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HC directs for legal proceedings against 29 drug companies

Excelsior Correspondent

Srinagar, Jan 28:  The State High Court today directed the trial courts to go ahead with the legal proceedings against 29 drug companies whose products were found sub-standard by testing laboratories.
The Court dismissed 29 petitions filed by various pharmaceutical companies challenging the cognizance taken by the subordinate courts against them for their involvement in supplying substandard drugs.
Drug Inspectors of various districts on market checking had collected samples of various drugs of different pharmaceutical companies for testing their standards and the collected drugs were found, on testing, not to be of standard quality.
The Department followed legal course and filed complaints before the trial courts in various districts against these 29 companies.
“For all what has been said hereinbefore, all these petitions are dismissed for lacking the legal credibility to warrant indulgence in the trial initiated against the petitioners. Interim directions wherever granted shall stand vacated. Designate Courts are directed to proceed ahead in the matter in terms of the law applicable”, Justice Ali Mohammad Magrey directed.
Registrar Judicial has also been directed to communicate the judgment to all the subordinate courts especially the Designate Courts whose orders were under challenge in all 29 petitions. Judgment has also been sent to Commissioner/Secretary Health and Medical Education under court direction for information.
The complaints filed in terms of Section 18 (a) (i), and 27 (d) of the Drugs and Cosmetics Act, 1940, for short Act, were entertained and process issued by the respective trial courts.
The companies challenged the process issued by the trial court on the assumption that the course adopted by the respondents’ and the Designate Courts is bad in law as the petitioners in these petitions challenge its legal sanctity.
The accused companies and their Managing Directors against whom samples of drugs were found substandard are Rajeev Mukul , Vivek Pharmachem Ltd , Nittin Singla, Navdeep Gupta, Rajesh Chopra, Sushil Suri, Vivek Pharmachemist,  Krishna Moorthy  Chanduru, Osper Formulations Pvt. Ltd, Nikvin Health Care Pvt. Ltd, Sarvear Pharmaceuticals U.A, Sarvear Pharmaceuticals, M/s Knox life Sciences, SGS Pharmaceuticals Pvt Ltd, Vivek Pharmachem, M/S Novlees Life Care, Vivek Arora, Lokesh Sharma and others including Managing Director Arion Health, Managing Director Arion Health, Symbiosis Pharmaceuticals, Vivek Pharmachems, Rajinder Singh, M/S Adeli Formulations, Nitin Life Insu, Neon Laboratory, Minial  Laboratories Pvt Ltd, Managing Director Srinagar zone and Harihar Nath Gandotra.
On notice issued by the Court, Drug Inspectors appeared and filed their reply alleging the cases are pending before the Designate Courts at the stage pre-trial evidence and the extent of the liability of the accused/ petitioners (Pharmaceutical Companies) has to be established by evidence during trial.
It has also been submitted in the reply that the petitioners/ accused manufactured and sold the adulterated drugs and have   full control over the day to day manufacturing of the drugs.
“The reports of the firms/ companies have been furnished the test reports and the samples; in most of the cases the company/ firm have not requested for furnishing of test report; getting the adulterated drugs manufactured through qualified and approved manufacturing and analytical chemist and selling them is an offence under section 18 of the Act”, Drug Inspectors submitted and added trial courts have taken cognizance and summoned the accused pharmaceutical companies for trial.
Court after perusal of the complaints filed against the companies for their involvement in supplying substandard drugs as also the documents placed on record said that it reveals the Designate Courts have, on proper application of mind and with reference to the material on record, prima facie established that the companies and or the distributors, sellers have committed the offence, therefore, taken cognizance and issued the process.
The State Counsel submitted that where a Company is alleged to have committed the offence, the person who was in-charge of and was responsible for the business of the Company at the time when the offence was committed shall be deemed to be guilty of the offence as per Section 34 of the Act.
He submitted that the Designate Courts have found that the allegations made in the complaint, made out a prima facie case and that the accused have prima facie committed the offence.
He further submitted that in all the complaints questioned in these petitions it is quite visible that the Companies have committed the offences alleged against them and requirements of under law have been complied with.
Court observed that the trial court record demonstrated that trial was in progress when all of a sudden the need was felt by the accused to file the petitions to avoid trial which came to standstill as the records of the cases were called by the High Court.
The provisions of Act supra would amply demonstrated that the defence raised by the petitioners to show that the process issued against them is an abuse of process of law is rendering no help to them but instead ‘lends credence’ to the case of the respondents/ complainants as the plain reading of the provisions would reveal that any person acting on behalf of the Company dealing with its day to day affair is liable for the actions of the Company, and if the allegation against the company is that it has indulged in manufacturing/ distributing/ supplying or selling of a sub-standard drug, the representative of the company vested with a responsible position like Managing director/ Director/ Manager/ Secretary etc., cannot escape liability of such action.
“Similarly, the other accused/ petitioners who have been arrayed as accused for having indulged in sale of such sub-standard drugs in the capacity of a distributor or a seller, for, they cannot be expected to be ignorant of the trade being undertaken through them by somebody else; therefore, I believe they equally share the criminal liability,” the Judge observed.
Justice Magrey has held that the accused are sought to be prosecuted by the complainants for the alleged manufacturing/ distribution/ sale of different drugs of different companies which were found to be sub-standard on analysis.
“The drugs in question were sold on the date of its lifting by the respective drug inspectors concerned at different places of Kashmir Region and perusal of the complaints and other allied material would reveal that the samples after its collection were sent to analysis in due regard of the applicable provisions and the accused/ petitioners were informed of the drugs being sub-standard”, Justice Magrey recorded.
“It further appears from the perusal of the record that some of the drugs even on retesting, conducted at the request of concerned quarter, were confirmed to be sub-standard, therefore, the plea that the petitioners/ accused were not provided with an opportunity to get the drug reanalyzed in terms of Section 25 (3) of the Act is belied and rejected accordingly”, the judgment read.
The other aspect of the matter, court said, is that the petitioners have not been held to be guilty and only a process is issued to them to defend themselves against the charges leveled against them in the complaints and the process issued was and had to be taken as an opportunity by the petitioners to prove to the contrary of what is being pleaded before the Designate Court by the medium of complaints in question.
The very provisions of the Act, Court added, make it clear that the provisions of the Act have been made use of to promote the law spirit and not abused or misused to cause miscarriage of justice. The offence alleged against the accused petitioners is very heinous in nature and involves a large public interest.
“The hands those deal with risking the peoples’ lives for their commercial gains cannot be strengthened to use the provisions of law to their advantage and feel encouraged to take shelter under the auspices of same law that seeks punishment for such elements”, Justice Magrey said.
Court said the stringent measures are required to be put in place to see and ensure that the object of the Act which prevents manufacturing, distribution, supply and sale of sub-standard, spurious, adulterated drugs so that the precious lives do not fall prey to nefarious designs of money hungry people who are out there to disturb the public order for their personal gains.

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