The 1st accused in C.C. No.135 of 2005 on the file of the I Additional Chief Metropolitan Magistrate (III Metropolitan Magistrate), Vijayawada sought for quashing of the proceedings against him in this criminal petition.
The petitioner and another were prosecuted for the alleged contraventions of different specified provisions of the Drugs and Cosmetics Act, 1940 and the 1st accused/petitioner herein was accused of purchasing, stocking for sale and selling a spurious drug, of not having purchased the same from a duly licensed dealer or manufacturer, and of not furnishing the purchase and sales record for the said drug.
However, the complaint itself specified that M/s. Meghana Medical Distributors, of which the petitioner is the sole Proprietor, holds a valid drug licence for stocking and selling of drugs wholesale. It was also further specified that even during the inspection, the alleged spurious drug i.e. DEWAX ear drops was observed to have been purchased from M/s. New Chandana Medical Distributors. It was also further specified that when required to disclose the source of supply along with attested copies of purchase and sale invoices, the petitioner informed in writing about purchase of drugs including the drug in question from the 2nd accused and furnished the attested copies of four purchase bills from M/s. New Chandana Medical Distributors. It was also stated that when required, the 2nd accused also confirmed the said sale to the 1st accused on behalf of M/s. New Chandana Medical Distributors, Proddutur. It was further stated that the analytical reports for the drug in question found that all the three samples sent were of standard quality.
The other allegations in the complaint concerning M/s. New Chandana Medical Distributors and the 2nd accused are not such as could have been answered by the petitioner/1st accused and the petitioner also can say nothing about the charges against the 2nd accused in this regard.
With this background, the petitioner claims that he dealt with a drug of standard quality under a valid licence and being not the manufacturer, he cannot be accused of any contravention on purchase of drugs from the agent of M/s. New Chandana Medical Distributors bona fide.
In this regard, Sri P. Anand Seshu, learned counsel for the petitioner relied on various precedents and rightly so, as applicable to the facts of the present case.
In J. Krishna Murthy v. State of A.P. (2007 (2) ALT (Cri) 277), it was pointed out that unless there is knowledge to the wholesalers who have supplied the drugs that the retailer was not renewed his licence to continue the business, he cannot be accused of having the element of guilty mind or mens rea to commit the offence. The converse also can be stated to be equally justified on the same logic and therefore, any deficiency in the legal entitlement of M/s. New Chandana Medical Distributors to sell the drug in question to the 1st accused through the 2nd accused, its agent, cannot fasten any mens rea to the 1st accused.
In Criminal Petition No.5920 of 1999 and batch decided on 31-10-2000 and in Criminal Petition No.2997 of 2001 decided on 27-08-2001, a learned Judge of this Court concluded that no knowledge can be legitimately attributed to the accused, who purchased the drugs for sale, about the samples not being in conformity with the contents purported to have constituted the drugs, when it is not a case of misbranded, adulterated or spurious drug and the accused, therefore, can legitimately take the defence that he did not know and could not, with reasonable diligence, have ascertained that the drug in question is a substandard drug. The learned Judge also observed that though the burden is on the accused to prove want of knowledge, no formal proof need be required in the circumstances of those cases and the burden varies from case to case. The complaints in those cases were found to be devoid of necessary ingredients, which constitute the relevant offence and the complaint in the present case also appears to stand on an identical footing.
In Criminal Petition No.3719 of 2004 decided on 23-08-2004, another learned Judge, following the above decision, held that the persons, who purchased the products supplied by them to retailers, from other persons under valid bills, which were verified by the Drug Inspector, cannot be made liable for prosecution due to want of knowledge of any contravention. So is the purchase by the 1st accused herein from the 2nd accused in the case.
In Perumalla Subba Rao v. State of A.P. (2009 (1) ALT (Crl.) 129 (DB) (A.P.)), a Division Bench of this Court dealt with three different situations arising under Section 18 of the Drugs and Cosmetics Act, 1940 and found in the case before it that the petitioner before the Court was not a manufacturer and was not an importer and also was holding a valid licence, due to which there could be no occasion to invoke Section 18 against him. The facts of the present case extracted above are more or less similar.
In the light of the principles laid down in the above cited precedents relied on by the petitioner, the criminal proceedings against the petitioner do not appear to be sustainable notwithstanding the opposition of the respondents represented by Sri H. Prahalad Reddy, learned Additional Public Prosecutor.
The criminal petition has to, therefore, succeed.
In the result, the further proceedings in C.C. No.135 of 2005 on the file of the I Additional Chief Metropolitan Magistrate (III Metropolitan Magistrate), Vijayawada against the petitioner are quashed. The criminal petition is allowed accordingly.
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