JUDGMENT
P.N. Sinha, J.
1. This revisional application preferred by the petitioner under Section 482 of the Code of Criminal Procedure (in short Code) is for quashing the criminal proceeding being G.R. Case No. 370/04 arising out of Mahisadal P.S. Case No. 76 dated 9.7.04 under Sections 274 & 275 of the Indian Penal Code (in short IPC) and under Section 27 of the Drugs and Cosmetics Act (in short Act), 1940 now pending in the Court of the learned Sub-Divisional Judicial Magistrate (in short SDJM), Haldia.
2. The prosecution case was started on the basis of First Information Report (FIR) lodged by Srikanta Maity at the Mahisadal P.S. on 9.7.04 at 8.05 p.m. It was alleged in the FIR that on 6.7.04 the informant purchased one phial/bottle of syrup named ‘Bexitone’ from Samanta Medical, a medicine shop owned by the petitioner at Mahisadal. After reaching house the informant opened the packet of the said syrup and found inside the bottle/phial a dead frog was floating. He showed the bottle containing the floating dead frog to local people, and thereafter, without breaking the seal and opening the bottle he came to the police station and lodged FIR against this petitioner and on the basis of it the aforesaid Mahisadal P.S. case was started.
3. Mrs. Pronoti Goswami, learned Advocate for the petitioner submitted that the informant did not produce any cash memo for purchase of the said medicine. The FIR and the other materials do not disclose that the seized bottle/phial of syrup was adulterated as defined in Section 17A of the Act. It was not established that the seized bottle of syrup contained any spurious drug as defined in Section 17B of the Act. The provisions of Section 27 of the Act do not apply at all against the petitioner. The bottle was inside a paper packet which was duly sealed and being so it was not possible for petitioner to know inside contents of the bottle. The petitioner did not sale any adulterated or spurious drug to the informant. The allegations in the FIR can give rise to a suit for damages but, no criminal liability arise against the petitioner. The expert opined that the sample of ‘Bexitone’ was of standard quality. The frog might have entered inside the bottle at manufacturing point and manufacturer may be responsible for the incident and the petitioner is not at all liable in this matter. In support of her contention she cited the decision of Donoghue v. Stevenson, reported in 1932 A.C. 562 : All England Law Reports Reprient Pg. 1. Mrs. Goswami submitted that the police should have started investigation against the manufacturer instead of starting investigation against the petitioner, who is a retailer only. There is no element of any cognizable offence against this petitioner. Continuation of this proceeding against the petitioner would be an abuse of the process of Court and being so the impugned criminal proceeding should be quashed.
4. On the contrary, Mr. Roy appearing for the State submitted that the petitioner as a retailer sold the bottle of syrup to the informant and this is admitted position. ‘Bexitone’ syrup produced by the informant was seized by police and was sent to the State Drugs Control and Research Laboratory at Calcutta. The Government Analyst after examining the said sample bottle and contents therein opined that the sample referred to above is not of standard quality. The report of Government Analyst makes out a prima facie case against the petitioner that he sold adulterated drug to the informant. Accordingly, there are sufficient materials to submit chargesheet in this case. Let the trial be proceeded with and on the basis of evidence let the fate of the case be decided. At this stage there is no ground for quashing the criminal proceeding.
5. I have duly considered the submissions made by the learned Advocates of the parties and perused the revisional application. It is admitted that the informant purchased one bottle/phial of ‘Bexitone’ syrup from the medicine shop of this petitioner. The petitioner runs a medicine shop under the name and style ‘Samanta Medical Hall’ at Rathtola, Mahisadal market. It appears that the bottle was inside a paper packet and on the packet there was imprint of manufacturing date, expiry date, quantity of the bottle, name of the manufacturing company etc. The petitioner, being retailer did not open the paper packet and as demanded by the informant he simply supplied the ‘Bexitone’ syrup. If the paper packet was opened in the medicine shop, it could have been detected that a dead frog was lying inside the bottle. The averments of the FIR itself reveals that the informant after returning to home opened the paper packet of the bottle and thereafter he took the bottle in his hand when he discovered a dead frog was floating inside the bottle. The FIR makes it clear that seal of the bottle/phial was intact and according to the advice of local people, the informant without breaking the seal of the bottle produced the bottle at the Mahisadal Police Station and lodged FIR. The position which transpires is that the paper seal was sealed when the retailer supplied the ‘Bexitone’ syrup to informant and informant broke the seal of paper packet or opened the paper packet at his house. The seal of the bottle was found intact. The retailer, therefore, did not break the seal of paper packet and also seal of the bottle/ phial itself. It presupposes that the frog entered inside the bottle at manufacturing unit and it was not possible for the retailer to put a dead frog inside the bottle and have the bottle and paper pack resealed.
6. The crux for consideration is how far this petitioner, who is a retailer and owner of the medicine shop in question is responsible in this matter. The decision in Donoghue v. Stevenson(supra) referred to by the learned Advocate for the petitioner is not properly applicable in this case. In that reported case a suit for damages was filed against the manufacturer and the manufacturer in defence took plea that he did not owe any duty of care towards the plaintiff. This was a suit on torts as a purchased bottle of ginger beer from a retailer for the appellant, a lady friend. Some of the contents were poured in a tumbler and she consumed the same. When the remaining contents of the bottle were poured into her tumbler, decomposed body of a snail floated out with her ginger beer. The appellant alleged that she seriously suffered in health in consequence of having drunk a part of the contaminated contents. She brought an action against the manufacturer for damage. The House of Lords in the aforesaid decision observed that, the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be liable on breach of duty. In the instant matter a dead frog was found inside the bottle purchased by informant from the medicine shop of this petitioner. The petitioner had the duty to check whether the paper seal was intact or not and whether the manufacturing date and expiry date of the medicine are in order. A retailer cannot sale any expired medicine to any customer. It appears that the bottle had the imprint of manufacturing date September, 03 and expiry date August, 04 and informant purchased the said medicine on 6.7.04. The medicine was thus within the expiry period. The paper seal was intact and checking paper seal and dates of manufacture and expiry retailer gave it to the informant. The retailer performed his duty and adopted all possible precautions or all the possible duties which were entrusted on him. The petitioner is the retailer and not the manufacturer and, moreover, this is not a suit for damages. This is a criminal proceeding based on allegation of committing some offence. Therefore, the decision in Donoghue v. Stevenson(supra) is not properly applicable in this matter. One feature of that decision may become relevant as it indicated that action can be taken against the manufacturer.
7. The question that may arise for consideration whether the petitioner was careless or negligent or performed his duties with diligence and care at the time of selling the bottle of medicine. What amounts to negligence depends upon facts and circumstances of each particular case. In Halsbury’s Laws of England, Third Edition, Vol-28 pages 3 to 4 it has been mentioned that, “Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case and the categories of negligence are never closed. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the accompanying circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury.” The facts and circumstances of the case mentioned above makes it clear that in this case this petitioner took all reasonable care which was possible for him at the time of selling the medicine bottle to the informant.
8. Section 27 of the Act prescribes the penalty for manufacturer, sale etc. of drugs in contravention of this chapter. Section 16 of the Act prescribes what is the standards of quality relating to drugs and cosmetics. Section 17 deals with misbranded drugs, Section 17A deals with adulterated drugs, Section 17B defines which are spurious drugs, Section 17C prescribes which cosmetic would be misbranded cosmetics and Section 17D lays down the definition of spurious cosmetics. The case diary produced on behalf of prosecution reveals that after registration of FIR the police during course of investigation seized the remaining bottles of ‘Bexitone’ syrup from the shop of this petitioner. One sample bottle was sent to the Government of West Bengal, State Drugs Control and Research Laboratory for examination and the Government Analyst by his report dated 27.7.04 opined that the sample ‘Bexitone’ syrup was of standard quality. Subsequently, thereafter the bottle in question which was seized from the informant was sent to the same Government Laboratory for examination. The Government Analyst by his report dated 5.1.05 opined that the said ‘Bexitone’ syrup which contained a small frog is not of standard quality. The prosecution wants to submit chargesheet and to continue the criminal proceeding against this petitioner on the basis of the latter report of Government Analyst. The latter report of Government Analyst cannot be acted upon when from the same laboratory by an earlier report dated 27.7.04 it was opined that the sample of ‘Bexitone’ syrup was of standard quality. In this connection, it should be remembered that the expiry date of the entire batch of ‘Bexitone’ syrup manufactured by M/s. Baroque Pharmaceuticals Pvt. Ltd., Sokhada, District Kheda in Gujarat and sent to the petitioner were with manufacturing date 1.9.03 and expiry date 31.8.04. When the drug became already expired in normal course of time after 31.8.04, the report of Government Analyst dated 5.1.05 on examination of the said medicine after expiry date, cannot be regarded as valid report to base ground of continuation of the criminal proceeding against this petitioner who is a retailer.
9. If the bottle in question seized from informant was sent to the Government Analyst for report before its expiry date and, the report revealed the drug as not of standard quality, then only, question of continuation of the proceeding could have come into picture and, that too, against the manufacturer of the drug and, not against this petitioner who is retailer. Entire story mentioned in FIR makes clear that the frog could not be inserted inside the bottle by the retailer. The frog definitely entered inside the bottle at manufacturing unit and any action that could have been taken in the instant case should have been against the manufacturer and not the retailer. It was not possible for the retailer to find out whether there was anything inside the bottle. If the drug was not a standard quality the fault was at manufacturer’s end.
10. The aforesaid discussion makes it clear that there is no ground of continuation of the criminal proceeding against this petitioner. There was no mens rea at all by this petitioner behind the alleged incident. He was not negligent and his act or omission, if any, did not invite any criminal offence. The petitioner who is a retailer took all possible reasonable care in the instant matter before supplying the medicine bottle to the informant. It would be an abuse of the process of Court to continue the criminal proceeding against this petitioner. If no question of limitation arises the prosecution authority can take necessary steps against the manufacturer. In order to secure ends of justice and to prevent abuse of the process of Court the criminal proceeding against the petitioner requires to be quashed.
11. The revisional application is accordingly allowed. The criminal proceeding being G.R. Case No. 370/04 arising out of Mahisadal P.S. Case No. 76 dated 9.7.04 against this petitioner is hereby quashed.
12. Send a copy of this order to the learned SDJM, Haldia for information and necessary action.
13. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.