drug in question could not be sent for second analysis after its expiry date and it was due to fault of Drug Inspector. It is contended that the accused lost their right under Section 25 (3) of the Act and therefore, the complaint and other proceedings have to be quashed.
According to Public Prosecutor since request from petitioners was not within the prescribed time of 28 days, there is no fault on the part of Drug Inspector and the petitioners have lost their right on their own but not due to inaction of the Drug Inspector.
As seen from the material papers, the sample was lifted on 2-8-2007 and on the same day, it was forwarded to the Government analyst.
Drug Inspector received analyst report on 5-12-2008 and as per the complaint, after collecting the details of the distributor and the manufacturer in terms of Section 18 of the Act, the petitioners were informed of the result of the test through letter dated 27-2-2009. As per Section 25 (3) of the Act, within 28 days on receipt of this intimation, they have to inform their intention in writing either to the Inspector or to the court. Admittedly, by this day, complaint is not filed and no proceeding are pending before the court and therefore, they have to address the Inspector.
As seen from the additional material papers (filed on 25-8-2014), the petitioners addressed the authorities concerned on 3-3-2009 requesting to arrange for reanalysis of the sample by using validated test method provided by them in an appropriate Government Laboratory and to disregard the previous test result. So from this letter, it is clear that the petitioners have expressed their intention immediately after receipt of analyst report much before the expiry of 28 days as prescribed in Section 25(3) of the Act but the Drug Inspector or the authorities concerned, have not taken any steps in pursuance of this letter. Further, this letter was addressed well before the expiry date of the sample. Admittedly, the expiry date of sample was in May, 2009 whereas this letter is dated 3-3-2009. So in view of this letter, the contention of learned Public Prosecutor that there was no request from the petitioners within 28 days cannot be accepted.
I n MEDICAMEN BIOTECH LIMITED AND ANOTHER Vs. RUBINA BOSE, DRUG INSPECTOR (1st cited), Honourable Supreme Court quashed the proceedings for non-compliance of Section 25(3) and 25 (4) of the Act in that case the Honourable Supreme Court held as under:
“There is no explanation as to why the complaint itself had been filed about a month before expiry of shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after complaint had been filed. Likewise, requests for retesting of drug had been made by the appellant in August/September, 2001 and there is absolutely no reason as to why complaint could not have been filed earlier and fourth sample sent for retesting well within time. Facts of the case suggest that the appellants have been deprived of a valuable right under Sections 25(3) and 25(4) of the Act which must necessitate quashing of proceedings against them.”
In this case, the sample was lifted on 2-8-2007 and the analyst gave report on 5-12-2008 and the same was forwarded to A.1 firm on 27-2- 2009 and A.1 firm through letter dated 3-3-2009 requested the authorities to arrange for repeat of analysis but the authorities have not taken any steps but filed the complaint on 13-4-2011 long after the expiry of shelf life.
I n STATE OF HARYANA Vs. UNIQUE FARMAID (P.) LTD. AND ORS.(), the Honourable Supreme Court upheld the orders of the High Court which quashed the proceedings on the ground that accused was deprived of the right to get the sample tested by Central Laboratory.
In that case, the issue before Supreme Court was under insecticides Act but the provisions of that Act and the provisions of the Drugs Act in respect of right of accused to have the test of second sample are similar. In that case, the facts and findings are as follows:
“An Insecticides Inspector appointed under the Insecticides Act, 1968 visited the shop premises of a firm and drew samples of Monochrotophos-36% SL. insecticide. He gave one sample to the proprietor of the firm, sent the second sample to the Senior Analyst, Quality Control Laboratory (Insecticides) for testing and the third sample was deposited with the Deputy Director, Agriculture. Another firm U was the manufacturer of the said insecticides. The Quality Control Laboratory in its analysis report found the sample to be misbranded. Accordingly, notices along with the analysis report of the sample were sent on 30-9- 1994 to the said firm and to U alleging that provisions of Sections 3(k)(i), 17 and 18 of the Act had been contravened, U sent a reply denying the said allegations and notifying its intention to adduce evidence to support its contention and requested for getting a sample tested by CIL at U’s cost. Without adverting to the said request of U, the Insecticide Inspector filed a criminal complaint against several parties including U. Thereafter, U and its Sale Officer approached the High Court under Section 482 of the Cr.P.C. and Article 227 of the Constitution. They contended that on the one hand their request for retesting of the sample was ignored by the Inspector, and on the other, by the time they were asked to appear in the Court to stand their trial, the shelf life of the insecticide, of which sample was taken, had already expired. They were, thus, deprived of the valuable right of their defence. The High Court upheld their contention and quashed the complaint. Before the Supreme Court the appellant State contended: (i) that the request for retesting of the sample ought to have been made to the court and not to the Insecticide Inspector; (ii) that no defence other than prescribed under Section 30 of the Act could be allowed to be raised in the prosecution filed under the Act, and (iii) that the shelf life of the sample was not relevant as the Act did not prescribe any expiry date. Rejecting these contentions and dismissing the appeals, the Supreme Court Held:
If the expiry date of the sample was not relevant, there was no reason why in the form prescribed for submission of the report by the Insecticide Analyst, the dates of manufacture of the article and the expiry date are mentioned.
Section 30 provides for defences which may or may not be allowed in prosecution under the Act. Section 30(1) only prescribes in effect that ignorance would be no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. The procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the right to seek dismissal of the complaint. Then in order to safeguard the right of the accused to have the sample tested from the Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, the expiry date of the insecticide was already over and sending of the sample to the Central Insecticides Laboratory at that late stage would be of no consequence. Therefore, in view of Sections 24(3) and 24(4) of the Insecticides Act the report of the Insecticide Analyst was not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case, the accused have been deprived of that right, thus, prejudicing them in their defence. In these circumstances, the High Court was right in concluding that it would be an abuse of the process of the court if the prosecution was continued against the accused persons. The High Court rightly quashed the criminal complaint.”
From the above decisions, it is clear that when right to analyze the second sample was lost due to inaction of the prosecuting agency, continuation of proceedings would amount to abuse of process of court. Therefore, on a scrutiny of the material and on a consideration of facts and circumstances of the case, I am of the view that continuing the prosecution against petitioners will be a futile exercise and would amount to abuse of process of court and that the powers under Section 482 Cr.P.C. have to be exercised.
For these reasons, this Criminal Petition is allowed and the proceedings in C.C.No.1085 of 2011 on the file of III Additional Chief Metropolitan Magistrate, Hyderabad, initiated by second respondent herein against petitioners for the offences punishable under Section 27 (d) of Drugs and Cosmetics Act, 1940, are hereby quashed.
As a sequel to the disposal of this Criminal Petition, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 14-10-2014.
Note:
LR copy to be marked.
BO
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL PETITION No.2277 OF 2012 Dated 14-10-2014