SUPREME COURT HOLDS THAT MERE POSSESSION OF COSMETIC DRUGS IN SMALL QUANTITIES CANNOT WARRANT PROSECUTION
A Two Judge Bench of the Supreme Court comprising of Justice Sudhanshu Dhulia and Justice Krishna Murari recently passed a Judgment dated 15-03-2023 in the matter of S. Athilakshmi vs The State Represented by The Drugs Inspector, Special Leave Petition (Crl) No. 9978 of 2022 quashing the criminal proceedings in Criminal Case No. 7315 of 2018 before the X Metropolitan Magistrate, Egmore, Chennai.
- In this case, the Appellant, one Ms S. Athilakshmi, is a registered medical practitioner, working as an Associate Professor and as the Head of Dermatology Department, in the Government Omandurar Medical College, Chennai. She is permitted to practice medicine under the law and in the past has worked as a Civil Surgeon in Royapettah Medical College.
- The Appellant has a clinic by the name ‘Skin and Bones Clinic’ at Red Hills Road (North), Villivakkam, Chennai and is practicing medicine in her individual capacity.
- On 16.03.2016, during an inspection conducted by the Drug Inspector (Respondent), Villivakkam Range at the above premises, 18 cosmetic drugs consisting of ointments and lotions along with few sale bills were found within the inner room of the Appellant’s premises.
- Although the Appellant submitted her explanation after being issued with a show cause notice on 05.07.2016, it was found unsatisfactory by the concerned Authorities.
- Hence, an application for obtaining sanction to prosecute the Appellant was sought by the Respondent from the Office of the Director of Drugs Control, Chennai on 22.09.2016. The said application was sanctioned on 23.01.2018.
- Consequently, a complaint was filed by the Respondent before the X Metropolitan Magistrate (Trial Court), Egmore, Chennai namely in Criminal Case No. 7315 of 2018. The Appellant was prosecuted under Section 18(c) read with Section 27(b)(ii) of The Drugs and Cosmetics Act, 1940 (Act).
- Aggrieved by the proceedings before the Trail Court, the Appellant (Petitioner) filed a Petition under Section 482 of the Code of Criminal Proceeding, 1973 (CrPC) invoking the Inherent Powers of High Court before the High Court of Madras, to quash the said proceedings.
- The High Court of Madras, upon hearing both the parties dismissed the Criminal Petition dated 21.06.2022 on the ground that the Petitioner has stocked and sold the seized drugs and cosmetics without a license.
- Aggrieved by the dismissal of the said Petition, the Appellant filed a Special Leave Petition (Crl) No. 9978 of 2022 against the Order of dismissal, before the Supreme Court of India.
Supreme Court Analysis:
1) The Apex Court upon seeing the charges against the Appellant found that the entire emphasis has been on ‘Sale’ of the Medicines or Drugs or Cosmetics under the Act.
But upon careful scrutiny of the sanction letter by the Office of the Director, Drugs Control, the Hon’ble Court exclaimed that the Appellant is a medical practitioner specializing in Dermatology and it was nowhere evident that she sold drugs or cosmetics over the counter. Instead, the Hon’ble Court gave the benefit of doubt to the Appellant saying it was possible she was distributing them to her patients in case of emergencies. This in itself has her protected under the Act.
2) The Hon’ble Court also stated that the drugs in possession of the Appellant were of small quantities mainly falling under lotions and ointments, making them out of scope for being stocked and available for sale over the counter or as an open shop.
3) The Apex Court further pointed out that the sales bills did not match with the list of 18 drugs seized from the Appellant’s premises and produced as evidence by the Respondent.
4) It was further pointed out that the seized drugs sent for inspection to the Drugs Testing Laboratory, Tamil Nadu were of ‘standard quality’.
5) Moreover, the Apex Court while recalling the decision in Hasmukhlal D Vohra v State of Tamil Nadu, said that the criminal proceedings against the Petitioner were quashed due to a delay in proceedings. Applying the same to the present case, the Court held that the inordinate delay was not justified by the Authorities.
After considering the facts the Hon’ble Supreme Court allowed the Appeal of the Appellant and set aside the Order dated 21.06.2022 of the High Court of Madras, stating that there was non-application of mind as the High Court had failed to distinguish between a mere possession and stocking of drugs and cosmetics. The Apex Court also quashed the criminal proceedings against the Appellant in Criminal Case No. 7315 of 2018 before the Trial Court and held that the Appellant ought not to have been tried considering the likelihood of the Prosecution’s inability to prove the charges beyond all reasonable doubt.
The Indian Lawyer