Summary
A Drugs Inspector found a small quantity of medicines in the consulting premises of a dermatologist heading the department at a Government medical college and, after a sanction obtained nearly two years later, prosecuted her under Section 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 for stocking drugs for sale without a licence; the Madras High Court declined to quash the complaint. The Supreme Court quashed the proceedings: Rule 123 read with Schedule K exempts drugs supplied by a registered medical practitioner to her patients, no sale across the counter was alleged, mere possession is not an offence, the sale bills did not relate to the seized drugs, the unexplained delay in sanction was a crucial factor, and the sanction showed no application of mind.
Issues
- Whether a registered medical practitioner found with a small quantity of medicines in her consulting premises can be prosecuted under Section 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 for stocking drugs for sale without a licence, having regard to the exemption in Rule 123 read with Schedule K of the Drugs and Cosmetics Rules, 1945.
Provisions considered
- Section 18(c) read with Section 27(b)(ii), Drugs and Cosmetics Act, 1940The prohibition is on manufacture, sale, stocking or exhibition of drugs for sale without a licence; following Mohd. Shabir, possession simpliciter is not punishable and the prosecution must affirmatively prove stocking for sale, which a small quantity of medicines in a doctor's consulting room does not establish. (¶¶ 6, 7, 9, 15)
- Rule 123 read with Schedule K, Entry 5, Drugs and Cosmetics Rules, 1945Drugs supplied by a registered medical practitioner to his own patients are exempted from Chapter IV of the Act, which includes Sections 18 and 27; the practitioner was entitled to this benefit and should not have been made to face trial. (¶¶ 7, 8, 9, 10, 16)
- Section 482, Code of Criminal Procedure, 1973The High Court, applying the rule that the court should not examine the validity of evidence at the quashing stage, failed to consider the statutory exemption and the admitted absence of any allegation of sale across the counter, which made the prosecution unwarranted. (¶¶ 5, 9, 10)
Held
- A senior dermatologist who is permitted to practise outside official duties and keeps a small quantity of medicines, a quantity easily found in a doctor's house or consulting room, cannot be said to have stocked them for sale; the sale bills relied upon did not even pertain to the seized medicines, she produced purchase invoices from pharmacies when called upon under Section 18A, and the laboratory found the drugs of standard quality. (¶¶ 7, 9, 11, 12)
- The inspection was in March 2016 and sanction was granted only in January 2018 without explanation; following Hasmukhlal D. Vohra, unexplained inordinate delay is a crucial factor in quashing, and following Mansukhlal Vithaldas Chauhan a sanction must reflect independent application of mind, whereas this sanction referred to no documents or submissions and ignored whether a practising doctor could be prosecuted at all in view of Schedule K. (¶¶ 13, 14, 16)
Result
Appeal allowed; order of the Madras High Court dated 21.06.2022 set aside and the criminal proceedings in Criminal Case No. 7315 of 2018 before the X Metropolitan Magistrate, Egmore, Chennai quashed.