Madras High Court
Tmt.S.Sindhu vs / on 3 October, 2024
Author: G. Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.20143 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :25.09.2024
Pronounced on :03.10.2024
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.No.20143 of 2024
and
Crl.M.P.Nos.11682 & 11683 of 2024
Tmt.S.Sindhu .. Petitioner/Accused
/versus/
Tamil Nadu State represented by
Drugs Inspector,
Perambur Range,
O/o The Assistant Director of
Drugs Control, Zone-1,
DMS Campus,
Chennai 600 006. .. Respondent/
Complainant
Criminal Original Petition has been filed under Section 482 of
Cr.P.C/Section 528 of BNSS 2023, to call for the records relating to the
C.C.No.7138 of 2018 on the file of the learned X Metropolitan
Magistrate, Egmore, Chennai and quash the same.
1/8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.20143 of 2024
For Petitioner :Mr.A.Velmurugan
For Respondent :Mr.K.M.D.Muhilan
Govt.Advocate (Crl.Side)
------
ORDER
The petitioner herein is the Bachelor of Siddha Medicine and
Surgery (BSMS). She had duly registered with the Tamil Nadu Siddha
Medical Council with Reg.No.3972 of 2012. She is running a clinic by
name “People Care Clinic” which is affiliated to the Noble Hospital,
Chennai. She is practising in Siddha Medicine with qualification and
authorised. While so on 28.02.2017, an official from the Office of
Assistant Director of Drugs Control inspected her clinic on the complaint
alleged to have been sent by one Raghupathy. In the course of the
inspection, Allopathy medicines were recovered from the clinic alleging
that they are in contravention of the Drugs and Cosmetics Act, 1940.
Private complaint by Drugs Inspector under Section 200 of Cr.P.C., for
the offence punishable under Section 27(b)(ii) of Drugs and Cosmetics
Act, 1940, filed.
https://www.mhc.tn.gov.in/judis
2. Challenging the complaint, the petition to quash filed stating
the trial Court failed to apply its mind before taking cognizance. It has
presumed that the petitioner is a quack Doctor unmindful of her
qualification and the Government of Tamil Nadu a Notification in
G.O.(Ms)No.248, Health and Family Welfare (IM 2-2) Department, dated
08.09.2010. The aid GO declares that every medical practitioner holding
the qualification specified in the second, third or fourth schedule to the
Indian Medicine Central Council Act, 1970 and Part III of the Schedule
to the Tamil Nadu Siddha System of Medicine(Development and
Registration of Practitioners) Act, 1997, are entitled to practise modern
scientific system of medicine. Thus, the petitioner can prescribe
Allopathy medicine. Therefore, she has not violated the Drugs and
Cosmetics Act, 1940.
3. Referring the judgment of the Hon'ble Supreme Court in
S.Athilakshmi v. The State Rep.by the Drugs Inspector reported in [2023
https://www.mhc.tn.gov.in/judis
LiveLaw (SC) 194], the learned counsel appearing for the petitioner
submitted that being a registered practitioner in Siddha Medicine,
possessing a small quantity of Allopathy medicine in her clinic will not
amount to selling medicine and it is not an offence as per exception
created under Schedule K read with Rule 123 of the Drugs Rules 1945.
The reply of the petitioner to the show cause notice has not been properly
understood by the complainant. When there is no criminal intention for
possessing the drugs in the clinic, prosecuting a qualified Doctor is
purely an abuse of process of law.
4. The learned Government Advocate (Crl.Side) appearing for
the State submitted that under Rule 123 of the Drugs Rules, 1945, the
drugs specified in Schedule K shall be exempted from the provisions of
Chapter IV of the Act and Rules made thereunder to the extent and
subject to the conditions specified in the schedule. Chapter IV of the Act
deals with manufacture, sale and distribution of drugs and cosmetics.
This Chapter is not applicable to Ayurvedic, Siddha and Unani drugs as
per Section 33(A) of the Drugs and Cosmetics Act. However, it will
https://www.mhc.tn.gov.in/judis
squarely apply to the Allopathy drugs. During the course of inspection,
large quantity of Allopathy drugs were found in the clinic of the
petitioner premises. Hence, the show cause notice dated 27.12.2017 was
caused to the petitioner for not possessing drugs license, which is in
contravention to Section 18(c) of Drugs and Cosmetics Act. The reply of
the petitioner was that the said Section will not attract and the show
cause notice is vague and unintelligible allegation. Since the explanation
was not satisfactory, the complaint filed under Section 200 of Cr.P.C., for
contravening Section 18(c) of the Drugs and Cosmetics Act 1940,
punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940.
5. Heard the learned counsel appearing for the petitioner and
the learned Government Advocate (Crl.Side) appearing for the
Respondent.
6. The petitioner is a holder of BSMS Degree issued by Tamil
Nadu Dr.MGR Medical University, Chennai. She has also duly registered
her name under Tamil Nadu Siddha Medical Council. G.O.Ms.No.248,
https://www.mhc.tn.gov.in/judis
dated 08.09.2010 issued by Health and Family Welfare Department,
which permits registered members of the Tamil Nadu Siddha Medical
Council to practice Modern Scientific System of Medicine for the
purpose of Drugs and Cosmetics Act. Therefore, adopting modern
Scientific System of medicine by the petitioner is not prohibited.
However, the prosecution is for storing Allopathy Drugs in her clinic.
About 29 items of Allopathy drugs manufactured by different
pharmaceutical companies with seal of physician's sample, 15 drugs with
MRP and 3 used drugs were seized from the premises of M/s People Care
Clinic, No.7/22, Janaki Raman Nagar, 1st Main Road, Sembium,
Chennai-11.
7. Section 18(c) of the Drugs and Cosmetics Act, 1940
mandates storing for sale or for distribution, or sell or stock or exhibit or
offer for sale or distribute any drug should be only with license issued for
the said purpose. Section 27(b)(ii) provides penalty for contravening
Section 18(c). The case against the petitioner is not for using modern
scientific system, but for stocking and selling the drugs without license.
https://www.mhc.tn.gov.in/judis
Therefore, the judgment cited supra by the learned counsel appearing for
the petitioner has no application to this case.
8. Hence, this Criminal Original Petition stands dismissed.
However, since the case is of the year 2018, the learned X Metropolitan
Magistrate is directed to dispose of the case as expeditiously as possible.
Consequently, connected Miscellaneous Petitions are closed.
03.10.2024
Index:yes/no
Neutral citation:Yes/no
ari
To
1. X Metropolitan Magistrate, Egmore, Chennai.
2. Tamil Nadu State represented by Drugs Inspector,
Perambur Range, O/o The Assistant Director of
Drugs Control, Zone-1, DMS Campus, Chennai 600 006.
3.The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis
Dr.G. JAYACHANDRAN,J.
ari
delivery Order made in
and
Crl.M.P.Nos.11682 & 11683 of 2024
03.10.2024
https://www.mhc.tn.gov.in/judis
