Dr. Sethuammal vs State of Tamil Nadu

A. Packiaraj, J.—This revision has been filed by the accused N0.2 against the order of the Judicial Magistrate No. II, Coimbatore passed in Crl.M.P. No. 9574 of 1996 in C.C. No. 674 Of 1996, declining to discharge the accused.

Heard, Thiru Ramesh for Ram and Ram and Thiru. Jayakumar, Representing the Public Prosecutor for the State.

A complaint has been filed against three persons namely, M/s. Revijay Blood Bank Services and Hospitals, 2)Dr. P. Sethuammal and 3)Mr. V. Vivekanandan by the Drugs Inspector, Coimbatore I Range, Coimbatore-18 for an offence u/s 18(c) of the Drugs and Cosmetics Act 1940 read with Condition of licence 3 inform 28(c) read with schedule ''F'' read with Part XII ? of Drugs and Cosmetics Rules 1945, punishable u/s 27(b)9(ii) of Drugs and Cosmetics Act 1940.

The averments in the complaint in brief are as follows: The Drugs Inspector, inspected the premises of A-1 company on 20.6.1996. At the time of inspection, A-2, Dr. P. Seethuammal (the Petitioner herein) a partner of the firm was present. On requisition by the Drugs Inspector, the licence and other records were produced by A-2 to the complainant/Drugs Inspector. Admittedly the licence was for 19.4.1995 to 31.12.1996. But one of the conditions stipulated in the licence was to the effect that in the event of any change in the constitution of the firm operating under licence, the same should be communicated to the Licencing Authority within three months from thereafter and that the licence is valid only to a period of three months from the change of such a constitution. During the enquiry conducted by the Drugs Inspector, he came to know that one of the partners by name Thiru. C. Krishnan had expired on 28.8.1995. According to the Drugs Inspector, this effected a change in the constitution as contemplated under the Indian Partnership Act and hence the said licence was valid only for a period of three months from then onwards, i.e. to say till 28.11.1985. (But for the death which is a change in the Constitution, the licence is valid till 31.12.1996). The further averment in the complaint is that they have failed to apply for the renewal of licence in the stipulated time and operated the blood bank without a license and thereby they are said to have contravened Section 18C of the Drugs and Cosmetics Act 1940. This in short is the complaint.

On receipt of the summons and complaint from the Court of Judicial Magistrate No. II, Coimbatore and on their appearance, the Petitioner herein filed a petition for discharge u/s 245(2) Code of Criminal Procedure before the learned Magistrate. One of the main grounds raised in the said petition is that the Petitioner had filed a writ petition (W.P. No. 18765 of

1996), in which his Lordship Mr. Justice Kana-garaj as he then was, was pleased to hold by his order dated 13.12.1996 that the accused/Petitioner have a valid licence till 31.12.1996 and directed the Prosecuting Agency to consider and dispose of the Petitioner''s application within two months.

The accused based their arguments on the finding given by his Lordship Mr. Justice Kanagaraj that the licence was valid till 31.12.1996 and hence when the Drug Inspector inspected the premises on 20.6.1996, it is deemed they had a valid licence and hence have not contravened the conditions of the licence.

A counter was filed on behalf of the complainant in the lower Court stating that the finding in the writ petition may not be very much of a binding nature, since the prayer was only for a direction to be given to the authorities concerned to dispose of the renewal application shortly. The learned Magistrate accepting the contentions of the complainant, dismissed the said application.

It is against this order, the Petitioner has now filed the revision. The Petitioner based his arguments mainly on two points. The first being that the accused has intimated about the death of the said Krishnan to the Respondent on 13.11.1995 itself. According to the conditions of the licence. Clause 3 reads as follows:

The licencee shall inform the Licensing Authority in writing in the event of any change in the constitution of the firm takes place, the current licence shall be deemed to be valid for a maximum period of three months from the date on which the change takes place, unless, in the meantime, a fresh license has been taken from the Licencing Authority in the name of the firm with the changed constitution.

Though in view of this clause, admitting for argument sake that there had been a change of Constitution on the death of one of the partners, the license is valid upto 28.11.1995. Admittedly, the Petitioner has intimated the same on 13.11.1995 itself. Further according to the counsel, Rule 122-F specifies that if the applicant applies for renewal of license after its expiry but within six months of such expiry, he shall continue to operate the same till the orders on his application are communicated to him. Hence in view of the above said condition No. 3 in the licence, the validity of the licence expires on 28.11.1995 and in view of the above said proviso namely Rule 122-F, if an application has been made after the expiry as such but within six months of such expiry, the Petitioner shall continue to operate the same till the orders on his application are communicated to him.

In the present case, the admitted fact is that an application has been made on 22.05.1996 which is within six months after the expiry of the licence. At the risk of repetition, I may state that the validity of the licence terminates as on 28.11.1995 while the renewal has been made on 22.05.1996, which is about six days within the prescribed limit for filing the application. In such circumstances, in view of Section 122-D which prescribes that the licence already granted or renewed, shall continue to be in operation till the orders on his application are communicated to him. In the present case, the Petitioner having made an application under for 27-C as contemplated under Rule 122-F as early as on 22.05.1996 have not received any communication and hence, had filed a writ petition before this Honourable Court praying for a direction that his renewal application shall be considered at an earliest date.

The question now that arises is whether the accused was deemed to have a valid license on the date of inspection by the Drugs Inspector. The deeming provision under 122-F makes it abundantly clear that an application shall be made within six months from the expiry of the licence and consequently, in the present case, in which I hold that such an application has been made within six months. The Petitioner is deemed to be in possession of a valid licence till he has received any communication. It would not be out of place for me to state that in the application the death of C. Krishnan has been mentioned and consequently the license that is prayed for may be termed as renewal or fresh licence, as the fees and other requisites are one and the same for both, besides the application is as contemplated under Form 27-C as seen from the copy filed along with this petition, which is not disputed.

In this connection, I am fortified with the decision of the judgment reported in T.C. Kandaswami Chettiar v. Emperor 1947 MWN Cri. 68. wherein it has been held as follows:

It is not unreasonable to suppose that when an application for licence is made and in the ordinary course it is granted the licence shall be deemed to be in operation from the date of the application. No doubt, in some enactments there is express provision for such a result.

I consider it necessary to incorporate the above said observation, since in the present enactment Rule 122-H makes it abundantly clear that there is an express provision for the licence to be in operation, pending disposal of the application being considered.

Further, it has also been admitted by the prosecution that subsequently a licence has been granted for the Petitioner to run the blood bank and as on date they are continuing the said institution. As such, I find that in view of the admitted facts, in the present case that the first accused firm of which the Petitioner is a partner had filed an application for renewal within the stipulated period contemplated under the said rules and not being responded immediately by the department by way of rejection or otherwise cannot be saddled with criminal liability.

The second contention raised by the counsel is that His Lordship Mr. Justice Kanagaraj as he then was has held that they are deemed to be in possession of a valid licence after 31.12.1996 and consequently, the present prosecutions not sustainable. I do not propose to give any finding on this issue, since the prayer in the writ petition was only to have a direction to the concerned authorities to dispose of the renewal application filed by the Petitioner. Under what circumstances, the learned Judge has come to pass such an order is not placed before me. Neither the affidavit or the counter filed in the W.P. has beer brought to my notice.

However on the first ground I consider that the prosecution is not maintainable in law and consequently, set aside the order passed by the learned Magistrate in Crl.M.P. No. 9648 and 9649 of 1999 in C.C. No. 694 of 1996 passed by the Judicial Magistrate No. II, Coimbatore and allow the revision. In view of the revision being allowed the Petitioner shall stand discharged from the above case. Though A-2 is the Petitioner before this Court a complaint has been filed against A- 1 who is M/s. Revijay Blood Bank Services and Hospitals and it is being represented by the Petitioner herein and against the third accused, one Vivekanandan was also a partner of the said firm. In view of the Petitioner being discharged who is the main accused in the proceeding, I consider that though the other accused have not preferred any application before this Court, the benefit shall also accrue to them. Consequently, I hold that the complaint in C.C. No. 694 of 1996 is not maintainable in law and all the accused in C.C. No. 694 of 1996 on the file of the Judicial Magistrate No. II Coimbatore stand discharged. With the observation the revision is allowed.