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No illegality in FIR against Sreedhareeyam Ayurveda Medicines : Kerala High Court






IN THE HIGH COURT OF KERALA AT ERNAKULAM 

P.D.RAJAN, J.

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Crl.M.C.No.660 of 2013

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Dated this the 10th March, 2014

AGAINST THE COMPLAINT IN CC.NO.908/2012 of J.M.F.C.-I, KOZHIKODE, DATED 11.09.2012

PETITIONERS/ACCUSED:- 

1. SREEDHAREEYAM AYURVEDA MEDICINES PRIVATE LIMITED K.G.P V/485F, V/485G, KIZHAKOMBU P.O KOOTHATTUKULAM, ERNAKULAM REPRESENTED BY ITS MANAGING DIRECTOR SRI.HARI N.NAMBOOTHIRI. 

2. HARI N.NAMBOOTHIRI, MANAGIND DIRECTOR M/S. SREEDHAREEYAM AYURVEDA MEDICINES PRIVATE LIMITED, K.G.P V/485F, V/485G, KIZHAKOMBU P.O, KOOTHATTUKULAM ERNAKULAM. 

BY ADV. SRI.P.DEEPAK

RESPONDENT/COMPLAINANT:- 

STATE OF KERALA REPRESENTED BY THE DRUGS INSPECTOR OFFICE OF THE ASSISTANT DRUGS CONTROLLER CIVIL STATION, KOZHIKODE673001. 

BY ADV. DIRECTOR GENERAL OF PROSECUTION SRI.ASIF ALI.

JUDGMENT

This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure-A complaint filed before the Judicial First Class Magistrate Court-I, Kozhikode filed under Section 10 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 by invoking inherent jurisdiction. The allegation that the first petitioner is a private limited company engaged in the manufacture of ayurvedic proprietary medicines and the second petitioner is the Managing Director, who manufactured 'Sunetra Senior Eye Drops' as per the licence conditions issued by the Drugs Controller, Ayurveda (ISM) as per the provisions of the Drugs and Cosmetics Act, 1940. On 12.9.2011, the Drugs Inspector, Office of the Assistant Drugs Controller, Civil Station, Kozhikode visited the premises of M/s.Lifa Marketing, Big Bazar, Kozhikode who is the authorised retailer of the first petitioner and conducted a search. At that time he noticed a statement contained in the label of the drug and display poster, which mislead the general public and encourage them to self medication and treatment. The Drugs Inspector seized the entire stock of the drugs as per Annexure-C mahazar and thereafter filed Annexure-A before the Judicial First Class Magistrate Court-I, Kozhikode. Hence, petitioners approached this Court with the above petition on the ground that there was violation of mandatory provisions of the Rules, if prosecution is continued it amounts mere abuse of process of court.

2. The learned counsel for the petitioners contended that Annexure-A did not disclose any offence as alleged, without following the procedure mentioned under Rule 3 of the Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955, the Drugs Inspector cannot proceed further. Section 8 does not confer any power on the Drugs Inspector to act independently violating Rule 3. 

3. The learned Director General of Prosecution appearing for the respondent strongly opposed the above contention and resisted that there is no violation of Rule 3. Annexure-A was preferred under Section 3(d) of the Act. While invoking Sec.3(d) of the Act, Rule 3 is not applicable. If a prosecution is launched under Sec.4 then only the question of violation of Sec.3 will come into operation. A prima facie case is made out against the petitioners, there is no reason to interfere in this case.

4. According to Section 3 and 4 of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 says as follows:

"3. Prohibition of Advertisement of Certain Drugs for Treatment of Certain Diseases and Disorders:- Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for - 

a) the procurement of miscarriage in women or prevention of conception in women; or 

b) the maintenance or improvement of the capacity of human beings for sexual pleasure; or 

c) the correction of menstrual disorder in women; or 

d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule, or any other disease, disorder or condition (by whatsoever name called) which may be specified in the rules made under this Act; 

Provided that no such rule shall be made except,- 

(i) in respect of any disease, disorder or condition which requires timely treatment in consultation with a registered medical practitioner or for which there are normally no accepted remedies, and 

(ii) after consultation with the Drugs Technical Advisory Board constituted under the Drugs and Cosmetics Act, 1940 (23 of 1940) and, if the Central Government considers necessary, with such other persons having special knowledge or practical experience in respect of Ayurvedic or Unani systems of medicines as that Government deems fit.

4. Prohibition of Misleading Advertisements Relating to Drugs,- Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement relating to a drug if the advertisement contains any matter which -

a) directly or indirectly gives a false impression regarding the true character of the drug; or 

b) makes a false claim for the drug; or 

c) is otherwise false or misleading in any material particular." 

5. The main object of the Act is to prohibit advertisement of drugs and its remedies. So, when such provisions are violated by a manufacturer, the authorised officer mentioned under the act can proceed against violators. Section 8 of the Act give power to empowered officers for entry and search by an authorised officer within the local limit for which he is appointed. According to Sec.8, subject to the above is made on this behalf any Gazetted Officer authorised by the State Government within the local limit for which he is appointed has power to enter and search if he has any reason to believe that an offence under the Act has been committed he can enter such a premise and subject to the power given to him seize any advertisement which he has reason to believe contravenes any of the provisions of the Act. He has also given power to verify and examine any record, register, document or any other material object found in any place that he intends for a search under Sec.8(a). When he enters such a premise he apply the provisions of Criminal Procedure Code to search and seizure. 

6. A close reading of Sec.4 would show that no person shall take any part in the publication of any advertisement relating to a drug if the advertisement contains any matter which directly or indirectly gives a false impression regarding the true character of the drug or make a false claim for the drug or otherwise false or misleading in any material particular, he has to follow the procedures under Rule 3 of the Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955. Rule 3 says that any person authorised under the Act if satisfied that an advertisement relating to a drug contravenes the provisions of Sec.4 has been committed he shall by order to require the manufacturer, packer, distributor or seller of the drug to furnish within the time specified in the order or such further time allowed in this behalf to give information regarding the composition of the drug or the ingredients thereof or any other information in regard to that drug as he deems necessary for holding the scrutiny of the advertisement. Where any such order is made it shall be the duty of the manufacturer, packer, distributor or seller of the drug to which the advertisement relates to comply with such order for the purposes of Sec.7 be deemed to be a contravention of the provisions of Sec.4 also. Provided that no publisher or advertising agency of any medium for the dissemination of any advertisement relating to a drug shall be deemed to have made any contravention merely by reason of the dissemination by him or if any such advertisement, unless such publisher or advertising agency has failed to comply with any discretion made by the authorised person in this behalf. Therefore, the manufacturer, packer, distributor, seller or advertising agency liable for the violation of Sec.4.

7. In this context I have verified the records. The allegation made by the Drugs Inspector was that he got information that the first petitioner made certain publication with regard to certain drugs. In Annexure-A he preferred a complaint under Sec.3(d) when defacto complainant filing complaint under Sec.3(d), I am of the opinion that Rule 3 is not applicable. As per the powers given by the statute, the Drugs Inspector proceeded to conduct a search in the premises and seized certain drugs and advertisement documents for that he launched a complaint before the Judicial First Class Magistrate Court-I, Kozhikode. I think there is no illegality in the above procedure though Annexure- A to C show prima facie case against the petitioners. If that be the position invoking inherent power under Section 482 Cr.PC is not warranted in this case.

8. The Apex Court in State of Haryana v. Bhajanlal (1992 SCC (Crl) 426) pointed out that:

"(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. 

(2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). 

(3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. 

(4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). 

(5) Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party. 

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accuse with a view to spite him due to private and personal vengeance."

There is no merit in this petition and it is dismissed.

Sd/- P.D.RAJAN, (Judge) 
Kvs/- -// true copy //-
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