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1/7 25-APL-139.21-Judgment

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

CRI. APPLN. (APL) NO. 139 OF 2021

  

APPLICANT :-

Dr. Ritesh S/o Nandkishorsingh Dixit, Aged about 45 years, Occupation: Medical Practitioner, – Shweta Multi Speciality Hospital, Behind Haveli Complex, Chandrapur, Tq. & Distt. Chandrapur.

(Original Accused) …VERSUS…

State of Maharashtra, Through Shri M.V. Gotmare, Drugs Inspector, Food & Drugs Administration, 2nd Floor, Room Nos.20 & 21, New Administrative Building, Chandrapur, Tq. & Distt. Chandrapur.

 

RESPONDENT :-



——————————————————————————————- Mr. M.P. Khajanchi, counsel for the applicant.

Mr. S.D.Sirpurkar, APP for the respondent. ——————————————————————————————-

CORAM : MANISH PITALE, J. DATE : 15.07.2021.

ORAL JUDGMENT

2. Hearing was conducted through video conferencing and the learned counsel agreed that the audio and visual quality was proper.

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25-APL-139.21-Judgment

3.

4.
consent of the learned counsel for the parties.

5. The applicant has approached this Court under section 482 of the Code of Criminal Procedure (Cr.P.C.) seeking quashing of the complaint dated 29/04/2015 filed against him by the respondent-State, represented through the Inspector of Food and Drugs Administration.

6. It is the contention of the applicant that even if the contents of the complaint leading to Regular Criminal Case No.298 of 2015, are to be accepted, on the face of it, the alleged offences are not made out and that the complaint deserves to be quashed. In fact, the applicant had moved an application before the Court of Chief Judicial Magistrate, Chandrapur at Exhibit-12 for rejecting the complaint, dropping the proceedings or to discharge him, in view of the aforesaid contentions. But, by impugned order dated 06/03/2020, the Magistrate rejected the application.

7. The learned counsel appearing for the applicant invited KHUNTE

Heard.

Admit. The present application is heard finally with the

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3/7 25-APL-139.21-Judgment

attention of this Court to the contents of the aforesaid complaint, particularly paragraphs-3 and 4 thereof, to contend that the complaint proceeds on the basis that the applicant is a medical practitioner and that he has been prescribing certain medicines to patients in the Intensive Care Unit (ICU). It is then alleged that the applicant deserves to be proceeded against under the provisions of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “Act of 1940”), particularly sections 18 and 18-B thereof. It is contended that a proper reading of the aforesaid provisions, along with other relevant provisions of the Act of 1940 and the Rules framed thereunder would show that even if the allegation levelled against the applicant is to be taken as true, no contravention of the said provisions can be alleged, much less proved and that therefore the complaint deserves to be quashed. It is further contended that for the same reason the impugned order dated 06/03/2020 also deserves to be quashed and set aside and the complaint needs to be dismissed at this stage itself.

8. Mr.S.D.Sirpurkar, learned APP appearing for the respondent, submitted that the contentions raised on behalf of the applicant could be said to be triable issues and that therefore, the

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complaint did not deserve to be quashed.

9. This Court has perused sections 18(c) and 18-B of the Act of 1940. A perusal of the same shows that the said provision is found in Chapter IV of the Act of 1940, pertaining to manufacture, sale and distribution of the drugs and cosmetics. As per section 18(c) of the Act of 1940, no person either himself or through any other person can manufacture for sale or for distribution, or sell, or stock or distribute any drug or cosmetic, except in accordance with conditions of the licence issued for the said purpose under the said Chapter. Section 18-B of the Act of 1940 provides that every such person holding a licence is required to maintain records and registers, etc. which shall be furnished to the concerned Authority in the prescribed format. A proper appreciation of the said provisions would indicate that the same apply to manufacturers, stockists, sellers or distributors of drugs and cosmetics. A perusal of section 27(b)(ii) of the Act of 1940 shows that if the provision of section 18(c) thereof is violated, a sentence of imprisonment of a term not less than three years and extending up to five years can be imposed along with fine and confiscation of the drugs in question. Similarly for violation of

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section 18-B of the Act of 1940, the contravention can be penalized by imposing a sentence of imprisonment, which may extend to one year along with fine. It is significant that Rule 123 of the Drugs and Cosmetics Rules, 1945, specifically provides for exemptions from application of the provisions of Chapter IV of the Act of 1940. These are specified in Schedule-K. Clause-5 of the said Schedule specifically exempts application of Chapter IV of the Act of 1940, to drugs supplied by a registered medical practitioner to his own patients.

10. A conjoint reading of the aforesaid provisions and applying the same to the allegations levelled against the applicant in the aforesaid complaint would show that even if the allegations are to be accepted, it cannot be said even at this stage at the outset that any offence is made out against the applicant under section 18(c) and 18-B of the Act of 1940. Paragraph-3 of the complaint proceeds on the basis that the applicant is a registered medical practitioner and then it is stated that he has been prescribing and supplying medicines to his patients in the ICU. The allegations in paragraphs-3 and 4 do not make out any case under section 18(c) and 18-B of the Act of 1940, for the reason

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that admittedly the applicant is a registered medical practitioner and there is no allegation against him that he is either a manufacturer, seller, stockist or distributor of the drugs in question. Applicability of Chapter IV is completely ruled out in view of the specific exemption under Rule 123 of the aforesaid Rules read with Schedule-K thereof.

11. All these aspects were brought to the notice of the Magistrate, but the contention raised on the basis of the said provisions was rejected by merely stating that this could be triable issue to be decided on merits. When it is clear that Chapter IV of the Act of 1940 is inapplicable by the very contents of the complaint, particularly in paragraphs-3 and 4 of the aforesaid complaint, the Magistrate certainly erred in holding that the same would be a triable issue. The contents of the complaint on being accepted, as it is do not indicate that the ingredients of violation of sections 18(c) and 18-B of the Act of 1940 are made out, thereby indicating that the complaint does not deserve to proceed any further. The Magistrate failed to appreciate this aspect of the matter.

12. Hence, for the reasons stated above, this Court is of the KHUNTE

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opinion that the present application deserves to be allowed so that proceedings initiated against the applicant, found to be not sustainable at the outset, do not proceed any further. The facts in the present case clearly show that the case of the applicant falls in categories 1 and 2 recognized the judgment of the Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal, reported in 1992 SCC Suppl.(I) 335.

13. In view of the above, the application is allowed. The complaint bearing Regular Criminal Case No.298 of 2015 is quashed and consequently the impugned order dated 06/03/2020 passed by the learned Magistrate in Regular Criminal Case No.298 of 2015, is also quashed and set aside.

14. The application stands disposed of accordingly.

JUDGE



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1 Reg. Cri. Case No. 298/2015 State -v- Dr. Ritesh

ORDER BELOW EXH. 12

(Passed on 06/03/2020)

This application is filed by the accused to reject the complaint, drop the proceeding or to discharge him from the proceeding.

2) In a nutshell, the case of the accused is that, the Drugs Inspector filed the complaint on 29.04.2015 for offences under sections 27 (b) (ii) and 28-A of Drugs and Cosmetics Act. Thereafter, the case has been registered as regular case. The Court had never apply his mind and did not pass order of issue process. The accused has a right to challenge the order of issue process, but in the absence of such order, he has been deprived of said right. He is in-charge of Shweta Multi Specialty Hospital, Chandrapur and he supplied drugs to the patients of said hospital only and charged for the same in the bills. Rule 123 of Drugs and Cosmetics Rules, exempts the drugs specified in schedule ‘K’ from operation of chapter IV of Drugs and Cosmetics Act relating to sale and distribution of drugs. Hence, the accused constrained to file the present application.

3) The learned APP has strongly objected the application by filing his say and contended that the accused prima facie involved and contravened the provisions under Section 27 (b) (ii), 28-A, 18-A of Drugs and Cosmetics Act. There is material evidence against the accused. The accused has



2 Reg. Cri. Case No. 298/2015 State -v- Dr. Ritesh

knowledge about the proceeding. Therefore, the application is not tenable. Hence, it is prayed to reject the application.

4) Heard both sides at length. Perused the record. It is vehemently argued that, the present complaint is private complaint. After filing of the complaint, the Magistrate is required to be applied his mind for taking cognizance. But, the Magistrate did not apply his mind with intent to take cognizance of the complaint. No offence is made out. Therefore, the complaint is deserves to be rejected under Section 203 of the Code of Criminal Procedure. There is no rule that how many amount of stock is to be kept by registered practitioner in his hospital/dispensary. The complainant made inference that, the accused had sold out the medicines to the public. Therefore, it is prayed that the complaint be dismissed by invoking the provisions under Section 203 of the Code of Criminal Procedure.

5) Per contra, the learned APP has submitted that, section 203 of the Code of Criminal Procedure is not at all applicable to the case. The accused has committed the offences under Drugs and Cosmetics Act. The accused cannot take benefit of not passing the order of issue process. There are sufficient materials on record against the accused. Order of summons is passed against the accused. Whether the provisions of Schedule ‘K’ of Drugs and Cosmetics Rule 1945 are

3 Reg. Cri. Case No. 298/2015 State -v- Dr. Ritesh

applicable or not, is a matter of merit. Hence, it is prayed to reject the application.

6) Perused the record. On perusal of the complaint at Exh. 1, it appears that on 17.08.2015, my learned predecessor has passed order that ‘accused absent. Issue summons to him.’ It is the contention of the accused that, the court did not apply his mind and did not pass order of issue process.

7) On perusal of letter at Exh. 13, it appears that the complainant has informed to the accused regarding filing of the complaint in the court on mobile on 28.04.2015 and 29.04.2015. However, the accused had informed that, he will not come personally and his counsel will remain present. From the said letter, it makes clear that the complainant had informed to the accused for filing of present complaint in the Court. On 17.08.2015, my learned predecessor after going through the record, has passed the order that, ‘accused absent and issue summons to him’. Therefore, it cannot be said that, my learned predecessor did not apply his mind. Order of issuance of summons is nothing but issue process against the accused. Mere not mentioning the word ‘issue process’, does not affect to the contents in the complaint.

8) The learned counsel of the accused submitted that, the complaint be dismissed by taking course of Section 203 of the Code of Criminal Procedure. On going through the

4 Reg. Cri. Case No. 298/2015 State -v- Dr. Ritesh

provisions under Section 203 of the Code and the facts of the present case, it makes clear that the provisions under Section 203 of the Code, is not applicable at all.

9) On going through the complaint and the documents, it appears that on 27.10.2014, the office of the complainant has received written complaint stating that, ICU Unit of Shweta Hospital Multi Specialty is engaged in activities of purchasing medicine for ICU without any licence and not keeping record of medicine sale and purchase. On 30.10.2014, the complainant has visited the said premises and made inquiry about the said fact and found that the accused maintained distribution record of drugs after 01.04.2014. There was no purchase invoice and distribution record of drugs maintained by the accused before 01.04.2014. The accused has given cash memo or bill to his patients in which costs of medicine sold to patients are included. There are sufficient material against the accused.

10) The learned counsel of the accused submitted that, as per Rule 123 of Drugs and Cosmetics Rule 1945, the drugs specified in Schedule ‘K’ are exempted for the provisions of Chapter IV of the Act. It is material to mention that whether Schedule ‘K’ of the Rules are applicable or not is a triable issue and issue of merit. Therefore, at this stage, the submissions of the learned counsel of the accused has no force.

11) It is the contention of the accused that he did not

5 Reg. Cri. Case No. 298/2015 State -v- Dr. Ritesh

receive summons. But, the court has issued bailable warrant against him. As stated above, the complainant had already informed to the accused about filing of the present case in the court vide letter at Exh. 13. Thereafter, summons has been issued to the accused but in vain. It is reported by the concerned Clerk of the Court that one of the lady junior Advocate of the senior learned counsel of the accused was coming to take dates of the case even prior to appearance of the accused in the case. The said fact also indicates the knowledge of the case to the accused.

12) From the aforesaid discussion, the application has no substance. In the result, I proceed to pass following order.

ORDER

1) The application at Exh. 12 is rejected. Dictated in open court.

 

Date : 06/03/2020

( A. R. Gunnal ) Chief Judicial Magistrate

Chandrapur