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Rajasthan High Court, Jaipur Bench
Honble M.A.A. KHAN, J.
M/s. Amery Pharmaceuticals & Anr. - Appellant
Versus
State of Rajasthan - Respondents
S.B. Cr. Misc. Petition No. 1034 of 1998
Decided On : October 25, 1999
A combined reading of Sections 18A, 19(3), 23(4)(iii) and Sec. 25(2) discloses that every person who is not the manufacturer of the drug or cosmetic or his agent for distribution thereof, is under a statutory obligation to disclose, when so required, to the Drugs Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic. Once such a person discharges his obligation U/s. 18A, Sec. 23(4)(iii) r.w. Sec. 25(2) makes it obligatory upon the Drugs Inspector to send one of the samples to the person whose name, address and other particulars have been disclosed by the seller of the drug or cosmetics U/s. 18A alongwith a copy of the report of the Govt. Analyst. Sub-sec. (3) of Section 23 requires the Drugs Inspector to divide the sample, purchased by him from the seller, into, at the most, four portions and effectively seal and suitably mark them. Of the four samples, one is to be restored to the seller, the second to be sent to the Govt. Analyst for chemical examination, the third to be produced in the court, in case a complaint is filed, and the fourth, where taken, is to be sent to the person whose name, address and other particulars have been disclosed upon the Drugs Inspector U/s. 18A. The delivery of the samples by the Drugs Inspector to different persons/authorities in that manner clearly suggests that the fourth sample alongwith the copy of the report of the Govt. Analyst is to be sent or delivered to either the manufacturer of the drugs or cosmetics or to his agent for distribution thereof and not to both. This position has been made quite clear by the legislature by use of the expression ``not being the manufacturer of a drug or cosmetics or his agent for distribution thereof in the language of Section 18A itself. This interpretation also fits in the scheme underlying Sections 18A, 19, 23 and 25 of the Act 1940. It is, therefore, held that the fourth portion of the sample of the drug or cosmetic is to be delivered, sent or forwarded alongwith the report of the Govt. Analyst by the Drugs Inspector either to the manufacturer of the drug or cosmetic or his agent for distribution thereof and not to both. (Para 7)
(2). Since the legality and validity of the order of the learned Magistrate was noticed to have been examined by the learned Addl. Sessions Judge in his concurrent revisory jurisdiction and a second revision of the same order is barred by the provisions U/s. 397(2) Cr. P.C. I heard the learned counsel for the parties with a view to know and satisfy myself as to whether it is a fit case to exercise the powers of this court under Sec. 482 Cr. P.C. After examining the relevant orders, I am satisfied that the case involves no abuse of the process of the court of the learned Magistrate and his order occasions no injustice to the petitioner.
(3). On 30.4.1988 the Drugs Inspector purchased the requisite quantity of Ashok liquid Extracts, manufactured by the present petitioners, from M/s. Chetan Medical Stores, Kota, and prepared four samples therefrom as per requirement of the provisions of the Act of 1940 and the Rules framed thereunder. The sample forwarded by the Drugs Inspector to laboratory for chemical analysis was reported to be misbranded, adulterated and containing spurious substance. On query from the seller, the Drugs Inspector came to know that M/s. Chetan Medical Stores had purchased the said drug from M/s. Suraj Medicals Kota, which was the duly authorised distributor of the said drug. The Drug Inspector, therefore, sent one of the samples alongwith a copy of the report of the analyst to the said distributor. The licensed distributor informed the Drugs Inspector that he had obtained the said drug in sealed condition from the present petitioners and had sold the same to M/s. Chetan Medical Stores in that condition. The Drugs Inspector had purchased the said drug from M/s. Chetan Medical Stores in sealed condition.
(4). Based on the above facts the Drugs Inspector filed a complaint against M/s. Chetan Medical Stores, Kota, and its partners (Accused Nos. 1 to 4), M/s. Suraj Medicals, Kota, and its partners (Accused Nos. 5 to 8) and M/s. Amrey Pharmaceuticals Karnal (Haryana) and its proprietor (Accused Nos. 9 to 10 respectively the present petitioners). The learned Magistrate took cognizance of the afore-mentioned offences on the basis of the complaint filed by the public servants and summoned all the above-mentioned 10 persons (including the present petitioners) as accused thereunder. After recording the evidence of PW. 1 R.S. Thakar and PW.2 R.C. Choudhary, the Drugs Inspectors before charge and after hearing the parties the learned Magistrate discharged accused Nos. 1 to 8 (as mentioned above) but charged the present petitioners of the offences stated above.
(5). It was vehemently urged on behalf of the petitioners that by not delivering a sample of the drug alongwith the copy of the Govt. Analyst to the present petitioners the Drugs Inspector violated the mandatory provisions contained in Sections 18A, 23 and 25 of the Act of 1940 and therefore the order of framing of charges for offences U/s. 27(B)(i), 27(C) and 27(D) against the petitioners was bad in law, amounts to abuse of the process of court and causes gross injustice to the petitioners. In this behalf reliance was placed on the Division Bench decision of the Himachal Pradesh High Court in the case of Kiran Dev Singh vs. State of Himachal Pradesh (1). I however find no force in this argument.
(6). Sections 18A, 19(3), 23 an
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