IMPORTANT POINT
Drugs and Cosmetics Act, 1940 does not require a portion of sample to be given to manufacturer when it is lifted from a retailer who disclosed name of wholesaler only. So a copy of Govt. Analyst s report is not sent to him. That does not make the prosecution of manufacturer violative of Article 21 of Constitution as such manufacturer has remedy to ask the Court to send its portion of sample for analysis by Central Govt. Durg. Lab. to challenge the report of Govt. Analyst and the Courts need not feel helpless in administering criminal justice on the ground of non-supply of sample portion to manufacturer at the time of lifting of sample and a copy of Analyst s report later due to legislative lacuna (if at all it is a lacuna).

Headnote:Drugs and Cosmetics Act, 1940-Sections 27(b), (c) and (d) r/w 23(a)(iii)-Sample of drug "Ashoka Liquid Extract" manufactured by appellant, lifted from a retailer-Divided in 4 parts-One part given to retailer, 2nd sent to Govt. Analyst -Third to named person wholesaler and 4th to Court-Govt. Analyst found it "mis-branded, adulterated and spurious drug"-Prosecution of retailer, wholesaler and appellant manufacturer-Appellant manufacturer pleading deprivation of one portion of sample for testing by Central Drug Lab. due to lacuna in law-Pleaded violation of Article 21 of Constitution-Whether correct? (No) -Appeal dismissed (Evidence Act, 1872)-Interpretation of Statutes) case law discussed.
       Held : If the person who was given a copy of the report of the Government Analyst notifies his intention to challenge the report it is open to the court to forward the portion of the sample kept in the court, to the Central Drugs Laboratory. The sub-section further envisages that any of the parties involved in the criminal proceedings (the accused as well as the complainant) can make a request to the court that the portion of the sample produced by the Inspector before the Magistrate may be sent to the Central Drugs Laboratory. When the said Central Drugs Laboratory sends a report after conducting the analysis or tests, the facts contained therein become conclusive evidence. (Para 12)
       The requirement of the provision would stand complied with when the Inspector gives one portion of the sample to the person from whom he took the sample, and forward the second portion to the Government Analyst and the third portion to the court (before which the prosecution is pending) and the fourth portion to the person whose name and address, etc. were disclosed by the vendor. (Para 15)
       Thus, in a case where the drug or medicine has passed from the manufacturer to a wholesaler (a distributor) and then to a retailer, the obligation of the Inspector (who takes the sample from a retailer) as for giving portions of the sample would end up by giving it to the retailer and also to the distributor (from whom the retailer bought the drug). (Para 16)
       Any legal provision which snarls an indicted person without affording any remedy to him to disprove an item of evidence which could nail him down cannot be approved as consistent with the philosophy enshrined in Article 21 of the Constitution. The first effort which courts should embark upon in such a situation is to use the power of interpretation to dilute it to make the provision amenable to Article 21. (Para 24)
        It is possible to interpret the provisions in such a way as to make a remedy available to him. When so interpreted the position is thus: The conclusiveness meant in Section 25(3) of the Act need be read in juxtaposition with the persons referred to in the sub-section. In other words, if any of the persons who receives a copy of the report of the Government Analyst fails to notify his intention to adduce evidence in controversion of the facts stated in the report within a period of 28 days of the receipt of the report, then such report of the Government Analyst could become conclusive evidence regarding the facts stated therein as against such persons. But as for an accused, like the manufacturer in the present case, who is not entitled to be supplied with a copy of the report of the Government Analyst, he must have the liberty to challenge the correctness of the facts stated in the report by resorting to any other modes by which such facts can be disproved. He can also avail himself of the remedy indicated in sub-section (4) of Section 25 of the Act by requesting the court to send the other portion of the sample remaining in the court to be tested at the Central Drugs Laboratory. Of course, no court is under a compulsion to cause the said sample to be so tested if the request is made after a long delay. It is for that purpose that a discretion has been conferred on the court to decide whether such sample should be sent to the Central Drugs Laboratory on the strength of such request. However, once the sample is tested at the Central Drugs Laboratory and a report as envisaged in Section 25(4) of the Act is produced in court the conclusiveness mentioned in that sub-section would become incontrovertible. (Para 25)
       We are unable to understand the rationale in drawing a hiatus between a manufacturer who is arraigned as an accused at the first instance itself and another manu facturer who is arraigned in exercise of the powers under Section 32A of the Act, as regards his right to challenge a document purporting to be the report of the Government Analyst. The right to challenge the report must, as of right, be available to both such manufacturers who are prosecuted for the offence. (Para 27)
       Held finally : When the provision can be interpreted in such a way as to avert absurd consequences in the manner indicated above it is not congenial to the interest of criminal justice to acquit the manufacturers of forbidden medicines or drugs on a technical ground that there is a lacuna in the legislation by not supplying copy of the report of the Government Analyst to the manufacturer in certain situations. To adopt the course of acquitting such offending manufacturers only on the legislative lacuna (if at all it is lacuna) would be hazardous to public health and the lives of the patients to whom drugs are prescribed by medical practitioners would be in jeopardy. Hence, when the legislative provision is capable of bring interpreted as we did now, the courts need not feel helpless in administering criminal justice in accordance with the objects sought to be achieved by the statute. In the result we dismiss this appeal. (Paras 28 and 29)

JUDGMENT

Thomas, J.-Leave granted.

2. Appellant, a pharmaceutical concern, succeeded in stalling prosecution proceedings launched against it by a Drug Inspector for a long period of well over a decade by now, and the trial remains where it started at. In the meanwhile the appellant concern and its proprietor sauntered through all the tiers of the judicial hierarchy and reached the apex Court and at all these forums they have one technical objection about the maintainability of the prosecution launched against them.

3. The events started on 30-4-1998 when a Drugs Inspector visited a medical retail shop at Kota (Rajasthan) and purchased a drug formulation by the trade name "Ashoka Liquid Extract". The said purchase was made for the purpose of sampling it under the provisions of the Drugs and Cosmetics Act, 1940 (for short "the Act"). When one of the portions of sample was tested by the Government Analyst (Jaipur) he reported that the sample was "mis-branded, adulterated and spurious drug". The retailer disclosed the address of M/s. Chetan Medical Stores, Kota (as the distributor or wholesaler) from whom the drug was obtained. On being contacted the said distributor disclosed the name of the appellant concern and its proprietor as the manufacturers of the drug.

4. A complaint was filed by the Inspector on 5.12.1990 against all the persons for the offences under Section 27(b), (c) and (d) of the Act. After hearing the arguments at the preliminary stage the trial magistrate framed a charge for the aforesaid offences against the appellants alone and the remaining accused were discharged. Appellants thereupon filed a revision petition before the Sessions Court contending that no charge could have been framed against them because the Inspector did not send or give one portion of the sample to the appellants and thereby the mandatory provision contained in Section 23(4)(iii) of the Act was not complied with. The Sessions Judge repelled the said contention as well as certain other contentions (which are not relevant as they were not followed up by the appellants later). Nonetheless, the Sessions Judge expressed the view that there is no material on record to show that the drug is spurious. Hence the count under Section 27(c) of the Act was deleted from the charge while the remaining counts were upheld as per the order passed by the Sessions Judge on 23.11.1995.

5. Appellants thereafter moved the High Court of Rajasthan under Section 482 of the Code of Criminal Procedure by focussing on the contention that there was non-compliance with the provision contained in Section 23(4)(iii) of the Act on the premise that the Inspector did not deliver one portion of the sample to the appellants. A Single Judge of the High Court declined to accede to the said contention and dismissed the petition filed by the appellants as per the order impugned in this appeal.

6. Mr. Alok Singh, learned counsel for the appellants contended that non-supply of one portion of sample to the manufacturer, who is joined as an accused in the complaint, has resulted in depriving him of a valuable right to test the correctness of the report of the Government Analyst. Learned counsel further contended that the consequence of such non-supply is that the conclusiveness attached by law regarding the findings mentioned by the Government Analyst is lost and the report of the Government Analyst would not be binding on the manufacturer. In order to examine the correctness of the above contention we may look at the relevant provisions of the Act.

7. Section 27 of the Act renders a person who manufactures for sale or for distribution, or who sells or stocks or offers for sale any adulterated or spurious drug, liable to a punishment with imprisonment for a time which shall not be less than one year though a maximum is provided. Section 23 of the Act empowers an Inspector to take sample of any drug for the purpose of test or analysis. Section 25 empowers a Government Analyst to whom a por

Click Here to Read the rest of this document

2001 Supreme(SC) 494

Cases Referred (1)