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TMI Blog2023 (3) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... s from being exploited inter alia, by unethical medical practitioners, and for this reason the punishment Under Section 27 can extend up to 5 years under the law, and has a minimum punishment of 3 years. Given the facts and circumstances of the case and considering that the Appellant is a registered medical practitioner, along with the fact that the quantity of medicines which have been seized is extremely small, a quantity which can be easily found in the house or a consultation room of a doctor, no offence is made out in the present case. In fact, an exception has been created under Schedule 'K' read with Rule 123 to the rules, the Appellant ought to have been given the benefit of these provisions and such a registered medical practitioner should not have been allowed to face a trial where in all likelihood the prosecution would have failed to prove its case beyond reasonable doubt. The possession of the drugs is not disputed in this case by either side. However, this Court in the case of MOHD. SHABIR VERSUS STATE OF MAHARASHTRA [ 1979 (1) TMI 234 - SUPREME COURT] while allowing an appeal in part and directing the release of an Appellant who had been prosecuted und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. A CN Gel 20 gms 1 No. 98/20gms 4. Tebir Gel 10 gms 9 Nos. 47.90/10gms 5. Soltop S.6% Lotion (30ml) 4 Nos. 125/30ml 6. Mycotin Cream 15 gms 3 Nos. 115/15gms 7. Mopry 2% Ointment 4 Nos. 75.60/5gms 8. Momtop S Ointment (10gms) 1 No. 145/10gms 9. ESM Cream (10gms) 4 Nos. 76/10gms 10. Nu Whitified Ointment (20gms) 7 Nos. 40/20gms 11. Momesone Cream (15gms) 3 Nos. 82/15gms 12. Sudif Cream (10gms) 4 Nos. 99/10gms 13. CAP Gel (15gms) 1 No. 156/15gms 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Leave Petition before this Court against the order of the Single Judge. 6. Under Section 18 of Drugs and Cosmetics Act 1940, a prohibition has been imposed as to the manufacture, sale etc. of certain drugs and cosmetics. Section 18 reads as follows: 18. Prohibition of manufacture and sale of certain drugs and cosmetics. -- From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf-- (a) ......................................... (b) [sell or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic] which has been imported or manufactured in contravention of any of the provisions of this Act or any Rule made thereunder; (c) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic], except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter: Provided that nothing in this Section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an M.D. (DVL) degree in this specialisation. It is not a case that she had opened a shop in her premises from where she was selling drugs and cosmetics across the counter! It is possible that she was distributing these drugs to her patients for emergency uses and thus she is protected by the Act itself. Schedule (K) which is a part of the Drugs and Cosmetics Rules, 1945 provides an exemption which we shall examine hereafter. 8. Under Section 33 of the Act, the Central Government can make Rules which have to be laid before the Parliament for its ratification Under Section 38 of the Act. These Rules have been framed which is known as Drugs and Cosmetics Rules, 1940. Rule 123 of the Rules exempts certain drugs from the provisions of Chapter IV of the Act (which includes both Section 18 and Section 27 referred above, which are penal provisions), under certain conditions Rule 123 reads as under: 123. The drugs specified in Schedule K shall be exempted from the provisions of Chapter IV of the Act and the Rules made thereunder to the extent and subject to the conditions specified in that Schedule. Entry No. 5 under Schedule (K) are the drugs which are supplied by a registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the name and address of the registered medical practitioner by whom it is supplied; b. if the medicine is for external application, it shall be labelled with the words [***] For external use only ― or, if it is for internal use with the dose; c. the name of the medicine or ingredients of the preparation and the quantities thereof, the dose prescribed, the name of the patient the date of supply and the name of the person who gave the prescription shall be entered at the time of supply in register to be maintained for the purpose; d. the entry in the register shall be given a number and that number shall be entered on the label of the container; e. the register and the prescription, if any, on which the medicines are issued shall be preserved for not less than two years from the date of the last entry in the register or the date of the prescription, as the case may be. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to prove its case beyond reasonable doubt. The learned single judge while dismissing the application Under Section 482 Code of Criminal Procedure of the Appellant has relied upon a decision of this Court: 9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power Under Section 482 Code of Criminal Procedure for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged ....... 13. A look at the complaint filed by the Appellant would show that the Appellant had incorporated the ingredients necessary for prosecuting the Respondents for the offences alleged. The question whether the Appellant will be able to prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extraordinary delay of more than four years between the initial site inspection, the show cause notice, and the complaint. In fact, the absence of such an explanation only prompts the Court to infer some sinister motive behind initiating the criminal proceedings. 26. While inordinate delay in itself may not be ground for quashing of a criminal complaint, in such cases, unexplained inordinate delay of such length must be taken into consideration as a very crucial factor as grounds for quashing a criminal complaint. 27. While this Court does not expect a full-blown investigation at the stage of a criminal complaint, however, in such cases where the Accused has been subjected to the anxiety of a potential initiation of criminal proceedings for such a length of time, it is only reasonable for the court to expect bare-minimum evidence from the Investigating Authorities. 14. The sanction for prosecution given in the present case appears, prima facie, to suffer from the vice of non-application of mind. There is no reference to any of the documents, evidence or the submissions submitted by either of the parties, no reasons assigned or even an explanation pertaining to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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