Heard Mr. Lawande, learned Additional Public Prosecutor appearing on behalf of the State and Mr. Usgaonkar, learned counsel appearing on behalf of the respondent no.5.

2. This is a State appeal against acquittal of respondent no.5 above-named, vide judgment and order dated 19/04/2010, passed in Criminal Case No. 192/N/96/F/III.

3. For convenience, the parties shall hereinafter be referred to as arrayed before the Magistrate.

4. The State, through the Drugs Inspector namely Ms. Jyoti Sardessai, had lodged the complaint before the Judicial Magistrate First Class, at Margao against five accused persons for contravention of the provision of Section 18(a)(i) punishable under Section 27(c) of the Drugs and Cosmetics Act, 1940 ('the Act', for short), which came to be registered as Criminal case No. 192/N/96/III.

5. The case of the complainant, in short, is as follows:

The accused no.1 is a Partnership Firm having manufacturing premises at Shirali, Uttar Kannada and is engaged in drug manufacturing activity at their factory and holds drug manufacturing licence No. KTK/28/265/94 for manufacturing of drugs for sale under the provisions of the Drugs and Cosmetics Rules, 1945 ('the Rules', for short). On 28/06/1995, the complainant visited the premises of M/s. Anil Enterprises situated at Margao and found large number of drugs for sale which included 'Framycetin Sulphate Cream' under the brand name 'Fratouch' manufactured by M/s. Shivani Laboratories (accused no.1). The complainant drew samples of three batches for test analysis in the presence of the owner of the said shop and intimation was given to him. One sealed portion of each of the three batches was also given to the said owner. The credit note was issued by the owner for an amount of Rs.185.75/- towards the costs of the drugs. The said samples were sent for analysis at Bombay and the Government analyst declared that the said samples were not of standard quality vide his reports dated 08/12/1995, 13/12/1995 and 15/12/1995, with the reason that the sample does not conform to the standards for Framycetin Sulphate as the contents of Neomycin 'C' in the samples was more than the standard limits. During the inquiry, it was reported by M/s. Anil Enterprises that the drugs were supplied to them by M/s. Shivani Pharmatech, Bangalore which in turn disclosed that the said drugs were purchased from M/s. Shivani Laboratories, Shirali (accused no.1), who is the manufacturer. The accused nos.1 to 5, therefore, contravened Section 18(a)(i) of the Act by manufacturing for sale and selling a drug which was not of standard quality and, therefore, committed an offence punishable under Section 27(c) of the Act. Written sanction from the Director of Food and Drugs Administration, Panaji to launch the prosecution against the accused persons has been duly obtained.

6. The accused no.1 could never be served with the process. The accused nos.2, 3 and 4, upon appearance before the learned Magistrate, filed an application dated 16/03/1998 for recalling process and dropping the proceedings as against them. It was alleged in the application that the complaint did not disclose that the accused nos. 2 to 4 were responsible for day to day activity in the manufacturing process of the accused no.1. It was also stated that the sanctioning authority had concluded that there is one person authorised by Firm for looking after the day to day affairs who has been joined as the accused no. 5. The complainant objected to the said application. The learned Magistrate passed the order dated 29/06/1998 thereby rejecting the application. The accused nos.2 to 4 then approached the learned Sessions Court at Margao and in Criminal Revision Application No.93/1999, by judgment and order dated 17/01/2003, the process issued against the accused nos. 2 to 4 in Criminal Case No.192/N/1996, came to be quashed and set aside and the learned Magistrate was directed to proceed with the matter only as against the accused nos.1 and 5.