Dr. Ritesh S/O Nandkishorsingh ... vs State Of Mah. Thr. Shri ...
2021 Latest Caselaw 9253 Bom

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           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...

 RESPONDENT :-                      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.

 -------------------------------------------------------------------------------------------
                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.

 KHUNTE





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 3.            Heard.

4. Admit. The present application is heard finally with the

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

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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

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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

KHUNTE