Madras High Court
Dr.S.Athilakshmi vs The State Rep By on 21 June, 2022
CRL.O.P.No.5579 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 15.06.2022
Date of Verdict : 21.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.5579 of 2020
and Crl.M.P.Nos.3139 & 3141 of 2020
Dr.S.Athilakshmi ... Petitioner
Vs.
The State Rep by
The Drugs Inspector,
Villivakkam Range Zone II,
Chennai – 600 006. ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the entire records pertaining to the case in C.C.No.7135 of
2018 on the file of the learned X Metropolitan Magistrate, Egmore, Chennai
and quash the same as against the petitioner.
For Petitioner : Mr.R.Anand
For Respondents : Mr.A.Gopinath
Government Advocate (Crl. Side)
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CRL.O.P.No.5579 of 2020
ORDER
This petition has been filed to quash the proceedings in
C.C.No.7135 of 2018 on the file of the learned X Metropolitan Magistrate,
Egmore, Chennai, thereby taken cognizance for the offences under Sections
27(b)(ii) of the Drugs and Cosmetics Act, 1940 (herein after called as “the
Act”) as against the petitioner.
2. The respondent filed complaint as against the petitioner for the
contravention of Section 18(c) of the Act, punishable for the offences under
Section 22(b)(ii) of the Act. On receipt of the complaint forwarded by the
Director of Drugs Control, Chennai-6, the respondent inspected the premises
of Skin and Bones Clinic and situated at No.87, Red Hills Road (North),
Villivakkam, Chennai-49, in the presence of the petitioner and noticed that the
certain facts and deviations. The petitioner was found stocked the drugs for
sale without holding any drugs licence. The petitioner had also stocked the
drugs for sale without holding drugs licence. The petitioner had also sold drugs
without holding drugs licence under sales bills. Therefore, the petitioner is
contravened under Section 18(c) of the Act for having stoked for sale and sold
drugs without holding drugs licence.
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CRL.O.P.No.5579 of 2020
3. The learned counsel appearing for the petitioner would submit
that the petitioner was issued with show cause notice dated 05.07.2016 and
submitted her detailed explanation. However, it was found unsatisfactory and
filed the present impugned complaint. The petitioner is working as an Assistant
Professor and Civil Surgeon at Royapettah Medical College, Chennai and she
can do her practice in medicine and she is entitled to dispense with medicine to
her patient and as such, she cannot be prosecuted under Section 21(b)(ii) of the
Act. The Rule No.6.3 of the Medical Counsel of India Rules enable the doctor
to cause dispense of medicine to their own patients. Mere possession of bills
does not mean that the petitioner is selling the medicines in the open separate
counter. In fact, the respondent failed to examine any private witnesses to
prove that the petitioner is selling medicines to general public. Therefore, mere
possession of drugs cannot mulct criminal liability upon the petitioner.
3.1. He further submitted that at the time of inspection, the respondent
failed to follow any mandatory provisions with the preparation of Form 17,
while making search. Further while according sanction, the sanctioning
authority failed to apply its mind and without considering the explanation
submitted by the petitioner accorded sanction to prosecute the petitioner.
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CRL.O.P.No.5579 of 2020
3.3. He also submitted that the drugs specified in Schedule “K” shall
be exempted from the provisions of the Chapter IV of the Act and the Rules
made thereunder in that Schedule. The offence as alleged by the respondent
fell under the Chapter IV of the Act. He also pointed out that under Schedule
“K” Item 5 provides that the drugs supplied by a registered medical
practitioner to his own patient or any other 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 importation, 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. Hence he prayed for quashment of the proceedings.
4. Per contra, the learned Government Advocate (Crl. Side) filed
counter and submitted that the petitioner was in possession of drugs and bills
as such she contravened Section 18(c) of the Act which is punishable under
Section 27(b)(ii) of the Act. Hence, he vehemently opposed for allowing this
petition.
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CRL.O.P.No.5579 of 2020
5. Heard Mr.R.Anand, learned counsel appearing for the petitioner
and Mr.A.Gopinath, learned Government Advocate (Crl. Side) appearing for
the respondent police.
6. Admittedly, the following items of drugs were found stocked for
sale without holding any drug licences by the petitioner.
S. M.R.P.
Name of the Drug Batch No. Qty. Seized
No (Rs.)
1 Denidol lotion 50 ml E1852 1 No. 198.50
2 Salico lotion 30 ml 805 4 Nos 75/30ml
3 A-CN Gel 20 gms 36 1 No. 98/20 gms
4 Tebif Gel 10 gms 017 9 Nos 47.90/10 gms
5 Soltop-S 6% lotion (30 ml) SN501 4 Nos. 125/30 ml
6 Mycolin cream 15 gms 5400 3 Nos. 115/15 gms
7 Mopry 2% ointment 021 4 Nos. 75.60/5 gms.
8 Momtop-S ointment (10 MM401 1 No. 145/10 gms
gms)
9 ESM Cream (10 gms) 11 4 Nos. 76/10 gms.
10 Nu-Whitfield Ointment (20 EP531 7 Nos. 40/20 gms.
gms)
11 Momesone Cream (15 gms.) S011 3 Nos. 82/15 gms
12 Sudif Cream (10 gms) 026 4 Nos. 99/10 gms
13 CAP Gel (15 gms) 4500 1 No. 156/15 gms.
14 Kenozole Cream (30 gms.) KN504 2 Nos. 125/30 gms
15 Soltop-S 3% ointment SO502 1 No. 125/30 gms.
16 Zylo AC gel 2.5% (20 gms) 3747 1 No. 93/20 gms.
17 Ketzi cream (30 gms) 3987 1 No. 99.74/30 gms.
18 Ketoof lotion (60 ml) 222 2 Nos. 150/60 ml.
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CRL.O.P.No.5579 of 2020
Further the petitioner sold drugs without holding drug licence under sales bills
as follows :-
S.No. Bill No & Date
1 409 dated 24.02.2022
2 423dated 09.03.2016
3 426 dated 11.03.2016
4 424 dated 09.03.2016
5 428 dated 11.03.2016
Further the petitioner had no drugs licence to stock or sell the drugs.
7. Though the petitioner is a practicing doctor, the registered
medical practitioner can keep medicines under Item 5 of Schedule “K” of the
Act subject to certain conditions. The provision is very clear that the medical
practitioner should not keep an open shop, selling across the counter and
engaged in the importation, manufacture, distribution or sale of drugs.
Whereas the petitioner had sold the drugs under various sales bills as she was
engaged in sales were no exemption were provided under Schedule K of the
Drugs and Cosmetics Rules. It is relevant to extract the provision under
Section 18(c) of the Act as follows :-
“18. Prohibition of manufacture and sale of
certain drugs and cosmetics:-
(c) manufacture for sale or for distribution
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CRL.O.P.No.5579 of 2020
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 prupose under this Chapter.”
Therefore, the petitioner contravened Section 18(c) of the Act and she sold the
medicines vide sales bills in the name of Skin and Bone Clinic. The said clinic
is not a licenced premises. Section 27(b)(ii) of the Act reads as follows :-
“ 27. Penalty for manufacture, sale etc., of drugs in
contravention of this Chapter :-
(b)(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.”
8. That apart, the respondent confers with power to inspect and to
take samples of any drugs of cosmetics, which is being manufactured or being
sold or is stocked or exhibited or offered for sale or is being distributed and
from any person who is in the course of conveying, delivering or preparing to
deliver such drug or cosmetic to a purchaser or a consignee. Thus, the
respondent has complied with the mandatory provisions which deal with
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CRL.O.P.No.5579 of 2020
taking sample for analysis by preparing Form-17 which is an intimation to
person from whom sample is taken. That apart, as per Section 22(1)(cc) of the
Act, the Drugs Inspector can examine any record, register, document or any
other material object found and seize the same if he has reason to believe that
it may furnish evidence of the commission of an offence punishable under the
Act or Rules made thereunder.
9. Further the other grounds raised by the learned counsel appearing
for the petitioner are mixed question of facts and it has to be gone into full-
fledged trial before the trial Court. In this regard it is relevant to rely upon the
judgment of the Hon'ble Supreme Court of India passed in Crl.A.No.579 of
2019 dated 02.04.2019 in the case of Devendra Prasad Singh Vs. State of
Bihar & Anr., as follows:-
“12.So far as the second ground is concerned, we are
of the view that the High Court while hearing the
application under Section 482 of the Cr.P.C. had no
jurisdiction to appreciate the statement of the witnesses and
record a finding that there were inconsistencies in their
statements and, therefore, there was no prima facie case
made out against respondent No.2. In our view, this could
be done only in the trial while deciding the issues on the
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CRL.O.P.No.5579 of 2020
merits or/and by the Appellate Court while deciding the
appeal arising out of the final order passed by the Trial
Court but not in Section 482 Cr.P.C. proceedings.
13.In view of the foregoing discussion, we allow the
appeal, set aside the impugned order and restore the
aforementioned complaint case to its original file for being
proceeded with on merits in accordance with law.”
10. Recently, the Hon'ble Supreme Court of India dealing in respect
of the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the case
of Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it has been
held as follows:
“19. After perusing the impugned order and on
hearing the submissions made by the learned senior
counsels on both sides, we are of the view that the
impugned order passed by the High Court is not
sustainable. In a petition filed under Section 482 of
Cr.P.C., the High Court has recorded findings on several
disputed facts and allowed the petition. Defence of the
accused is to be tested after appreciating the evidence
during trial. The very fact that the High Court, in this
case, went into the most minute details, on the allegations
made by the appellant-C.B.I., and the defence put-forth by
the respondent, led us to a conclusion that the High Court
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CRL.O.P.No.5579 of 2020
has exceeded its power, while exercising its inherent
jurisdiction under Section 482 Cr.P.C.
20.In our view, the assessment made by the High
Court at this stage, when the matter has been taken
cognizance by the Competent Court, is completely
incorrect and uncalled for.”
11. Further the Hon'ble Supreme Court of India also held in the order
dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of M.Jayanthi Vs.
K.R.Meenakshi & anr, as follows:
"9. It is too late in the day to seek reference to any
authority for the proposition that while invoking the power
under Section 482 Cr.P.C for quashing a complaint or a
charge, the Court should not embark upon an enquiry into
the validity of the evidence available. All that the Court
should see is as to whether there are allegations in the
complaint which form the basis for the ingredients that
constitute certain offences complained of. The Court may
also be entitled to see (i) whether the preconditions requisite
for taking cognizance have been complied with or not; and
(ii) whether the allegations contained in the complaint, even
if accepted in entirety, would not constitute the offence
alleged.
..............
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CRL.O.P.No.5579 of 2020
13. A look at the complaint filed by the appellant
would show that the appellant had incorporated the
ingredients necessary for prosecuting the respondents for the
offences alleged. The question whether the appellant will be
able to prove the allegations in a manner known to law
would arise only at a later stage...................."
The above judgments are squarely applicable to this case and as such, the
points raised by the petitioner cannot be considered by this Court under
Section 482 Cr.P.C. However, considering the facts and circumstances, the
personal appearance of the petitioner is dispensed with and she shall be
represented by a counsel after filing appropriate application. The petitioner
shall be present before the trial Court at the time of furnishing of copies,
framing charges, questioning under Section 313 Cr.P.C. and at the time of
passing judgment.
12. Accordingly, the Criminal Original Petition stands dismissed.
Consequently, connected Miscellaneous Petitions are also closed.
21.06.2022
Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
rts
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CRL.O.P.No.5579 of 2020
G.K.ILANTHIRAIYAN, J.
rts
To
1. The X Metropolitan Magistrate,
Egmore, Chennai.
2. The The Drugs Inspector,
Villivakkam Range Zone II,
Chennai – 600 006.
3. The Public Prosecutor
Madras High Court,
Chennai.
order in
CRL.O.P.No.5579 of 2020
and Crl.M.P.Nos.3139 & 3141 of 2020
21.06.2022
https://www.mhc.tn.gov.in/judis
