1999 Supreme(Bom) 131

IN THE HIGH COURT OF BOMBAY
S. Radhakrishnan, J.
The State of Maharashtra ..... Petitioner.
Versus
Shri R.A. Chandawarkar others ..... Respondents.
Criminal Revision Application No. 228 of 1991, decided on 18 19-2-1999.
Advocates appeared :
D.S. Mhaispurkar, A.P.P., for the petitioner-the State of Maharashtra.
V.B. Ganatra, for the respondent Nos. 1 to 6.

Headnote:Sections 245 and 246-See Drugs and Cosmetics Act, 1940, Sections 20 and 21.

       Sections 245, 246 and 401 - See Drugs and Cosmetics Act, 1940, Sections 16, 18(a)(i), 27(d) and 34.

       Drugs and Cosmetics Act, 1940

       Sections 16, 18(a)(i), 27(d) and 34-Criminal Procedure Code, 1973, Sections 245, 246 and 401-Complaint under Drugs Act-Prosecution against company-Contention that accused Nos. 1, 3, 4 and 5 were in-charge of and responsible to company at time of alleged offence-Held, thus in view of Section 34 of Act no prosecution can lie against these accused persons and they were rightly discharged.-In view of the aforesaid decisions of this Court and of the Apex Court, it is very clear that in the instant case, there is no averment against the Accused Nos. 1, 3, 4 and 5 and there is no evidence also against the said accused. Whereas in cross-examination PW 1 Mr. Y.D. Patil has conceded that there was no evidence for showing that the Accused Nos. 1, 3, 4 and 5 were in-charge of and responsible for the conduct of the business of the Company. The learned APP has also fairly conceded that there is no material or evidence against the said Accused Nos. 1,3,4 and 5 he also does not dispute the above proposition of law that the said Directions must be incharge of and responsible for the Company in its conduct of the business, failing which they cannot be proceeded against.

       Sections 16, 18(a)(i) and 34 Criminal Procedure Code, 1973, Section 245(1)-Offences under Act, 1940-Liability of Director accused No proof that he was in-charge of and responsible to conduct of business Hence he cannot be prosecuted in view of Section 34 of the Act.

       Sections 18(a)(i), 16 and 27(d)- The best method to check the correctness of the analysts report is to cross-examine the public analyst Seizure of drugs viz. Vanmycetin opticops-Report of public analyst Sample of Vanmycetin opticops not stored in a proper temperature as prescribed under the Indian Pharmacopoeia and for over a period of four months the same was kept exposed at a temperature much higher than 250C_ The possibility of potency getting reduced could not be totally ruled out, and as such, the benefit ought to go to the accused. 39 BLR 629-Relied on.

       Section 20-Appointment of Government Analyst-Provisions of Section 20 are mandatory-It is, therefore, obligatory that the State must publish in an official gazette the appointment of the Government Analyst specifying therein the- area wherein the Government Analyst can operate and the products which he can test and analyse.

       Sections 20 and 21-Appointment of Drug Inspector and Government Analyst and allocation of area of functioning, specification of drugs or cosmetics-Publication thereof in official gazette-Mandatory and not discretionary.

       Sections 20 and 21-Criminal Procedure Code, 1973, Sections 245 and 246-Complaint under Drugs Act-Prosecution launched by Drugs Inspector and sample analysed by Government Analyst-Their authorities challenged as not authorised by notification in gazette-Held, provisions of Sections 20 and 21 being mandatory prosecution and analysis not valid. It is to be noted here that the provision of Section 21 of the Drugs and Cosmetics Act, 1940 makes it abundantly clear that the post of Drugs Inspector is a very vital public post with wide range of powers to take samples and seize the samples and prosecute the persons for selling the adulterous, spurious and sub-standard quality drugs. In view of such vital powers conferred by Section 21 of the Drugs and Cosmetics Act, 1940 on such Drug Inspectors, the said section clearly, mandates that the Central Government or the State Government, may issue notification in Official Gazette so as to appoint such Drug Inspectors for such areas as assigned to them. The intention of the legislature is very clear from the said Section 21 of the Drugs and Cosmetics Act, 1940 that the appointment of such a person holding such an important post as a Drug Inspector, especially in the interest of public health, obviously will have to be notified in the official gazette and that the said notification should indicate the area in which the said Drug Inspector can exercise his powers. In fact, Section 21 does not say that the publication of notification in Official Gazette is discretionary. If one were to look at the wording of the said section carefully, the Central Government or the State Government may appoint such qualified persons as the Drug Inspector as it thinks fit. In fact, the wording of the said Section 21 shows that there is coma after the word may and not before the said word so as to construe that the issuance of the notification in the Official Gazette is discretionary. Taking in to account all the purposes and objects of the Act and the powers conferred on the Drug Inspector who is the vital authority to initiate the prosecution, it was held that the appointment of Drug Inspector can only be through an Official Gazette Notification and not otherwise. Court is also of the opinion that such a notification should also indicate the area in which such a Drug Inspector can operate and exercise his powers, and the same should not be left to conjectures and surmises of the public. Considering the clear wording of Section 20 of the Drugs and Cosmetics Act, 1940, there is no doubt that the provisions therein are mandatory and thus, the State must publish in an Official Gazette the appointment of the Government Analyst specifying therein the area wherein the Government Analyst can operate and also specifying therein the products with which the Government Analyst can test and analyse. Specifically, in view of the aforesaid observations of the Supreme Court, the State can appoint the Government Analysts only by publication of Government Gazette Notification as contemplated under Section 20 of the Drugs and Cosmetics Act, 1940, and not otherwise. The general notification dated 5th October, 1971 being Exh. P. 32 referred to and relied upon by the learned APP would not suffice for the purposes of compliance with Section 20 of the said Act. Since the said notification dated 15th October, 1971 published in the Government Official Gazette is totally ambiguous and uncertain, in as much as, it is difficult to ascertain as to who exactly will be the Government Analyst and for which are and for which products. The said notification is totally vague. In any event, the Government ought to have issued a notification and published the same in an Official Gazette with regard to the appointment of Dr. A.K. Nadkarni, which has not been done at all in the instant case. Hence it was held that Dr. A.D. Nadkarni was not appointed as a Government Analyst validly and properly as per the provisions of Section 20 of the Drugs and Cosmetics Act, 1940.

       Appointment of Drug Inspector-The appointment of Drug Inspector can only be through on Official Gazette Notification and not otherwise-Such a notification should also indicate the area in which a Drug Inspector can operate and exercise his powers and the same should not be left to conjectures and surmises of the public.

       Sections 34(1), 18(a)(i), 16 and 27(d)-Prosecution of director of company-Unless and until the prosecution makes an averment and produces evidence to the effect that the concerned director was incharge of and responsible to the conduct of the business of the company, prosecution cannot lie against such director. 1998 All India Prevention of Food Adulteration Journal 239, AIR 1989 SC 1982, AIR 1974 SC 434-Relied on.

       Section 61-Admissibility in evidence-Report of Government Analyst-Admissible in evidence But where Government Analyst also examined as witness-In such situation his oral evidence be given preference over his report and its contents.- There is no doubt that the report ex facie could be admitted in evidence as to its contends also, but the issue is that if the Government Analyst were to be examined as a witness, then, his oral evidence prevails over his report. The Analyst is subjected to cross-examination and as such, the evidence of the Analyst cannot be conclusive only on the basis of the report. Once the prosecution decides to examine the Government Analyst his oral evidence would prevail over the statement contained in his written analysis report.

       Section 34(2)(b)(i)-Specific Relief Act, 1963-Agreement of sale Specific performance-Any dispute in this respect can be referred to arbitration.- The right to specific performance of an agreement of sale deals with contractual rights and it is certainly open to the parties to agree with a view to shorten litigation in regular Courts to refer the issues relating to specific performance to arbitration. There is no prohibition in the Specific Relief Act, 1963 that issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. Nor is there such a prohibition contained in the Arbitration and Conciliation Act, 1996 as contrasted with Section 15 of the English Arbitration Act, 1950 or Section 48(5)(b) of the English Arbitration Act, 1996 which contained a prohibition relating to specific performance of contracts concerning immovable property.