Dr. Dilip Pundalik Patil vs The State Of Maharashtra And Anr
2017 Latest Caselaw 9829 Bom

                                         (1)                       Cri.Appln. 2535 of 2017



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD
                                    
                  CRIMINAL APPLICATION NO.2535 OF 2017

.     Dr.Dilip Pundalik Patil
      Aged:47 years, Occu.: Medical 
      Practitioner,
      R/o.Near Bus Stand, 
      At.Post.Bhadgaon, Tal.Bhadgaon,
      Dist.Jalgaon.                                       ..Applicant

                       VERSUS

1)    State of Maharashtra

2)    Dr.Anil M.Manikrao
      Drug Inspector,
      Office of Assistant Commissioner,
      Food and Drugs Administrative,
      First Floor, Dr.Ambedkar Market,
      Jalgaon.                                            ..Respondents


                           ...
Advocate for Applicant : Mr.Naseem R.Shaikh
APP for Respondents    : Mr.K.S.Patil
                           ...

                                    CORAM :  PRAKASH D.NAIK, J.

RESERVED ON : 27th NOVEMBER, 2017 PRONOUNCED ON : 20th DECEMBER, 2017

JUDGMENT:-

1)    Heard both the sides.  With the consent of both the 





                                     (2)                      Cri.Appln. 2535 of 2017

parties, the application was heard for final disposal.

2) Rule. Rule made returnable forthwith.

3) The applicant is arraigned as accused No.2 in

Regular Criminal Case No.116 of 2013, which is pending

before the Court of Chief Judicial Magistrate, Jalgaon.

The offences were invoked u/s 18(c) punishable under

Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940

(for the sake of brevity, hereinafter referred to as 'the

Act'). The complaint was filed by respondent No.2

against the applicant as well as other persons.

4) The prosecution's case is as follows:-

(a) The complainant is a Inspector appointed u/s 21

and is authorized to institute prosecution u/s 32 of

the Act.

(b) The accused No.1 is the Proprietor of

M/s.Pragati Medical and General Stores situated at

(3) Cri.Appln. 2535 of 2017

House No.245, Room No.1, First Floor, Tongaon,

Tq.Bhadgaon, Dist.Jalgaon. Accused Nos.2 and 3 are

persons illegally selling medicines from the shop of

which the licence has already been cancelled.

(c) The complainant visited the premises of

M/s.Pragati Medical and General Stores on 11.10.2012

to inspect the medical shop. At the time of

inspection, the Proprietor of the shop Mr.Nitin

Shankarrao Patil and Registered Pharmacist of the

shop were absent.

(d) On 29.10.2012, the Licensing Authority issued

show cause notice to the Proprietor of the shop. The

reply dated 8.11.2012, was submitted by the

Proprietor to the said show cause notice. The reply

was not satisfactory. On 4.12.2012, the Licensing

Authority cancelled the license of the said shop

w.e.f.5.12.2012 and intimated about the same to the

Proprietor vide letter dated 4.12.2012.

(4) Cri.Appln. 2535 of 2017

(e) On 27.12.2012, the complainant received

information that the medicines are being sold from

the said shop. On 28.12.2012, the complainant

alongwith others visited the shop and it was noticed

that the sale of medicine was going on. At the time

of visit, accused no.3 was conducting business and he

was about to close the shop. At the same same, it

was noticed that one patient was sitting outside the

shop and he has purchased medicines from the shop.

In view of the above, Muddemal was seized under

Panchanama and Form 16 in the presence of Panchas.

(f) The key of the shop was with accused No.2. He

is doing Allopathic practice of medicines in the

premises and was conducting business with the help of

accused No.3 for his own patient from the shop. The

accused No.2 conducting business in connivance with

accused No.1 i.e. Proprietor of the shop. The

complaint was lodged on 18.2.2013.

(5) Cri.Appln. 2535 of 2017

(g) The learned Magistrate issued summons against

the accused for the offences u/s 18(C) by order dated

22.3.2013.

5) The applicant has invoked the inherent powers of

this Court and challenges the aforesaid proceedings on

several grounds.

6) The learned counsel for the applicant submits that

the applicant is a medical practitioner by profession and

is running a hospital in the name of Ganesh Hospital,

Bhadgoan since last 20 years. The accused No.1 is tenant

of applicant No.1, who has been conducting his business

viz. M/s.Pragati Medical and General Stores. It is

submitted that the applicant is not concerned with the

business of accused no.1 and has no connection with the

said shop, except the fact that the premises is let-out

to the accused No.1. It is submitted that there is no

evidence on record to substantiate that the business was

(6) Cri.Appln. 2535 of 2017

conducted by accused No.2 in connivance with accused No.1

The order of process was therefore passed mechanically

without application of mind. It is submitted that the

prescription relied upon by the prosecution purportedly

issued to patient Walmik koli does not show the name of

the applicant as examining Doctor nor the name of the

patient is reflected on the said prescription. It is

therefore submitted that there is no substance in the

allegation that the said person was patient of the

applicant and had purchased the medicines from the said

shop. The applicant is a landlord and accused no.1 is a

tenant. There is no other relationship between them.

The accused No.3 had forwarded his complaint to the

Assistant Commissioner, Food and Drug Administration

(FDA) on 1.2.2013 against the illegal action of

respondent No.2. The accused No.1 had preferred an

appeal before the Secretary of Drug and Cosmetic and

Medical Education Department, Mantralaya, Mumbai,

challenging the order of cancellation of licence and the

said authority has granted stay to the order of

(7) Cri.Appln. 2535 of 2017

cancellation of licence. It it further submitted that

the complainant does not have requisite qualification for

the post of Drug Inspector. The mandatory qualification

for the said post is Degree in Pharmacy or Pharmaceutical

Science or Medicines with specialization and Clinic

Pharmacology or Microbiology from the University

established in India. The complainant therefore had no

authority to initiate prosecution against the applicant.

7) The learned counsel relied upon the decisions in the

case of Sunil Bharti Mittal M. Vs. Central Bureau

Investigation [AIR 2015 SC, 923].

8) Learned APP submits that there is no substance in

the arguments advanced by the applicant. The submissions

are based on disputed question of facts. Prima-facie

case was made out for issuance of process. There is

evidence against the applicant as a person, who was

conducting the business at the said Pharmacy in

connivance with accused No.1. The evidence on record was

(8) Cri.Appln. 2535 of 2017

sufficient to issue process and therefore at this stage,

the proceedings should not be quashed. The process was

issued on the basis of the documents on record, which

prima-facie makes out the offences and therefore this is

not a fit case to exercise powers u/s 482 of the Code of

Criminal Procedure. The learned APP relied upon the

affidavit in reply and documents annexed thereto and

submitted that there is sufficient evidence for issuance

of process against the applicant accused.

9) In the affidavit filed by respondent No.2, it is

stated that the accused No.2 is running a hospital and

is practicing in Allopathy. The accused No.2 is the

owner of the premises and claims to be landlord of the

said premises, which is let-out to accused No.1. When

the deponent visited the shop, he found that the licence

had expired and the same was not renewed. The accused

No.1 was running the medical shop in the premises owned

by the applicant. The applicant did not produce the

requisite degree certificate inspite of calling upon to

(9) Cri.Appln. 2535 of 2017

do so. The show cause notice was issued to accused No.1.

The explanation was not satisfactory and hence, the

licence of the medical shop was cancelled on 4.12.2012.

The Officers inspected the premises of shop on

28.12.2012. The accused No.1 is running the shop in the

premises of the applicant. The deponent also relied upon

inspection report, which was annexed to the said

affidavit. It is contended that accused Nos.1 and 2 had

signed the Punchanama. The statement of accused No.3 was

recorded. The shop is being running in connivance with

accused No.2. The premises is owned by the applicant and

this is not a fit case to exercise powers u/s 482 of the

Code of Criminal Procedure.

10) On perusal of the documents, it can be gathered that

the accused No.1 is the Proprietor of the subject shop

premises. The license to conduct the business was issued

to accused No.1. The license had expired on 16.4.2012.

This fact would show that there was licence to conduct

the business, which is undisputed and that the same had

( 10 ) Cri.Appln. 2535 of 2017

lapsed on the aforesaid date. The licence was not

renewed. The Authorities thereafter cancelled the

license vide order dated 4.12.2012. It is apparent that

licence was not renewed after 16.4.2012. It is also

pertinent to note that it has been cancelled

w.e.f.5.12.2012. The accused No.1 has challenged the

said order before the appropriate authority, which order

has been temporarily stayed by the concerned authority,

which is evident from the communication dated 23.1.2013.

Both the parties have not pointed out as to whether the

said appeal is decided finally or it is still pending

with the interim order in force.

11) The accused are being prosecuted for the offence u/s

18(c) of the Act punishable u/s 27(b) of the Act. The

relevant portion of Section 18 of the Act 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

( 11 ) Cri.Appln. 2535 of 2017

behalf, no person shall himself or by any other person on his behalf--

(a) .........................................

(b) .........................................

(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 license 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."

12) The present prosecution has been lodged for

commission of the offence u/s 18(c) of the Act. Except

( 12 ) Cri.Appln. 2535 of 2017

making a bald statement that accused Nos.2 and 3 are

selling the medicines from the shop of accused No.1 of

which licence is already cancelled, there is no material

to show that the applicant was conducting the business

from the said premises. The applicant is owner of the

premises. The applicant was not found in the said shop

premises. On the basis of the alleged fact that accused

No.3 was closing the said shop, inference cannot be drawn

that the applicant and the accused No.1 were acting in

connivance with each other in selling the medicines from

the said shop. The license stands in the name of accused

No.1. The license had expired on 16.4.2012. The

premises were raided on 11.10.2012. The licence was

thereafter cancelled on 4.12.2012, which order was

subsequently stayed by the Appellate Authority. The

prosecution cannot be lodged on the basis of inferences.

It is true that the Trial Court had issued process on the

basis of averments made in the complaint. However,

considering the fact that accused No.1 was the licence

holder and was Proprietor of shop premises, the order of

( 13 ) Cri.Appln. 2535 of 2017

process does not depict application of mind. The

prescription, which is purportedly recovered from the

patient by the respondent and the raiding party, does not

mention the name of the patient or the name of the

applicant as a Doctor, who has prescribed the said

medicines. The accused cannot be subjected to the

prosecution on the basis of conjectures.

13) In the case of Sunil Bharti Mittal (supra), the

Supreme Court has observed that the powers u/s 204 has to

be exercised judicially. A person ought not to be

dragged to the Court merely because a complaint has been

filed. If a prima-facie case is made out, the process

can be issued. However, the sufficient grounds for

proceedings appearing in the Section are of immense

importance. It is these words which amply suggest that

the opinion is to be formed only after due application of

mind that there is sufficient basis for proceeding

against the said accused and formation of such opinion is

to be stated in the order. The order is liable to be set

( 14 ) Cri.Appln. 2535 of 2017

aside, if no reason is given therein while coming to the

conclusion that there is prima-facie case against

accused, though the order need not contain detailed

reasons. The accused No.1 is being prosecuted for

violation of Section 18(c) being proprietor of shop

without licence. There is no provision like common

intention or vicarious liability of any other person.

14) Analyzing the factual matrix of the matter as stated

herein above, there is no justification for initiating

prosecution against the applicant. It would be abuse of

process of law to continue the said prosecution. The

order of process and proceedings are therefore liable to

be quashed and set aside. Hence, I pass the following

order:-

ORDER

(I) Criminal Application No.2535 of 2017 is allowed.

( 15 ) Cri.Appln. 2535 of 2017

(II) The order issuing process dated 22.3.2013 passed by the Chief Judicial Magistrate, Jalgaon in Regular Criminal Case No.116 of 2013 and the proceedings in the said case are quashed and set aside.

(III) Rule is made absolute.

(IV) Application stands disposed of.

[PRAKASH D.NAIK, J.]

SPT/Cri.Appln. 2535 of 2017