The Jammu and Kashmir High Court on Saturday dismissed pleas seeking quashing of trial court proceedings against pharmaceutical companies whose drug samples were found as "substandard" after analysis.
A bench of Justice Ali Muhammad Magrey, while dismissing the petitions by 29 aggrieved persons, underscored that the Drugs and Cosmetics Act wasn't violated when drug inspectors in Kashmir initiated action against the accused.
Dismissing the petitions for "lacking legal credibility", the court asked the designate courts to proceed ahead in the matter in terms of the law applicable.
In the judgment announced on Saturday, the court directed its Registrar Judicial to communicate the fresh order to all subordinate courts, especially the Designate Courts whose orders were under challenge in the petitions. It also asked the Registry to send a copy of the judgment to Commissioner/Secretary, Health and Medical Education department.
In their pleas, the accused had raised that being Managing Directors, Directors, Managers, Secretaries or partners of pharmaceutical companies accused of dealing in sub-standard drugs, they cannot be acted against in keeping with the Act.
The court, however, observed that the provisions of Act would amply demonstrate 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 complainants."
"The plain reading of the provisions would reveal that any person acting on behalf of the Company, dealing with its daily affairs, is liable for the actions of the Company," the court said. "If the allegation against the company is that it has indulged in manufacturing, distributing, supplying or selling a sub-standard drug, the representative of the company vested with a responsible position like Managing Director, Director, Manager or Secretary, cannot escape liability of such an action."
Referring to the petitioners who were arrayed as accused for having indulged in sale of such sub-standard drugs in the capacity of a Distributor or a Seller, the Court said 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," Justice Magrey observed.
The court observed that the accused petitioners are sought to be prosecuted by the complainants for the alleged manufacturing, distribution or sale of different drugs of different companies which were found to be sub-standard on analysis.
The drugs in question, the court said, were sold on the date of its lifting by the drug inspectors concerned at different places of Kashmir region.
"The perusal of the complaints and other allied material would reveal that the samples, after collection, were sent to analysis in due regard of the applicable provisions and the accused petitioners were informed of the drugs being sub-standard," the Court said.
Observing that the perusal of the records indicates that some of the drugs even on re-testing were confirmed to be sub-standard, the court said it belies the claim of the accused that they were not provided with an opportunity to get the drugs re-analyzed in terms of Section 25 (3) of the Act.