Smt. Shanti Rani Sinha Wife of Dr. Ram Chandra Singh and Sarbjeet Kumar Son of Sri Baldeo Singh Vs. the State of Bihar and the Inspector of Drugs Cum Licencing Authority (Drugs) - Court Judgment

Excerpt:
- orderabhijit sinha, j.1. the two petitioners herein have filed this application for quashing of the order dated 3.1.2005 passed in g.r. no. 271 of 2004 by the learned chief judicial magistrate, nawadah, whereby he has taken cognizance against the petitioners under section 18(a)(vi) of the drugs and cosmetics act, 1940 (hereinafter referred to as 'the act') punishable under section 27(d) of the said act for alleged contravention of several sub rules of rule 65 of the rules.2. the prosecution case, inter alia, is that on 15.9.2004 the retail business premises of m/s shanti medical hall was inspected by the drugs inspector, nawadah, in presence of petitioner no. 2 in course whereof the pharmacist was found absent and the refrigerator was found to be on. on demand sale invoices, purchase invoices were not produced and some physicians' samples and drugs with expired dates were also found kept in the shop. a show cause notice was also issued to the petitioner and after consideration of the show cause the licence of the shop was cancelled.3. it has been submitted on behalf of the petitioners that they had challenged the order of suspension of licence before the appellate authority as provided for under the act and that the appellate authority allowed the appeal with a warning and set aside the order cancelling the license in view of the relevant documents having been produced by the petitioners. the contention of the petitioners appears to have been accepted by the appellate authority who restored the license. it has also been submitted that at the time of inspection since the petitioner no. 1 was not present in the shop premises, sale invoices and purchase invoices could not be produced but when they were produced before the appellate authority, the same were accepted as valid and the appeal by the petitioners was allowed and the licence was restored.4. it was also contended that only one drug 'fortwin' was found with an expiry date of august, 2004. the same was kept in a separate cartoon with display 'not for sale'. it was, therefore, submitted that the recovery of expired medicines in the facts and the circumstances of the case should not be viewed very seriously. the learned counsel for the petitioners also submitted that there is no allegation against the petitioners of storing or selling sub-standard medicines or medicines the life whereof had expired or that the shop was charging higher prices.5. the learned counsel for the state, on the other hand, submitted that the decision of the appellate authority by which the appeal was allowed and the order of cancellation of license was suspended will not give any benefit to the petitioners and this ground by itself cannot be a ground for quashing of the criminal case which is completely distinct from a proceeding in respect of cancellation of license.6. it appears that the proceeding for cancellation of license was initiated by the licensing authority, who is responsible for enforcing the terms and conditions of the license, found in course of inspection of the shop premises that the petitioners had violated the provisions of the act and it was only thereafter that the present case had been filed. the license was cancelled by the licensing authority exercising powers under the act and the rules which also provides for an appeal before the appellate authority. therefore, once the authorities appointed under the act come to the conclusion that the grounds for cancellation of license are not good grounds and the explanation offered by the licensee is accepted by the appellate authority and the order cancelling the license is set aside then in these circumstances to allow the criminal proceeding to continue would definitely, in my opinion, amount to an abuse of the process of the court.7. in the given circumstances, a court exercising jurisdiction under section 482 cr.p.c. should not be instrumental in permitting the continuation of a situation where abuse of the process of the court is writ large on the face of it.8. accordingly, the impugned order of the learned chief judicial magistrate, nawadah, is hereby quashed and the application is allowed.

Judgment:
ORDER

Abhijit Sinha, J.

1. The two petitioners herein have filed this application for quashing of the order dated 3.1.2005 passed in G.R. No. 271 of 2004 by the learned Chief Judicial Magistrate, Nawadah, whereby he has taken cognizance against the petitioners under Section 18(a)(vi) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act') punishable under Section 27(d) of the said Act for alleged contravention of several sub rules of Rule 65 of the Rules.

2. The prosecution case, inter alia, is that on 15.9.2004 the retail business premises of M/s Shanti Medical Hall was inspected by the Drugs Inspector, Nawadah, in presence of petitioner No. 2 in course whereof the Pharmacist was found absent and the refrigerator was found to be on. On demand sale invoices, purchase invoices were not produced and some physicians' samples and drugs with expired dates were also found kept in the shop. A show cause notice was also issued to the petitioner and after consideration of the show cause the licence of the shop was cancelled.

3. It has been submitted on behalf of the petitioners that they had challenged the order of suspension of licence before the Appellate Authority as provided for under the Act and that the Appellate Authority allowed the appeal with a warning and set aside the order cancelling the license in view of the relevant documents having been produced by the petitioners. The contention of the petitioners appears to have been accepted by the Appellate Authority who restored the license. It has also been submitted that at the time of inspection since the petitioner No. 1 was not present in the shop premises, sale invoices and purchase invoices could not be produced but when they were produced before the Appellate Authority, the same were accepted as valid and the appeal by the petitioners was allowed and the licence was restored.

4. It was also contended that only one drug 'fortwin' was found with an expiry date of August, 2004. The same was kept in a separate cartoon with display 'not for sale'. It was, therefore, submitted that the recovery of expired medicines in the facts and the circumstances of the case should not be viewed very seriously. The learned Counsel for the petitioners also submitted that there is no allegation against the petitioners of storing or selling sub-standard medicines or medicines the life whereof had expired or that the shop was charging higher prices.

5. The learned Counsel for the State, on the other hand, submitted that the decision of the Appellate Authority by which the appeal was allowed and the order of cancellation of license was suspended will not give any benefit to the petitioners and this ground by itself cannot be a ground for quashing of the criminal case which is completely distinct from a proceeding in respect of cancellation of license.

6. It appears that the proceeding for cancellation of license was initiated by the Licensing Authority, who is responsible for enforcing the terms and conditions of the license, found in course of inspection of the shop premises that the petitioners had violated the provisions of the Act and it was only thereafter that the present case had been filed. The license was cancelled by the Licensing Authority exercising powers under the Act and the Rules which also provides for an appeal before the Appellate Authority. Therefore, once the Authorities appointed under the Act come to the conclusion that the grounds for cancellation of license are not good grounds and the explanation offered by the licensee is accepted by the Appellate Authority and the order cancelling the license is set aside then in these circumstances to allow the criminal proceeding to continue would definitely, in my opinion, amount to an abuse of the process of the court.

7. In the given circumstances, a court exercising jurisdiction under Section 482 Cr.P.C. should not be instrumental in permitting the continuation of a situation where abuse of the process of the court is writ large on the face of it.

8. Accordingly, the impugned order of the learned Chief Judicial Magistrate, Nawadah, is hereby quashed and the application is allowed.