HARI SHANKAR PRASAD, J. - (1.) THIS application under Sec. 482 of the Code of Criminal Procedure has been filed against the order dated 3.12.2002 passed in Complaint Case No. 670/2002, T.R No. 821/2003, whereby cognizance for an offence under Secs. 27 -A read with Sec.17 -A of the Drugs and Cosmetics Act has been taken against the petitioners.
(2.) FACTS giving rise to the filing of this application are that opposite party No. 2 -Gopal Krishna Kedia (hereinafter referred to as "the complainant"), filed a complaint case against the petitioners being Complaint Case No. 670/2002 corresponding to T.R. No. 821/2003 stating therein that he purchased two ampules of injection syntocinon Batch No. 07025 -G from the Rahul Medical, Giridih and handed over it to the nurse of the Nursing Home. The nurse, while administering the injection upon the patient namely, Smt. Chanchal Agarwal, found some foreign element in the ampule and informed about the same to the complainant. The nurse handed over the sample to the complainant and he later on sent notice to the company and the company in turn informed the complainant that the representatives are begin sent to look into the matter but ultimately when they did not turn up reminders were sent and he was informed over phone that the matter is being enquired into and when nothing was done then complaint petition was filed (Annexure 1). Two witnesses were examined in enquiry under Section 202, Cr PC and on the basis of materials available on record, the learned Magistrate took cognizance in the case. The contention of the learned counsel for the petitioners is that the person, who has filed the complaint petition, is not an aggrieved person and, therefore, he cannot file any complaint petition. Another point has been taken is that petitioners are nowhere related to the offence in any way and they are not responsible, as they did not look after day -to -day work of the company. The other point is that the proprietor, partner and owner of Rahul Medical has not been made an accused in this case, which is serious lapse on the part of the complainant and the nurse in question, who pointed that there is foreign element in the ampule, has not been examined in this case nor patient has been examined under Sec.202, Cr PC. Further there is no report of the Government analyst as provided under Sec.26 of the Act. Further Drugs in question are Schedule H drugs, which are sold only on the prescription of a registered Medical practitioner and in this case no such prescription has been produced. It was further pointed out that Sec.27 -A deals with cosmetics and not drugs because as per the Act, drugs and cosmetics are two separate items.
(3.) OPPOSITE party -complainant appeared and filed a counter -affidavit and from perusal of counter - affidavit it appears that it has been claimed that all the procedures have been followed for filing a proper complaint. The learned counsel for opposite party -complainant submitted that the opposite party -complainant is an aggrieved person in view of the fact that he happens to be mausa of the patient and there is none to look after the patient and he looks after the patient. He referred to Sec. 26 of the Act and submitted that as per Section 26 of the Act opposite party complainant is an aggrieved person and entitled to file an application. Sec.26 of the Drugs and Cosmetics Act is quoted herein below : - - "26. Purchaser of drug or cosmetic enabled to obtain test or analysis -Any person or any recognized consumer association, whether such person is a member of that association or not shall, on application in the prescribed manner and on payment of the prescribed fee, be entitled to submit for test or analysis to a Government analyst any drug or cosmetic purchased by him or it and to receive a report of such test or analysis signed by the Government analyst." ;