STATE Vs. DHIRENDRA BHANULAL SANGHAVI

JUDGEMENT

(1.) THIS is a revision application under section 397(1) of the Criminal Procedure Code against the order of discharge dated 19.7.1990 passed by the learned Metropolitan Magistrate, 6th Court, Mazgaon, Bombay, in Case No.314/S/88. The State has challenged the order of discharge against Respondents Nos. 1, 2 and 3. Respondent No.3 M/s.Sanghavi Pharmaceuticals is a partnership firm of which the Respondents Nos. 1 and 2 are partners. For the purpose of the present revision a brief resume of fact is necessary and the same is as under :

(2.) THE Drug Inspector Mr.Deshpande visited the store of the District Health Officer, Zilla Parishad, Yevatmal on 5.3.1988. THE Store Assistant was present and after the Inspector disclosed his identity, he took samples of the drug "Benevit Capsules" manufactured under batch No.455 by the 3rd Respondent. THE samples were taken after following the procedure prescribed according to the Rules and one of the sample was sent to the Chemical Analyst. THE sample was found not to be of standard quality and hence a complaint came to be lodged for offence under section 18(a) and 18(c) of the Drugs and Cosmetics Act, 1940. THE learned Magistrate recorded the evidence before framing of the charge and after going through the evidence adduced before him, he came to the conclusion that no prima-facie case was made out and the evidence of the prosecution even if unrebutted would not warrant a conviction and therefore, passed the impugned order of discharge.

(3.) NOW admittedly samples were drawn by the Drug Inspector from the store of the District Health Officer Yavatmal, on 15.3.1988 and the said sample was got analysed and found to be not of standard quality. When the evidence of the Drug Inspector shows that the sample of the same batch of drug taken from the manufacturer was found to be of standard quality, then if the sample collected from the store of the District Health Officer, Yavatmal, of the same batch is found to not of standard quality, then for that the manufacturer cannot be blamed as the deterioration in quality may have occurred due to improper storage. It is also admitted that the said drug is required to be kept at a temperature below 25 degree Celsius, whereas the temperature at Yevatmal, especially in summer season is far above the said temperature i.e. up to 40 degree celsius. Considering the fact that the sample was taken in the month of March, the possibility that the deterioration in quality was due to the high temperature is also not ruled out. In any case, it was the duty of the prosecution to have brought on record and also to have alleged in the complaint that the conditions of storing the said drug as required by the Act and the Rules were found to be perfect in the store of the District Health Officer and in the absence of any such evidence and further admission that the storekeeper attached to the District Health Officer was not qualified to look after the conditions of the drug store, I find that the learned Magistrate was justified in passing the impugned order of discharge. It cannot be said that the learned Magistrate wrongly exercised the jurisdiction vested in him by law in passing the impugned order. The Revision must therefore fail and the same is dismissed. Rule is dismissed.