Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE8H DAY OF JANUARY201418TH POUSHA, 1935 Crl.MC.No. 3987 of 2012 ------------------------------------ AGAINST THE ORDER
IN CC432011 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYOLI --------------- PETITIONER(S)/ACCUSED : -------------------------------------- 1. P.MOHAMMED, PROPRIETOR, RELIEF CLINIC AND NURSING HOME, MEPPAYUR PANCHAYATH, NEAR MEPPAYUR BUS STAND, KOYILANDI TALUK, KOZHIKODE DISTRICT.
2. ASHIF, S/O. MOIDEEN, VENKANNAYULATHIL VEEDU, IRINGATH POST, KOZHIKODE DISTRICT. BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S)/STATE-COMPLAINANT AND ACCUSED23 AND4 ----------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. THE PHARMACY INSPECTOR, KERALA STATE PHARMACY COUNCIL, THIRUVANANTHAPURAM-35. R1 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH R2 BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON0801-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PJ Crl.MC.No. 3987 of 2012 ------------------------------------ APPENDIX PETITIONER(S) EXHIBITS ANNEXURE A1 : COPY OF THE COMPLAINT IN CC NO.43/2011 ON THE FILES OF THE JUDICICAL FIRST CLASS MAGISTRATE COURT, PAYYOLI, KOZHIKODE. ANNEXURE A2 : COPY OF THE CLARIFICATION ISSUED BY THE DRUGS CONTROLLER, THIRUVANANTHAPURAM, DTD.4.8.2010. RESPONDENTS' EXHIBITS NIL. / TRUE COPY / P.S. TO JUDGE PJ A.HARIPRASAD, J.
------------------------------------------------ Crl.M.C.No.3987 of 2012 ------------------------------------------------ Dated this the 8th day of January, 2014. ORDER
Petitioners are the accused 2 and 3 in C.C No.43/2011 on the file of the Judicial First Class Magistrate Court, Payyoli registered under Section 42 of the Pharmacy Act, 1948. The case was registered on the basis of a private complaint filed by the Pharmacy Inspector with the following averments : On 09-11-2010 at about 10.30AM, the complainant, as part of his routine inspection, went to the clinic and the nursing home, owned and run by the first petitioner at Meppayyur. It is averred in the complaint that there is a separate room for pharmacy, where drugs were stored and exhibited for sale through counters. Complainant found the third accused engaged in dispensing medicines on prescriptions and receiving cash from public by issuing cash bills. It is the contention in the complaint that the third accused disclosed his identity and admitted that he was not a registered pharmacist and there was no registered pharmacist in the pharmacy at the time of inspection. Complainant would further Crl.M.C.No.3987 of 2012 2 contend that 2nd and 3rd accused refused to hand over cash bill copies on demand made by him. After preparing a mahazar, the complainant lodged the complaint.
2. Heard the learned counsel for the petitioner and the learned counsel for the second respondent.
3. Learned counsel for the petitioner would submit that the penal provision, namely Section 42 of the Pharmacy Act, 1948 is not attracted in this case. For clarity, Section 42 is extracted hereunder, which reads as follows :- " 42. Dispensing by unregistered persons.- (1) On or after such date as the State Government may by notification in the Official Gazette appoint in this behalf, no person other than a registered pharmacist shall compound, prepare, mix, or dispense any medicine on the prescription of a medical practitioner. Provided that this sub-section shall not apply to the dispensing by a medical practitioner of medicine for his own patients, or with the general or special sanction of the Crl.M.C.No.3987 of 2012 3 State Government, for the patients of another medical practitioner. Provided further that where no such date is appointed by the Government of a State this sub-section shall take effect in that State on the expiry of a period of eighty years from the commencement of the pharmacy (Amendment) Act, 1976. (2) Whoever contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months, or with fine not exceeding one thousand rupees or with both. (3) Cognizance of an offence punishable under this section shall not be taken except upon complaint made by order of the State Government or any officer authorised in this behalf by the State Government or by order of the Executive Committee of the State Council." 4. In the complaint itself, the first petitioner (second accused) has been described as a doctor. On this basis, it was argued by the learned counsel for the petitioner that proviso to Section 42 of Crl.M.C.No.3987 of 2012 4 the Act would exonerate the first petitioner from any sort of criminal liability. It is the assertion made by the learned counsel for the petitioners that the dispensary is only run for the patients coming to that hospital. It is also contended that even if the entire allegations in the complaint are accepted, the criminal liability, at the most, can be mulcted only on the second petitioner and the first petitioner cannot be said to have committed any offence. On behalf of the petitioners, it was argued that sub Section 2 of Section 42 of the Act mulcts criminal liability only on the person, who contravened the provisions of sub Section 1 of Section 42 of the Act. In other words, it is contended that the first petitioner cannot be prosecuted vicariously for the alleged act of the second petitioner.
5. Learned counsel for the second respondent would contend that the averments in the complaint would show that both petitioners are guilty of the alleged offence because both of them contravened the provisions of Section 42 of the Act. The submission made on behalf of the petitioners that the inspection was in a pharmacy exclusively run for the hospital owned by the first Crl.M.C.No.3987 of 2012 5 petitioner is a fact which will have to be established at the trial. The non production of cash bills on demand by the complainant is the foundation for the complaint. The petitioners also can establish the defence contention that they were dispensing medicines only to the patients coming to the hospital owned by the first petitioner at the trial. These are vexed questions of facts which cannot be resolved in a proceeding under Section 482 Cr.P.C.
6. Learned counsel for the petitioners submitted on the basis of Rule 123 of the Drugs and Cosmetics Rule, 1945 (Schedule K item No.5) that drug licenses are not required for drugs supplied by Registered Medical Practitioners to his own patients. Exemption clause mentioned therein is extended to clinics/hospitals owned and maintained by single medical practitioners. I am of the view that, all these facts can be established by the petitioners before the trial court at the time of trial. In the event the petitioners applying for an exemption from personal appearance, learned Magistrate shall grant personal exemption and decide the matter on merit. Therefore, I am of the view that the jurisdiction under Section 482 Cr.P.C cannot be Crl.M.C.No.3987 of 2012 6 invoked in this case as resolution of facts is not warranted. However, the petitioners are free to raise all legally possible contentions before the learned Magistrate and the learned Magistrate shall consider them on merit. Therefore, the Crl.M.C is disposed of. All pending interlocutory applications will stand dismissed. Sd/- A.HARIPRASAD, JUDGE. //True Copy// P.A to Judge amk