IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.09.2009 C O R A M THE HONOURABLE MR.JUSTICE K.MOHAN RAM Criminal Original Petition No.21643 of 2005 and Crl.M.P.No.6219 and 6220 of 2005 1.M/s. Pondy Chemicals Kannia Koil, Manapet, P.O., Pondicherry 607 402 2.Thiru K.Meikandasamy, Age 42 years, S/o. Thiru Kumaravelu, Managing Partner of M/s. Pondy Chemicals, Pondicherry 607 402 .. Petitioners -Vs.- Tamil Nadu State Represented by M.N.Sridhar, Drugs Inspector Park Town II Range, Office of the Assistant Director of Drugs Control, Zone I, 259-261 Anna Salai, Chennai 600 006 .. Respondent Criminal Original Petition filed under Section 482 of the Criminal Procedure Code to call for the records of the proceedings in C.C.No.5694 of 2005 on the file of the learned XV Metropolitan Magistrate Court, George Town, Chennai 1 and quash the same. For Petitioners : Mr. R.Subramanian, Senior Counsel, for, Mr. R.Chakravarthy For Respondents : Mr. N.Kumanan, Govt. Advocate (Crl. Side) - - - - - O R D E R
The petitioners herein who are accused 1 and 2 in C.C.No.5694 of 2005 on the file of the XV Metropolitan Magistrate, George Town, Chennai, and who are facing trial for an alleged offence under Sections 18, 27 (c) and 32 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “the Act”) have filed the above Criminal Original Petition seeking to quash all further proceedings therein.
2. The brief facts which are necessary for the disposal of the above Criminal Original Petition are set out below:-
On 05.01.2004 the Drugs Inspector, Part Town II Range, the respondent herein, inspected the medical stores situated at Government General Hospital, Chennai 3, for drawing samples. The Medical Stores Officer Incharge had handed over a letter dated 03.01.2004 stating that TNMSC supply of providone iodine solution manufactured by Pondy Chemicals is not in good condition and referred for further action. The Batch Number of the drug is 773. The Drug Inspector had drawn sample of Providone Iodine Solution. I.P. 7.% W/V, B.No.773; M/D Jan 2003; E/D December 2004 manufactured by M/s. Pondy Chemicals, Pondicherry 4 x 500 ml under Form 17 No.067965 dated 05.01.2004 as per the procedure laid down under Section 23 of the Act. Simultaneously, a different batch No.836 4 x 500 ml Providone Iodine Solution I.P. 7.5%. W/V manufactured by the same company was also drawn for analysis under Form 17 No.067966 dated 05.01.2004; both the samples were sent for analysis to the Government Analyst (Drugs), Drugs Testing Laboratory, Chennai 6, under Form 18 No.797 dated 05.01.2004 (for B.No.773) and Form 18 No.7972 dated 05.01.2004 (for B.No.836) respectively.
3. The report of analysis was received by the respondent on 04.02.2004 wherein Batch No.773 has been declared as not of standard quality by the Government Analyst (Drugs), Drugs Testing Laboratory, Chennai 6, for the reason that the sample does not conform to I.P. Specification for Providone Iodine Solution in respect of assay wherein the available Iodine (In Providone Iodine) in the sample is found to contain ‘Nil’. The respondent in his letter dated 09.02.2004 called upon the Medical Stores Officer Incharge to furnish the details of the person from whom the impugned drug was acquired. The Medical Stores Officer Incharge informed the respondent that the impugned drug was acquired from the District Drug Warehouse, Anna Nagar, Chennai 102. The respondent sent a letter dated 19.02.2004 to the Warehouse Incharge, TNMSC Ltd., Chennai 102, calling for the explanation under Section 18 (a) (i) of the Act for having distributed a not of standard quality drug which is of spurious in nature. The Warehouse Incharge, sent a reply dated 15.03.2004 informing that the impugned drug was acquired from the District Warehouse, Thiruvannamalai. In turn, the respondent addressed a letter dated 24.03.2004 to the District Warehouse, Thiruvannamalai, to furnish the details of the purchase and distribution particulars of the impugned drug.
4. By a letter, dated 08.05.2004, the District Warehouse Incharge, Thiruvannamalai, informed the respondent that the impugned drug was acquired from M/s.Pondy Chemicals, Pondicherry. Thereafter, a show cause memo dated 26.05.2004 was sent to the manufacturer, M/s. Pondy Chemicals, Kanniakoil, Manapet P.O., Pondicherry, calling for an explanation for the contravention of Section 18 (a) (i) of the Act r/w Section 17 (B) (d) of the Act for having manufactured and distributed a not of standard quality drugs which is of spurious in nature. A reply was sent by the manufacturer on 21.08.2004 stating that the reasons for poor quality may be due to poor conditions of storage and there is every possibility of evaporation of Iodine due to improper weathering and fluctuation in the room temperature and they also enclosed the other details of manufacture, analytical, distribution particulars of the impugned drug. From the reply of M/s.Pondy Chemicals, Pondicherry, the respondent observed that the raw materials used in Batch No.773 has not been sterilized properly. Therefore, the respondent filed a complaint for contravention of Section 18 (a) (i) of the Act read with Section 17-B (d) of the Act for having manufactured and sold a not of standard quality drug which is spurious in nature under Section 27 (c) of the Act. The said complaint was taken on file and process was issued to the accused. Being aggrieved by that, the above petition has been filed under Section 482 of the Criminal Procedure Code.
5. Heard the learned counsel on either side.
6. Learned senior counsel appearing for the petitioners submitted that though the analysis report was furnished to the petitioner on 26.05.2004, the third sample taken by the respondent was not furnished to the Manufacturer but the same was furnished only on 20.09.2004. According to the learned senior counsel for the petitioners, as per Section 23 (4) (3) of the Act, the third portion shall be sent by the Drug Inspector to the person whose name, address and other particulars have been disclosed under Section 18-A of the Act and the first petitioner is the manufacturer of the goods and such particulars have been furnished under Section 18-A of the Act by the distributor and as such under Section 23 (4) (3) the third sample ought to have been sent by the Drug Inspector to the first accused and the failure to sent so, vitiates the entire proceedings. The next contention of the learned senior counsel for the petitioners is that admittedly the alleged spurious drug had been manufactured by the accused at Pondicherry and the samples alone were taken at the Government General Hospital, Chennai, but the distributors have not been arrayed as the accused and the prosecution has been launched only against the manufacturers and as such the prosecution launched at Chennai is bad, since the Court at Chennai has no territorial jurisdiction to entertain the complaint as admittedly the manufacturing activity had taken place only at Pondicherry. He further submitted that under Section 177 of the Criminal Procedure Code, every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. He further submitted that since the drug in question had been manufactured at Pondicherry, the offence if at all had been committed only at Pondicherry and not at Chennai and therefore the Court at Chennai has no jurisdiction to entertain the complaint. In support of his contention that the procedure contemplated under Section 23 (4) (3) of the Act has not been followed the learned senior counsel for the petitioners relied upon a decision reported in AIR 1968 MADHYA PRADESH 238 (Vol. 55, C. 64) (Drugs Inspector, M.P., v. M/s. Chimanlal and Co. and others). In the said decision, in paragraph 37, it is observed as under:-
“37. The Government Advocate contends that it is not necessary that the Government Analyst should be examined and his report can be taken as evidence. We are not at all in agreement with this interpretation of Section 25 (3). Section 25 has to be read along with Section 22 of the Act which describes the powers of Inspectors. Under Section 22 (b) the Inspectors are authorised to take samples of any drug which is being manufactured or being sold or is stocked or exhibited for sale or is being distributed. It is after taking samples that the Inspector has to sent them to the Government Analyst. Section 23 speaks of procedure how the Inspectors would take samples. It is after observing all these formalities, that Section 25 (3) comes into operation.”
Basing reliance on the aforesaid passage the learned senior counsel submitted that only after observing all the formalities prescribed in Section 23 of the Act, Section 25 (3) of the Act comes into operation. According to the learned senior counsel, without following the procedure contemplated under Section 23 (4) (3) of the Act, the Drug Inspector, is not competent to proceed further. He submitted that since the manufacturer alone has been prosecuted there is no territorial jurisdiction for the Chennai Court to entertain the complaint.
7. On the aforesaid submissions, the learned Government Advocate (Crl. Side) was heard. Learned Government Advocate (Crl. Side) submitted that under Section 179 of the Cr.P.C., the complaint is maintainable. In support of the said contention, the learned Government Advocate (Crl. Side) relied upon a decision reported in 1997 CRI. L.J. 1269 (M/s. Medisearch Laboratories v. State of Goa). In the said decision, in paragraph 11, it has been laid down as under:-
“11. The matter can be looked at from another angle. The drugs are manufactured for the purpose of sale to the consumers and the actual consequence of misbranded manufactured drug is on the consumer. This consequence is in fact integral part of manufacture since manufacture of drug without its sale, has no meaning. The misbranded drugs having delirious and dangerous consequence on the consumer, may spread in various parts of the Country. It is not possible to take the view that the manufacturer can be prosecuted only at the place of manufacture of drugs, because such stand may lead to escape of defaulting manufacturers from prosecution. There may be cases where the prosecution is satisfied that in view of Section 19 (3) of the Act, the seller is not liable for prosecution. Drug Inspectors, under Section 22 of the Act, are empowered to take samples within local limits of the area in which they are appointed. They can file complaints only in the Court having jurisdiction over the local limits of the area in which they are appointed. They can file complaints only in the Court having jurisdiction over the local limits of the area in which they are appointed. In such eventualities, if the seller cannot be prosecuted in view of Section 19 (3) of the Act, the drug inspector will have no power to file complaint in the Court in whose jurisdiction the adulterated drug was manufactured. This would mean that the manufacturers of drugs would not be subject to prosecution in the State in which the adulterated drug is found for the purpose of sale and distribution. Moreover, under Section 32 of the Act even aggrieved consumer can file complaint where the adulterated drug was sold. It is the consumer who ultimately bears the brunt of such drug. In the absence prosecution of seller, who may be protected under Section 19 (3) of the Act, the consumer will be forced to file the complaint at the place where the drug in question was manufactured which may be far off place. Moreover, even though initially the prosecution may be launched against both, the manufacturer and the seller, but in the course of trial, the seller may establish that he is protected under Section 19 (3) of the Act and, in such eventualities, the trial against the manufacturer may also be questioned on this count”.
8. Learned Government Advocate (Crl. Side) submitted that as per Section 179 of the Criminal Procedure Code, the offence is triable where the act is done or where the consequence has ensued. According to the learned Government Advocate (Crl. Side), the drug manufactured by the accused had been kept in the Government General Hospital, Chennai, for being distributed to the patients and as such the consequence has ensued only at Chennai and therefore, as per the provisions contained in Section 179 of the Cr.P.C., the Court at Chennai has got territorial jurisdiction to entertain the complaint.
9. Learned Government Advocate (Crl. Side) submitted that the details about the manufacturer was received as per Section 18-A of the Act only on 06.03.2004 and on 26.05.2004 the show cause notice was sent and on the same day, it was sent to the manufacturer and on the same day, the second sample was also sent to the Court. He further submitted that in Section 23 (4) (3) of the Act, no time limit is prescribed to send the third sample to the manufacturer and as such since the sample was ultimately served on the petitioners on 20.09.2004, no prejudice whatsoever has been caused to the petitioners and as such there is no violation of provisions contained in Section 23 (4) (3) of the Act. In the alternative, the learned Government Advocate (Crl. Side) submitted that under Section 25 (3) of the Act, a report signed by the Government Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under Section 18-A of the Act, has within twenty-eight days of the receipt of a copy of the report, notified in writing the inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. According to the learned Government Advocate (Crl. Side), the aforesaid option available to the manufacturer had not been availed or exercised by the manufacturer since the manufacturer had not within the stipulated period of twenty-eight days after receipt of the copy of the report notified in writing the Inspector or the Court before which the proceedings in respect of the samples are pending that the petitioners intend to adduce evidence in contravention of the report; having failed to exercise that option available to the petitioners under Section 25 (3) of the Act, it is not open to the petitioners to contend as aforesaid.
10. Learned Government Advocate (Crl. Side) further submitted that under Section 25 (4) of the Act also the petitioners could have approached the Court before which the proceedings are pending to get the samples analysed by the Central Drugs Laboratory, but the petitioners have not availed that opportunity also. Therefore, the learned Government Advocate (Crl. Side) submitted that the aforesaid contention of the learned senior counsel for the petitioners that the non-compliance of the provisions contained in Section 23 (4) (3) of the Act will vitiate the proceedings is untenable.
11. I have considered the aforesaid submissions made by the learned counsel on either side, perused the materials available on record and the relevant provisions of the Act.
12. As far as the contention of the learned senior counsel for the petitioners regarding the alleged non-compliance of the provisions contained under Section 23 (4) (3) of the Act is concerned, as rightly contended by the learned Government Advocate (Crl. Side), no time limit has been fixed in the said provision for sending the third sample to the manufacturer and admittedly the third sample was sent to the manufacturer on 20.09.2004 and as such it cannot be said that the third sample was not sent to the manufacturer. Further, as rightly contended by the learned Government Advocate (Crl. Side), options available to the manufacturer under Section 25 (3) (iv) of the Act have not been availed off by the petitioners and therefore it cannot be said that the belated serving of the third sample on the manufacturer has caused any prejudice to the petitioners and therefore the said contention of the learned senior counsel for the petitioners cannot be countenanced.
13. As far as the question of lack of territorial jurisdiction on the part of the Chennai Court to entertain the complaint is concerned, it has to be pointed out that the decision reported in (1984) CRI. L.J. 1153 (State of Punjab v. Nohar Chand) answers the contention. Though the drug in question was manufactured at Pondicherry, admittedly, the same was kept in the General Hospital, Chennai, for being distributed to the patients and as such the consequence has ensued at Chennai and therefore under Section 179 Cr.P.C., the Court at Chennai has got jurisdiction to entertain the complaint and try the offence. As laid down in the decision reported in 1997 CRI. L.J. 1269 (referred to supra) the fact that the distributor has not been arrayed as the accused will not have any effect on the territorial jurisdiction of the Chennai Court to entertain the complaint. As laid down in the aforesaid decision, if the seller cannot be prosecuted in view of Section 19 (3) of the Act, the Drug Inspector will have no power to file complaint in the Court in whose jurisdiction the adulterated drug was manufactured.
14. Further, in the decision reported in 1984 CRI. L.J. 1153 (referred to supra) the Apex Court has laid down as under:-
“7. Now if manufacturing sub-standard fertiliser is by itself an offence and marketing the sub-standard fertiliser is itself a distinct offence but they are so inter-connected as cause and effect, both can be tried at one or the other place. If one manufacturers the sub-standard fertiliser, wherever it is marketed the inter-relation or causal connection is of cause and effect. The situation will be adequately covered by Secs. 179 and 180 of the Code of Criminal Procedure. We are in agreement with the later decision of the Division Bench rendered on March 9, 1983 that the Court where the sub-standard fertiliser is being marketed will equally have the jurisdiction to try the manufacturer of sub-standard fertiliser. This is so obvious that any further discussion appears to us to be superfluous.”
The said decision of the Apex Court squarely applies to the facts of this case and as such the second contention of the learned senior counsel for the petitioners does not merit acceptance.
15. For the aforesaid reasons, the above Criminal Original Petition fails and the same is dismissed. Consequently, the connected Crl.M.Ps are closed.
18.09.2009
Index : Yes / No
Web : Yes / No
srk
K.MOHAN RAM, J.,
srk
To
1. The Drugs Inspector, Park Town II Range,
Office of the Assistant Director of Drugs Control, Zone I,
259-261 Anna Salai, Chennai 600 006
2. XV Metropolitan Magistrate Court, George Town, Chennai 1
Crl.O.P.No.21643 of 2005 and
Crl.M.P.No.6219 and 6220 of 2005