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1982 Supreme(HP) 53
High Court Of Himachal Pradesh
VYAS DEV MISRA
MANAGER, MEDICO PHARMACEUTICAL PROCESSORS, AMRITSAR - Appellant
Versus
STATE OF H.P. - Respondent
Cr. M.P. (M) No.295 of 1981
Decided On : 10/07/1982
Kapil Dev Sood for Petitioner; L.S. Panta, Dy. Advocate General, for the State; Deepak Gupta, for Respondents.
The report of the Government Analyst is conclusive evidence of the facts stated therein and the manufacturer can be impleaded at any stage of the trial.
Headnote:
DRUGS AND COSMETICS ACT - SECTION 18(A)(I), 23, 25, 32-A - RULES 46 - MANUFACTURER - RIGHT TO HAVE DRUG ANALYSED - REPORT OF GOVERNMENT ANALYST - CONCLUSIVE EVIDENCE - IMPLEADING MANUFACTURER AT ANY STAGE OF TRIAL - JOINT TRIAL OF MANUFACTURER, DISTRIBUTOR AND VENDOR - VAGUENESS OF REPORT OF ANALYST.
Fact of the Case:
A sample of chloramphenicol I. P. was taken from the shop of M/s. Best Pharma Corporation, Palampur, pharmaceutical distributors (referred to as the Vendor). A copy of the report along with the show cause notice was sent to the Vendor. The Vendor sent an attested copy of the purchase invoice of the drug to the Drugs Inspector. It revealed that the drug in question had been purchased from M/s. Bharat Drug House (referred to as the Distributor). A complaint for contravening Section 18 (a) (i) of the Act, punishable under S.27 (b), was filed before the Sub-Divisional Judicial Magistrate, Palampur, against (1) Shanti Sharma of M/s. Best Pharma Corporation, Palampur (the Vendor), (2) Sushil Kumar of M/s. Bharat Drug House (the Distributor) and (3) Manager, M/s. Medico Pharmaceutical Processors (the Manufacturer). The manufacturer prays that the charge be quashed and the order summoning him as an accused be set aside.
Finding of the Court:
The court held that the manufacturer was not entitled to receive a copy of the report as well as a portion of the sample. The court also held that the report of the Government Analyst was conclusive evidence of the facts stated therein. The court further held that the manufacturer could be impleaded at any stage of the trial and that the manufacturer, distributor, and vendor could be jointly tried.
Issues: 1. Whether the manufacturer was entitled to receive a copy of the report as well as a portion of the sample? 2. Whether the report of the Government Analyst was conclusive evidence of the facts stated therein? 3. Whether the manufacturer could be impleaded at any stage of the trial? 4. Whether the manufacturer, distributor, and vendor could be jointly tried?
Ratio Decidendi: 1. The court held that the manufacturer was not entitled to receive a copy of the report as well as a portion of the sample because the Drugs Inspector had fully complied with the provisions of Section 23 of the Act. 2. The court held that the report of the Government Analyst was conclusive evidence of the facts stated therein because Section 25 (4) of the Act made the report of the Central Drugs Laboratory conclusive evidence of facts stated therein. 3. The court held that the manufacturer could be impleaded at any stage of the trial because Section 32-A of the Act empowered the court to implead the manufacturer at any stage of the trial. 4. The court held that the manufacturer, distributor, and vendor could be jointly tried because there was prima facie evidence that there was unity of purpose.
Final Decision: The petition was dismissed.
1. Shri S.N. Sharma, Drugs Inspector Dharamsola, on 27th Feb., 1979 went to the shop of M/s. Best Pharma Corporation, Palampur, pharmaceutical distributors (referred to as the Vendor), and look a sample of chloramphenicol I. P. in accordance with the provision of S.23 of the Drugs and Cosmetics Act (the Act). One portion of the sample was given to the Vendor and another was sent to the Government Analyst. The analyst declared the sample as not of standard quality on the ground that it did not conform to I. P. in respect of polymorph-A content. A copy of the report along with the show cause notice was sent to the Vendor. The latter sent an attested copy of the purchase invoice of the drug to the Drugs Inspector. It revealed that the drug in question had been purchased from M/s. Bharat Drug House (referred to as the Distributor). A copy of the report of the analyst as well as a part of the sample was sent to the Distributor. A complaint for contravening Section 18 (a) (i) of the Act, punishable under S.27 (b), was filed before the Sub-Divisional Judicial Magistrate, Palampur, against (1) Shanti Sharma of M/s. Best Pharma Corporation, Palampur (the Vendor), (2) Sushil Kumar of M/s. Bharat Drug House (the Distributor) and (3) Manager, M/s. Medico Pharmaceutical Processors (the Manufacturer). After recording preliminary evidence, all the three accused were summoned. They have been charged for an offence punishable under Section 27 (b) of the Act. The manufacturer prays that the charge be quashed and the order summoning him as an accused be set aside.
2. Mr. Kapil Dev Sood, learned counsel for the petitioner, contends that it was the duty of the Drugs Inspector to send a copy of the report of the Government Analyst along with the sample to the manufacturer (the petitioner in this ease) and the Drugs Inspector having failed to do so, the right of the petitioner to have the drug analysed has been taken away.
3. Section 18 (a) of the Act lays down that no person shall manufacture for sale or sell, or stock or expose for sale, or distribute any drug which is not of standard quality. The expression "standard quality" has been defined by Section l6 of the Act to mean that the drug complies with the standard set out in the Second Schedule. The Second Schedule lays down that the drug included in the Indian Pharmacopoeia should comply with "standards of identity, purity and strength specified in the edition of the Indian Pharmacopoeia for the time being in force and such other standards as may be prescribed."
4. Section 23 of the Act lays down the procedure for taking a sample. The Drugs Inspector is required to divide the sample into four portions and effectively seal and suitably mark the same. He is further required to give one portion of the sample to the person from whom the sample is taken. Second portion of the sample is to be sent to the Government Analyst for test or analysis. The third portion is required to be produced in the Court if any proceedings are instituted in respect of the drug. The fourth portion is required to be sent to the person, if any, whose name address and other particulars have been disclosed under Section 18-A of the Act, Section 18-A reads:- "Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, it so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic."
5. Section 25 of the Act relates to the report of Government Analyst. Under sub-section (1) the Government Analyst is required to send to the Inspector a signed report in triplicate in the prescribed form. Sub-section (2) require the Inspector to deliver one copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and other particulars have been disclosed under Section 18-A of the Act, The Inspector is further required to retain the third copy for use in
