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DELHI HIGH COURT
PRITHVI RAJ, J.
STATE (DELHI ADMINISTRATION)
VERSUS
OM PRAKASH AND ANOTHER
Criminal Revn. No. 6 of 1971,
Decided on : 20 -9 -1973.
DRUGS AND COSMETICS ACT, 1940 - SECTION 18(C), 18(A)(II), 27(A)(II), 27(B) - SALE OF DRUGS WITHOUT LICENSE - MISBRANDING - SENTENCING - APPLICABILITY OF PROBATION OF OFFENDERS ACT, 1958.
Fact of the Case:
The respondents were charged with selling, stocking, and exhibiting for sale drugs without a license and misbranding drugs in violation of the Drugs and Cosmetics Act, 1940. The first respondent, Om Parkash Aggarwal, pleaded guilty and was released on probation under the Probation of Offenders Act, 1958. The second respondent, Ram Govind, also pleaded guilty and was sentenced to imprisonment till the rising of the court and a fine under both sections.
Finding of the Court:
The court held that the provisions of the Probation of Offenders Act, 1958, were applicable to offenses under the Drugs and Cosmetics Act, 1940, except in cases where the offender was found guilty of an offense punishable with death or life imprisonment or where a minimum sentence was prescribed under Section 5(2) of the Prevention of Corruption Act, 1947. The court found that the sentence imposed on the first respondent, Om Parkash Aggarwal, was inadequate, but since he had already complied with the terms of the probation order, it declined to interfere with the order. However, the court found that the sentence imposed on the second respondent, Ram Govind, was inadequate and sentenced him to rigorous imprisonment for three months and a fine of Rs. 1,000/-.
Issues: 1. Whether the provisions of the Probation of Offenders Act, 1958, were applicable to offenses under the Drugs and Cosmetics Act, 1940. 2. Whether the sentence imposed on the first respondent, Om Parkash Aggarwal, was adequate. 3. Whether the sentence imposed on the second respondent, Ram Govind, was adequate.
Ratio Decidendi: 1. The court held that the provisions of the Probation of Offenders Act, 1958, were applicable to offenses under the Drugs and Cosmetics Act, 1940, except in cases where the offender was found guilty of an offense punishable with death or life imprisonment or where a minimum sentence was prescribed under Section 5(2) of the Prevention of Corruption Act, 1947. The court reasoned that the non obstante clause in Section 4 of the Probation of Offenders Act, 1958, clearly manifested the intention of the legislature that the provisions of the Act would have effect notwithstanding any other law for the time being in force. 2. The court found that the sentence imposed on the first respondent, Om Parkash Aggarwal, was inadequate, as he was liable to an imprisonment for a term of not less than one year under Section 27(a)(ii) of the Drugs and Cosmetics Act, 1940. However, the court declined to interfere with the order since the respondent had already complied with the terms of the probation order and the State had failed to seek suspension of the operation of the order. 3. The court found that the sentence imposed on the second respondent, Ram Govind, was inadequate, as he was liable to an imprisonment for a term of not less than one year under Section 27(a)(ii) of the Drugs and Cosmetics Act, 1940. The court sentenced him to rigorous imprisonment for three months and a fine of Rs. 1,000/-.
Final Decision: The court sentenced the second respondent, Ram Govind, to rigorous imprisonment for three months and a fine of Rs. 1,000/- in default of payment of which he shall further undergo rigorous imprisonment for three months.
1. A complaint under Sections 18(c), 18(a)(ii) read with Ss.27(a)(ii), 27(b) of the Drugs and Cosmetics Act, 1940, (Act XXIII of 1940), hereinafter referred to as the Act, was filed against the respondents Om Prakash Aggarwal and Ram Gobind, that they were on 17th June, 1969, selling, stocking and exhibiting for sale drugs at their shop known as M/s. Gobind General Store without a drug licence, and thereby the respondents contravened the provisions of Section 18(c) of the Act, punishable under Section 27(a)(ii) of the said Act, with imprisonment which shall not be less than one year. It was further alleged that on the aforesaid date. Om Parkash Aggarwal, respondent No. 1 sold one bottle of Queens Balm and 4 tablets of Sulphadiazine for Rs. 1.65 P., to one Vinod Behari Bajpai. On demand, the respondent Om Prakash Aggarwal issued a cash memo for Queens Balm but refused to issue cash memo for Sulphadiazine tablets. The shop of the respondents was inspected on the same day. Respondent No. 1, Om Parkash Aggarwal was incharge of the shop at that time. Four samples of Tetracycline Capsules. B. No. 6711, manufactured by M/s. Cyper Pharma, J-38, Kirti Nagar, New Delhi, Sulphaguanidine Tablets Batch No. not mentioned, Phenargan Tablets Batch No. 1202, bearing the label of M/s. May and Bayker, Bombay and Sulphadiazine Tablets Batch No. and manufacturer's name not given on the label, were taken into possession from Om Parkash Aggarwal under Section 22 of the Act in accordance with the provisions of Section 23 of the Act. Two order forms and a book in which sales were recorded were recovered and seized from the custody of the respondents under Section 22 of the Act. The samples were sent to the Government Analyst, Delhi Administration for test and analysis. The Government Analyst reported that the samples of Phenargan tablets and the samples of Tetracycline capsules on test were found to be of standard quality, but on the samples of Sulphadiazine Tablets and Sulphaguanidine Tablets, no opinion was expressed by the Government Analyst for want of complete claims on the label. The case of the prosecution was that the tablets of Sulphadiazine and Sulphaguanidine were misbranded within the meaning of Section 17(e) of the Act as they were not labelled as required under Rule 96 of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as the Rules) in respect of Batch number, manufacturer's name, claim regarding the standard of the tablets. The respondents were alleged to have contravened the provisions of Section 18a(ii) punishable under Section 27(b) of the Act, with imprisonment for a term which may extend to three years. On the said complaint the accused were summoned.
2. The prosecution examined Dr. D.P. Saxena, Drug Inspector, Delhi Administration, who supported the accusations in the complaint. Despite opportunity given, Shri Saxena was not cross-examined by the respondents. On the evidence of Shri Saxena, Shri P. Chakraborty. Judicial Magistrate First Class, Delhi, framed the following charges against the respondents :-
"Firstly - That the respondents on 17-6-1969 at about 11.00 a.m. sold drugs, Queens Balm and Sulphadiazine Tablets and stocked and exhibited for sale various drugs as given in the recovery memo without having the requisite drug licence and thereby committed an offence punishable under Section 27(a)(ii) of the Drugs and Cosmetics Act.
Secondly - That the respondents on the aforesaid date and time stocked and exhibited for sale drug Sulphadiazine and Sulphaguanidine tablets which were mis branded within the meaning of Section 17(e) of the Drugs and Cosmetics Act and thereby committed an offence punishable under Section 27(b) of the Drugs and Cosmetics Act 1940".
Statements of the respondents were recorded on the charge. Respondent No. 1, Om Parkash Aggarwal pleaded guilty to the charge and prayed that he be excused as he was a Government employee. Respondent No. 2, Ram Govind pleaded guilty to the charge admitting
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