Allahabad High Court

Dr. Rachna Jindal vs State Of U.P. And Another on 26 May, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:89296
 
Court No. - 87
 

 
Case :- APPLICATION U/S 482 No. - 8158 of 2017
 

 
Applicant :- Dr. Rachna Jindal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Akhilesh Chandra Shukla,Vivek Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Prashant Kumar,J.

1. Heard Sri Vivek Kumar Singh, learned counsel for the applicant, and Sri Shashi Dhar Pandey, learned A.G.A. for the State and perused the record.

2. Despite service of notice, none has appeared on behalf of opposite party no. 2.

3. The present application under Section 482 Cr.P.C. has been filed seeking quashing of the charge-sheet dated 07.10.2016, summoning order dated 16.11.2016, as well as the entire proceedings of Case No. 47439 of 2016 (State vs. Amit Pooniya), arising out of Case Crime No. 948 of 2016, under Sections 18(c) and 27 of the Drugs and Cosmetics Act, 1940 and Section 420 I.P.C., Police Station Sihani Gate, District Ghaziabad, pending before the Court of learned Additional Chief Judicial Magistrate, Ghaziabad.

4. Briefly stated, the applicant is a qualified gynaecologist and the owner of a maternity centre situated at House No. 7-C-31, Patel Nagar II, Ghaziabad. Additionally, she runs an evening O.P.D. clinic at House No. B-1, Nand Gram, Ghaziabad, where she offers free consultations and distributes medicines without charge to underprivileged women between 7:30 P.M. to 9:30 P.M.

5. On 19.07.2016, at around 8:00 P.M., while the applicant was not present at her clinic, a team comprising Drug Department officials, police personnel, and certain persons claiming to be office bearers of a Drug Association, entered the premises and seized medicines kept in an almirah located in the waiting area. Upon the applicant's objection, she was informed that a complaint had been received alleging she was operating a medical store without a valid licence.

6. Consequently, on 20.07.2016, opposite party no. 2, the Drug Inspector, lodged an F.I.R. against one Amit Pooniya, an employee of the applicant. During the investigation, a notice under Section 41-A Cr.P.C. was issued to the applicant on 23.07.2016, directing her to appear before the concerned police station.

7. It is reflected from the case diary that the said Amit Pooniya stated that he was employed by the applicant on a salary of ₹6,000 per month. On 12.09.2016, the Investigating Officer sought clarification from the Chief Medical Officer, Ghaziabad, regarding the legality of storing medicines at a private clinic. The CMO, vide reply dated 15.09.2016, opined that such queries may be answered appropriately by the Drug Inspector.

8. Although the applicant's name was not mentioned in the F.I.R., a charge-sheet was filed against her, and cognizance was taken by the learned Magistrate vide summoning order dated 16.11.2016.

9. By means of the instant application the applicant has challenged the charge-sheet, summoning order as well as entire proceedings of the aforesaid case.

10. Learned counsel for the applicant submits that the applicant is a duly registered medical practitioner legally entitled to practice medicine. She maintains a limited stock of essential medicines solely for free distribution and for attending the patients in need of any emergency. to her patients and does not engage in any commercial activity. Her conduct does not amount to running a medical store and does not attract licensing requirements under the Drugs and Cosmetics Act. It is argued that the charge-sheet was mechanically submitted in absence of any incriminating material and in disregard of the CMO's reply. The entire proceedings are an abuse of the process of law and cause unwarranted harassment to the applicant who is serving the public.

11. Per contra, learned A.G.A. contends that the applicant was operating a medical store without a licence, and 24 different types of medicines were recovered from the premises. It is submitted that no licence for sale of medicines was produced during the raid. Further, Amit Pooniya was found to be an employee receiving ₹6,000 per month salary.

12. I have heard learned counsel for the parties and perused the record.

13. From perusal of the record it is clear that a group comprising officials of the Drug Department, police personnel, and individuals claiming to be office bearers of a Drug Association entered the premises and began seizing medicines kept in the almirah of the waiting area at 07:30 P.M. At that point of time, the applicant was not present, and one of the employees, namely Amit Pooniya, was present. The officers found 24 different types of medicines from the premises, which were packed in three plastic bags and the same were seized by the officers. Thereafter, F.I.R. was lodged.

14. Under Section 18 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the 'Act', a prohibition has been imposed as to the manufacture, sale, etc. of certain drugs and cosmetics. Section 18 reads as follows:

18. Prohibition of manufacture and sale of certain drugs and cosmetics. From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf-

(a)

(b) (sell or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic) which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder;

(c) (manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic), except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter

Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis:

Provided further that the [Central Government] may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the [manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale] or distribution of any drug or class of drugs not being of standard quality.

The punishment for contravention of Section 18(c) is provided under Section 27(b)(ii) which reads as follows:

15. Section 27 lays down penalty if someone stocked or sell the medicines without a valid license. Section 27 reads as follows:-

27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter- Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes-

(b) any drug -

(ii) without a valid licence as required under clause (c) of section 18, shall be punishable with imprisonment for a term which shall [not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more]:

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than three years and of fine of less than one lakh rupees];

A bare perusal of the aforesaid sections clearly shows that Section 18(c) prohibits manufacture for sale or for distribution, or sale, or stocking or exhibiting or offering for sale. However, in this case, the allegation is that the applicant has stocked medicines for sale. The entire emphasis is on the word 'sale' of the medicines from the maternity centre of the applicant.

16. Under Section 33 of the Act, the Central Government can make rules which have to be laid before Parliament for its ratification under Section 38 of the Act. These rules have been framed and are known as the Drugs and Cosmetics Rules, 1940. Rule 123 of the Rules exempts certain drugs from the provisions of Chapter IV of the Act (which includes both Section 18 and Section 27 referred above, which are penal provisions), under certain conditions. Rule 123 reads as under:

"123. The drugs specified in Schedule K shall be exempted from the provisions of Chapter IV of the Act and the rules made thereunder to the extent and subject to the conditions specified in that Schedule."

Entry No. 5 under Schedule (K) are the drugs which are supplied by a registered medical practitioner with which we are presently concerned. The relevant provision of Schedule (K) reads as under Schedule K

(See Rule 123)

Class of Drugs

Extent of Conditions of Exemptions

1.xxxxxxxxxxxxxx

xxxxxxxxxxxxxx

2.xxxxxxxxxxxxxx

Xxxxxxxxxxxxxx

3. xxxxxxxxxxxxxx

Xxxxxxxxxxxxxx

4. xxxxxxxxxxxxxx

Xxxxxxxxxxxxxx

5. Drugs supplied by a registered medical practitioner to his own patient or any drug specified in Schedule C supplied by a registered medical practitioner at the request of another such practitioner if it is specially prepared with reference to the condition and for the use of an individual patient. Provided the registered medical practitioner is not (a) keeping an open shop or (b) selling across the counter or (c) engaged in the transportation, manufacture, distribution or sale of drugs in India to a degree which render him liable to the provisions of Chapter IV of the Act and the rules thereunder.

All the provisions of Chapter IV of the Act and the Rules made thereunder, subject to the following conditions: [1. The drugs shall be purchased only from a dealer or a manufacturer licensed under these rules, and records of such purchases showing the names and quantities

of such drugs, together with their batch numbers and names and addresses of the manufacturers shall be maintained. Such records shall be open to inspection by an inspector appointed under the Act, who may, if necessary, make enquiries about purchases of the drugs and may also take samples for test. 2. In the case of medicine containing a substance specified in [Schedule G, H or X) of the following additional conditions shall be complied with.

a. the medicine shall be labelled with the name and address of the registered medical practitioner by whom it is supplied; b. if the medicine is for extemal application, it shall be labelled with the words [*] "For external use only" 7 or, if it is for internal use with the dose; use of an individual patient c. the name of the medicine or ingredients of the preparation and the quantities thereof, the provided the registered dose prescribed, the name of the patient and the date of supply and the name of the person medical practitioner is not who gave the prescription shall be entered at the time of supply in register to be maintained for the purpose; d. the entry in the register shall be given a number and that number shall be entered on the lable of the container e. the register and the prescription, if any, on which the medicines are issued shall be preserved for not less than two years from the date of the last entry in the register or the date of the prescription, as the case may be. 3. The drug will be stored under proper storage conditions as directed on the label.4. No drug shall be supplied or dispensed after the date of expiration of potency recorded on its container, label or wrapper or in violation of any statement or direction recorded on such container, label or wrapper.]

17. It is evident that the team entered the premises at about 7:30 P.M. and seized medicines stored in an almirah. At that time, the applicant was not present; only her employee, Amit Pooniya, was available. Twenty-four types of medicines were found packed in three plastic bags. Consequently, an F.I.R. was lodged.

18. No gynaecologist can run a maternity centre without having some basic medicines in the centre. However, it cannot be said that medicines which are stocked on the premises were there with an intention to sell it to the general public. The details of the seized medicines were also not given. The medicines found were only of 24 kinds. No pharmacy or chemist shop can run with only 24 different kinds of medicines, if anyone has intention to sell medicines they would have variety of hundreds of medicines and would not stock only 24 different medicines, this shows that there was no intention of selling the medicines over the counter. A small quantity of medicines and that too, of only 24 kinds were found in the premises of the applicant, and hence it would not amount to selling the medicines across the counter in a local shop.

19. From the above facts and circumstances, I am of the considered opinion that no offence is made out. In fact, an exception has been created under Schedule 'K' read with Rule 123 of the rules, and the applicant ought to have been given the benefit of these provisions. The registered medical practitioner should not be put to harassment by government officials or be subjected to trial. It is a perfect case to invoke inherent power under Section 482 Cr.P.C. and set aside the entire proceedings.

20. Accordingly, the instant application is allowed, and the entire proceedings of Case No. 47439 of 2016 (State vs. Amit Pooniya), arising out of Case Crime No. 948 of 2016, under Sections 18(c) and 27 of the Drugs and Cosmetics Act, 1940, and Section 420 IPC, Police Station Sihani Gate, District Ghaziabad, pending in the Court of learned Additional Chief Judicial Magistrate, Ghaziabad, as well as consequential proceedings, are hereby quashed.

Order Date :- 26.5.2025

pks