- (1.) THE petitioners are the accused in C.C. No. 5367/89 pending on the file of the X Metropolitan Magistrate, Egmore, Madras. On a private complaint preferred by the respondent, who is the Drugs Inspector, Perambur Range, Madras, the petitioners are being prosecuted in the foretasted calender case, for having contravened the provisions of Section 18(1)(i) of the Drugs and Cosmetics Act, 1940, punishable under Section 27(d) of the same Act. A perusal of the complaint discloses, that the first petitioner is the drug manufacturing firm at Bombay, while petitioners 2 and 3 are the Directors of the said firm. THE fourth petitioner is the person in-charge of the conduct of the business of the first petitioner at Bombay, while the fifth petitioner is the person in charge of the Madras branch of the first petitioner, for the conduct of day-to-day business. On 18-11-1987, the then Drugs Inspector drew samples of Comoxyl dry syrup Amoxycillin, manufactured by the first petitioner, from the Medical Stores of the Southern Railway Headquarters Hospital, Aynavaram. On analysis, of the sample taken, by the Government Analyst (Drugs), Madras, it was noticed that the sample was not of standard quality, since the claim in the label, did not conform to the content of Amoxycillin, shown therein. A show cause notice was issued and a reply followed. In the reply, the petitioners are stated to have claimed, that the test adopted for analysis by the Laboratory was not the correct test, since a different analytical method as given in USP alone, should be used. It was also pointed out by the learned Counsel, that the first petitioner had enclosed along with the reply to the show cause notice, the laboratory report obtained at its instance, which would have the effect of nullifying the offences allegedly committed. After the receipt of reply to the show cause notice, this prosecution was initiated. Process was issued to the petitioners and thereafter they had chosen to invoke the inherent powers of this Court to have the pending prosecution quashed, as not maintainable and an abuse of process of Court.
(2.) MR. Arvind P. Datar, learned Counsel representing the petitioners contended, that the prescribed standard for the sample seized had not been stated in the complaint and if such prescription had not been made evident, this prosecution should not be allowed to survive. He then pointed out, that the complaint does not even make a reference to the reply made by the petitioners to the show cause notice, enclosing therein another report, which would enure in their favour. In any event, he submitted that all the petitioners are not liable to be proceeded against without a basic averment that one or other of them were in charge of and responsible for the conduct of the business of the company. I have heard Mr. B. Sriramulu, learned Public Prosecutor on these contentions. He pointed out, that the sample seized contained a label which showed that the drug contained 125 mg. of Amoxycillin - the standard prescribed by British Pharmacopoeia. He would then refer to item 1 of the Second Schedule and invite the Court to hold that the standard to be complied with was, the formula or list of ingredients displayed, in the prescribed manner, on the label. If the label intended to show compliance according to the standard prescribed by British Pharmacopoeia, the petitioners cannot express any grievance, since analysis had been done under the B.P. method, to establish the contra position.
(3.) I have carefully considered the rival contentions of the counsel of either side. The averment in the complaintprima facieshow, that the sample seized did not conform to the standard shown in the label, according to the report of the Analyst also indicates. Hence at this stage, subject to rebuttal evidence, it can be held, that a foundation has been laid by the prosecution, to proceed further with the trial. The defence of the petitioners, that the analysis under B.P. method was not the correct test, cannot be gone into in the exercise of inherent powers, since evidence will have to be brought on record by the defence and an opportunity furnished to the prosecution to challenge the genuineness of such evidence. Naturally, this exercise will have to be relegated for appreciation by the trial Magistrate, after evidence is brought on record, by both parties. I am unable to agree with the learned Counsel for the petitioners, that Section 18 of the Act read with Item 1 to the Second Schedule will not take in the contravention alleged, since all that is expected in the label 15 the list of ingredients and not the quantity thereof. To accept, this proposition would lead to disastrous results. I do not consider it necessary, that the complaint should state the prescribed standard, for a perusal of Section 18 read with Item 1 to the Second Schedule, apparently indicates such prescription. It would have been of course better, if the prosecution had stated in the complaint, about the receipt of the reply to the show cause notice, its reaction and then the need to institute this prosecution. Not having done so will not be sufficient to throw away the prosecution.;