sleeping partners of drug manufacturer firm cannot be added as accused

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

Criminal Petition No.3612 OF 2010

26-04-2010

B. Upender

The State of AP., rep. by its PP

Counsel for the Petitioner : Sri S.Bhooma Goud

Counsel for the 1st Respondent: Public Prosecutor

:ORDER:

This petition is filed by the 4th accused under Section 482 Cr.P.C. for quashing proceedings in C.C.No.512 of 2009 on the file of Judicial Magistrate of the First Class, Kamareddy, Nizamabad District relating to offence punishable under Sections 27 (d), 27( c ) and 22(3) of the Drugs and Cosmetics Act.

The Drugs Inspector, Kamareddy filed complaint before the lower court against A-1 to A-4. A-1 is M/s. Sri Mallikarjuna Medical and General Stores, Bibipet village, Domakonda Mandal. A-2 is Managing Partner of A-1. A-3 is Partner of A-1. A-4 is Partner and Registered Pharmacist of A-1. Subject drug in this case is Primolut-N sample. When the sample drug was sent to Government Analyst, Drugs Control laboratory, Hyderabad for analysis, it was found to be of standard quality. Thereupon, control sample of the drug was sent to the Manufacturer who gave report to the effect that the subject drug was spurious in nature as it was not manufactured by them. Therefore, the Drugs Inspector, Kamareddy launched prosecution against A-1 to A-4.

The only point urged by the petitioner's counsel in this petition is that A-4 being a Partner and not Managing Partner of A-1 shop and since A-4 was not even present in the shop when the Drugs Inspector inspected the shop and obtained samples, A-4 cannot be impleaded as one of the accused for prosecution against A-1 firm. He placed reliance on decision of this Court in Thumu Venkateswara Reddy v. State of Andhra Pradesh1 wherein it was held by this Court as follows:

"Having regard to the above reported decisions of the Supreme Court as well as this Court, the field is not left open to the prosecution to contend otherwise. Therefore, I find that the petitioners viz., A-3, A-4 and A-6 who are mere partners of A-1 firm and who have nothing to do with manufacturing process cannot be impleaded in the complaint for punishing them".

In the said reported decision, A-3, A-4 and A-6 were mere partners of A-1 firm and they had nothing to do with manufacturing process of the subject Drug therein. So this Court came to the conclusion that they cannot be impleaded in the complaint for punishing them. But, in the case on hand, A-4 is not only a partner but also a registered Pharmacist of A-1 shop. Without there being a registered pharmacist present in the shop, no medical business can be transacted in that shop. Therefore, A-4 being registered Pharmacist-cum-partner of A-1 firm, A-4 is a person involved in day-to-day medical business of A-1 firm. In that view of the matter, the above reported decision cannot be applied to facts of this case. In case, a partner is also a registered Pharmacist of the firm doing medical business, then such partner is invariably liable to be prosecuted along with the firm and Managing Partner and other partners who are responsible for day-to-day running of business therein.

Hence, the petition is dismissed.

?1 2010 (1) ALD (Crl.) 195 (AP)