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Judgment
V.K. Mohanan, J.—The petitioner who is impleaded as 3rd accused in C.C. No. 1367 of 2008 preferred the above M.C. u/s 482 of Cr.P.C., challenging his impleadment u/s 32A of Drugs and Cosmetics Act, 1940 by invoking Section 319 of Cr.P.C. Heard the counsel for the petitioner and the respondents.
Originally, the complaint in C.C. No. 1367 of 2008 was preferred against two accused namely the firm, New Pharma and one K.R. Manoharan alleging offences u/s 18(a)(i) of the Act punishable u/s 27(d) of the above Act. As per the allegation, the first accused partnership firm constituted as per Deed of partnership dated 8.1.2004 and said firm is represented by the second accused being the Managing Partner of the first accused firm. According to the complaint, on 23.01.2007 the complainant inspected Sree Vinayaka Enterprises, Thrikkannamangal, Kottarakara and drew a sample of the drug namely Mefenamic Acid and Paracetamol Tablets (MEF-P) Batch No. 150; Mfg. Date: October 2006; Expiry Date: September 2008 Mfd. by: J.M. Remedies Mamoore Complex, Saproon, Solan (H.P.)-173211 and marketed by Neopharma, N. Paravur, Ernakulam district under the provisions of Section 23 of the Act. After purchasing the sample one portion of the same was sent to the Government Analyst, Drugs Testing Laboratory, Thiruvananthapuram by registered parcel in the manner prescribed by Section 23 of the Act and the certificate of analysis received by the complainant on 24.10.2007 and on examination of the report it was found that the content of Mefenamic Acid, one of the ingredients of the drug, was only 262.59 mg against the label claim of Mefenamic Acid IP 500 mg. and accordingly, the drug was declared as Not of Standard Quality by the Government Analyst.
It is the further case of the complainant that when the accused was requested to reveal the source from which the drug was acquired by them, they informed the complainant as per letter dated 17.11.2007 that the drug was manufactured by J.M. Remedies, Mamoore complex, Saproon, Solan, Himachal Pradesh and obtained the drug as per Invoice No. 076 dated 19.10.2006 [of J.M. Remedies, Mamoore complex, Saproon, Solan � 173211 (H.P.)]. After sending the copy of the analysis report, the manufacturer was requested to furnish certified copies of licences No. MNB/06/289 and MB/06/290, record of manufacturing of the drug and Name, Age and Full address of the persons responsible for manufacture and sale of the drug. But there was no proper response to the same. According to the complainant, inspection and enquiry conducted revealed that the accused by telephonic message with the manufacturer, got manufactured Mefenamic Acid and Paracetamol Tablets (MEF-P), Batch No. 150 and distributed in the State of Kerala as an agent of the manufacturer. It is thereafter the accused filed an application u/s 32A of Drugs and Cosmetics Act by invoking Section 319 of Cr.P.C. to implead the above mentioned manufacturer. That petition was allowed but however one Sandeep Sarma, Managing Partner impleaded as 3rd accused. According to me, the above order cannot be sustained and on reading of the amended cause title itself shows that the proper person to be impleaded u/s 32A is the manufacturing company but in the present case, the third accused so impleaded is one Sandeep Sarma, Managing Partner in his personal capacity. Thus no proceedings can be continued against the individual namely Sandeep Sarma unless the manufacturing company itself is impleaded in terms of Section 32A. Therefore, the proceedings and complaint against the 3rd accused on his personal capacity pending before the court of Judicial First Class Magistrate Court-I, Kottarakkara is quashed. It is made clear that the quashing of the proceedings against the said Sandeep Sarma do not stand in the way, represented by its proper official; impleading the manufacturer in terms of Section 32A of the Drugs and Cosmetics Act.
Crl.M.C is disposed of accordingly.