Telangana High Court
Zuventus Healthcare Ltd vs The State Of Telangana on 22 November, 2023
1
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.325 of 2019
ORDER:
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the
petitioner/Accused No. 4 Company to quash the proceedings
against the Company in C.C.No.282 of 2017 on the file of
First Additional District and Sessions Court at Nizamabad.
The offences alleged against the Company are under Section
18(a) (i) of Drugs and Cosmetics Act, 1940 (for short 'the Act'),
punishable under Section 27(d) of the said Act.
2. Heard learned counsel for the petitioner and learned
Additional Public Prosecutor for the respondent-State.
Perused the record.
3. The petitioner-Company is arrayed as A-4 in the
complaint on the ground that the Company sold the drug
'Myotop-P' tablets to medical shops. Blister packing when
opened, it was found that the tablet was not coming out as
one unit but broken into two halves, which could not be
consumed. The said complaint was made by a purchaser who
purchased the said drug from M/s.Ananda Medical and
General Stores on 23.04.2015. The complaint was filed on
29.04.2015 with the Drug Inspector. The Drug Inspector
registered the complaint and collected the tablets from
M/s.Ananda Medical and General Stores. The said tablets
were sealed for the purpose of analysis and samples were sent
to the Government Analyst Drugs Control Laboratory,
Hyderabad. On 30.04.2015, the Drug Inspector went to the
premises of this petitioner and issued notice to recall the said
drug from the market. The petitioner is authorized marketer
of the said drug. The drug was produced by A-2 company i.e.,
M/s.GKM New Pharma.
4. it is further the case that samples that were taken were
found to be not of standard quality. A-2/manufacturer tested
the hardness of sample. However, the binding agent was not
present to keep the tablet as one piece. After the visit of the
Drug Inspector, A-2 changed the process of manufacture of
the tablet formulation to overcome the problem.
5. In the Complaint it is stated that 'Myotop-P' tablet is a
research product of petitioner company. The company is
established exclusively for the purpose of manufacturing the
product. Since the tablets were not of standard quality, both
the manufacturer and the drug company who distributed the
drug are liable.
6. Learned Senior counsel appearing for the petitioner
would submit that drug was manufactured, even according to
the complaint by A-2 company and this petitioner was
distributing the same. The role of the distributor is to keep
the drug in proper condition, which was followed even
according to the report of the Drug Inspector, filed along with
the complaint. In the said complaint, it is specifically
mentioned that cool chambers were provided for stocking the
drugs and also provided air conditions for the purpose of
stocking drugs in the required temperature of 2 degrees to 8
degrees or between 22 to 25 degrees. However, there was no
physical stock of the said drug which was found in the
premises at the time of inspection. Under Section 19 (3) of
the Act, if it is shown that the drug while in possession of
person not being the manufacturer was properly stored and
remained in the same state and acquired it, the person shall
not be made liable for contravention of Section 18 of the Act.
7. Learned senior counsel relied upon the judgment of the
Hon'ble Supreme Court in Hasmukhlal D.Vora and Anr. Vs.
State of Tamil Nadu 1, wherein it was held that while it is
true that the quashing of a criminal complaint must be done
only in the rarest of rare cases, it is still the duty of the High
Court to look into each and every case with great detail to
prevent miscarriage of justice.
8. He also relied on M.Sujatha v. State of Tamil Nadu 2,
wherein it is held that a person not being the manufacturer of
a drug or cosmetic shall not be held liable for contravention of
Section if he proves that he acquired the drug or cosmetic
from a duly licensed manufacturer, distributor or dealer.
9. He further relied on P.Sukumar v. State of Tamil
Nadu 3, wherein it was held that if a person acquires a drug or
cosmetic from a duly licensed manufacturer and did not know
and could not have ascertained that the drugs were
manufactured in the contravention of the provisions of the
Act, he cannot be held liable under Sections 18 and 27 of the
Act.
(2022) SCC Online SC 1732
(2020) SCC Online Mad 4666
(2009) SCC Online Mad 1644
10. It is not in dispute that the petitioner is not a
manufacturer. When inspected, the drug was not found in the
premises of this petitioner. However, the paraphernalia
required for storing the drug was found. In the absence of
Drug Inspector finding the necessary equipment for storing
the tablets and when none of the tablets were found in the
premises, it cannot be said that petitioner is responsible for
the brittle nature of the tablet and there being no proper
binding formulation. It is specifically mentioned in the
Complaint that A1-manufacturere had after the visit of the
drug inspector rectified the binding character of the tablet.
11 Under Section 19(3) of the Act, if a person other than
manufacturer proves that the drug was properly stored and
acquired from the licensed manufacturer, he cannot be made
liable. The manufacturer is responsible for the Product. It is
not the case that this petitioner had knowledge about the
brittle nature of the tablet.
12. Further, it is not the case that A-2 was not licensed
manufacturer or this petitioner did not have the equipment to
store the drugs. Since the inspection report itself speaks
about the equipment available to store the tablets and no
tablets were found in the premises of A-4. The proceedings
against this petitioner who is a distributor of the drug cannot
be permitted to continue for the aforementioned reasons.
13. As a result, the petitioner succeeds and the proceedings
against this petitioner in C.C.No.282 of 2017, on the file of
First Additional District and Sessions Court, Nizamabad, are
hereby quashed.
14. Accordingly, the Criminal Petition is allowed.
Miscellaneous applications pending, if any, shall stand closed.
_________________
K.SURENDER, J
Date: 22.11.2023
dv
