Modern Laboratories vs Drugs Inspector

S.S. Satheesachandran

Petitioners are the accused in a pending case numbered as C.C.No. 575 of 2005 on the file of the Judicial First Class Magistrate Court Sasthamkotta. They are being prosecuted for the offence punishable under S. 18(a)(i) of the Drugs and Cosmetics Act, for short, the ''Act'', punishable under S. 27(d) of that Act, on a complaint filed by the Drugs Inspector, Kollam. The 1st petitioner is a manufacturing company which is represented by its Director 2nd petitioner, who is separately proceeded as the second accused in the case. Though the procedure for the trial of the aforesaid offence as per the provisions of the Act warranted only a summary trial, the magistrate adopted the procedure for a warrant trial. Enquiry under S. 244 of the Code of Criminal Procedure, for short, the ''Code'' proceeded with examining the complainant Drugs Inspector. After evidence was recorded in that enquiry, the complainant moved an application (Annexure B) to implead the remaining Directors of the company as additional accused in the case. That application was allowed by the magistrate vide Annexure C order, by which, petitioners 3 to 5 were added as additional accused in the case. The above petition has been filed by the accused, all of them together, for quashing the complaint and proceedings therefrom, with an alternate prayer for quashing Annexure C order as well, invoking the inherent powers of this Court under S. 482 of the Code. I heard the learned counsel for the petitioners and also the learned Public prosecutor. Though the petitioners have serious challenges over the entertainability of the complaint and prosecution proceedings launched against them, the learned counsel appearing for them knowing the limitations over the exercise of inherent powers of this Court in considering and resolving disputed questions on facts involved in the case, submitted that challenge against Annexure C order, by which, the magistrate ordered inclusion of three Directors of the company as additional accused, that alone, is pressed into service in the present petition. Rest of the challenges raised in the petition may be allowed to be canvassed before the magistrate, is the further submission of the counsel. Adverting to S. 32-A of the Act, the learned counsel contended that impleadment of the directors of the company as additional accused where the manufacturing company is proceeded as the accused is per se conflicting with the aforesaid provision, and Annexure C order passed by the magistrate, on that solitary ground, cannot be sustained.

Annexure A complaint would disclose that the complainant took samples of the drug manufactured by the company from a Primary Health Centre on 23.11.2004, and that on analysis was found to be not of standard quality. That is the basis for launching the prosecution proceedings against the manufacturing company and one of its directors. When that be so, whether in such a case, other directors of the company, at a later stage, could be implicated as additional accused invoking S. 32-A of the Act, is the question that is emerging for consideration. S. 32-A of the Act reads thus:

[32-A, Power of Court to implead the manufacturer, etc.- Where at any time during the trial of any offence under this Chapter alleged to have been committed by any person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, the Court is satisfied, on the evidence adduced before it, that such manufacturer or agent is also concerned in that offence, then, the Court may, notwithstanding anything contained [in subsections (1), (2) and (3) of S. 319 of the Code of Criminal Procedure, 1973 (2 of 1974)), proceed against him as though a prosecution had been instituted against him u/s 32.]

What is the scope and object of the Section is the question that emerges for consideration in the present case. The learned Magistrate, it seems, has understood the Section as enabling the court to add additional accused even where the prosecution for the offence under the Act is proceeded against a manufacturer of a drug or cosmetic or his agent. That is not correct. The Section makes it abundantly clear that when any person other than the manufacturer of a drug or cosmetic or his agent is being prosecuted for any offence under Chapter IV of the Act, at any stage during the trial, if the magistrate is satisfied on the evidence adduced before him the addition of the manufacturer or agent of the drag or cosmetic, as the case may be, is essential, then, notwithstanding anything contained in S. 319 of the Code, he is empowered to pass an order for impleadment of that manufacturer or agent and proceed against him as if the prosecution had been instituted against such additional accused under S. 32 of the Act. So, essentially, invoking of the Section for impleading the manufacturer of a drug or cosmetic or his agent as an additional accused would arise for consideration only where the person already proceeded against for any offence under Chapter IV of the Act is a person who is not the manufacturer of a drug or cosmetic or his agent. The words appearing in the section "the person facing trial, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof have vital significance to in what cases during the trial of the case on satisfaction of the evidence let in the court can order impleadment of the manufacturer of the drug or cosmetic or its agent as additional accused to face trial with the accused already proceeded against in the case for an offence covered by the Act. In the present case, where the manufacturing company of the drug and also its director are proceeded for an offence under the Act, the Section does not enable the court to implead the other directors of the company as additional accused invoking the aid of S. 32-A of the Act. Annexure C order passed by the magistrate ordering impleadment of other directors of the 1st accused company, petitioners 3 to 5, as additional accused in the case cannot be sustained. Annexure C order is liable to be set aside, and I do so.

Whatever challenges available to petitioners 1 and 2 to resist the prosecution, as provided by law, can be canvassed by them before the magistrate. Reserving their right to do so, arid setting aside Annexure C order, the Crl.M.C. is disposed of.