2018 Supreme(P&H) 1776

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Amol Rattan Singh, J.
Madan Lal – Petitioner
Versus
State of Haryana – Respondent
Crl. Revision No.4436, 4453, 4455, 4456, 4459, 4460, 4461 of 2017, 148, 149 of 2018
Decided On : 02-07-2018

IMPORTANT POINT
Adulterated Drug – Unless a doctor/pharmacist is specifically examined, as to whether the injected fungus/bacteria could cause death or grievous hurt, it would not be appropriate to convict the accused under clause (a) of S.27 of the Drugs & Cosmetics Act

Headnote:(A) Drugs and Cosmetics Act,1940, S.27 and S.19 – Adulterated Drug – Drug (Mannitol Injection) in transparent sealed bottles having fungus deposits – That were in turn found to be in sealed boxes at the time of the inspection by the complainant team-Non-manufacturing petitioner i.e. Distributors /Wholesalers and retailers held to be liable on following grounds – Held;

       (i) Where Drug itself was contained in sealed bottles that were neither opaque nor translucent there is no reason the petitioners who stored / sold the drug, could not "with due diligence" have opened the cardboard container without breaking the seals of the bottles inside those containers, to determine as to whether, what they had purchased, was indeed (apparently at least) free from any kind of impurities etc.

       (ii) Had, of course, such due diligence been observed by any / all of the 'non-manufacturer petitioners', they would most definitely have been entitled to the benefit of Section 19(3); but not, in my opinion, in the aforesaid situation, where they even did not bother to open the boxes in which the sealed bottles were packed, containing the drug, i.e. Injection Mannitol

       (iii) they did not exercise due diligence in even inspecting the sealed bottles, at the time of purchase, when all they had to do was to deseal the carton in which the sealed bottles were contained, to see the bottles, they too cannot be absolved of having committed an offence in terms of S.17-A and 18 (a) (i) of the Act.

       (iv) In absence of due diligence by non- manufacturing petitioner they are liable to be convicted under S.27 (b) and not S.27(a) of the Act.

       It is further to be observed here that if the drug had been such as was to be sold in the box itself, and therefore the seal could not have been opened by the vendor, naturally these petitioners would again have been entitled to the benefit of Section 19(3); however, the boxes in which the bottles containing the drug being a secondary packing, with each bottle also capable of being sold in a sealed condition individually, naturally, to sell any bottle individually the boxes would have to be desealed. Therefore, it would be expected of the seller of the drug to deseal the box at the time of its purchase, to determine whether the sealed bottles contained therein, were, apparently at least, containing a non-contaminated drug or not.

       He also very obviously did not exercise due diligence in inspecting the bottles that he purchased, to see as to whether they are contaminated or not, and even though the recovery of the contaminated drug was not actually made from him but from those to whom he had sold it, with no sample having been taken from his firm, and therefore whether or not the drug was contaminated during the period that he possessed it, is not positively determinable, yet, I would not grant him the benefit of doubt, in view of the fact that Section 19 (1) stipulates that it shall be no defence to prove merely that the accused was ignorant of the nature, substance or quality of the drug in respect of which the offence was committed, or even of the circumstances of its manufacture or import. Thus, he also not having shown due diligence (in terms of Section 19 (3)) to determine even the apparent quality of the drug, he cannot be absolved of the commission of the offence.

       (B) Drugs and Cosmetics Act, 1940, S.18 – Adulterated Drug – Sample – Non supply of sample to the manufacturer is not a fatal defect, if the manufacturer is not a person from whom the person "caught with the adulterated drug" has purchased the drug, he is not required to be served with a sample of the drug; and only the person from whom such "last person" brought it, is required statutorily to be so served.

       (C) Drugs and Cosmetics Act, 1940, S.18 – Adulterated Drug – Condition of seals – The factum of suspended matter being present in the bottle containing the drug, having already been specifically seen and mentioned even in the applications made by the complainant to the analyst, and eventually that suspended matter itself having been found to be fungus and bacteria that did not comply with prescribed standards, the non-mentioning of the condition of the seals, in the test reports, would not be fatal to the case of the complainant.

       (D) Drugs and Cosmetics Act, 1940, S.27 – Adulterated Drug-Penalty – Clause (a) of S.27 would only apply when a drug that is deemed to be adulterated or spurious is proved, when it is used by any person for diagnoses, treatment, etc., to be likely to cause his death or such harm to his body as to amount grievous hurt within the meaning of S.320 IPC – Not less than 5 years rigorous imprisonment, or not, would be debatable – Unless a doctor/pharmacist is specifically examined on the said question, as to whether the injected fungus/bacteria could cause death or grievous hurt, it would not be appropriate to convict a person for the commission of an offence punishable under clause (a) of S.27 of the Act and punish him accordingly.

       (E) Drugs and Cosmetics Act, 1940, S.27 – Adulterated Drug – Penalty – Drug in sealed container which was transparent found to have fungus -No competent witness was examined in the effect of such fungus /bacteria having been injected-Held; clause (b) of Section 27, would be applicable to the case of the petitioners, the drug manufactured/stored/sold by them being adulterated but not being a drug referred to in clause (a) and therefore, the punishment to be imposed would be in terms of sub-clause (i) of clause (b) of Section 27.

       (F) Drugs and Cosmetics Act, 1940, S.27 – Adulterated Drug – Reduction in Sentence – Offence was committed in 2003 – Therefore unnamed Act would apply which provided for minimum sentence of 1 year and further to a lesser period for any adequate and special reasons-In present case, sentence of 5 years of non-manufacturing petitioners reduced to already undergone along with fine as petitioners are facing trial from about last 15 years.

       In the context of the present cases it also needs to be stated that it is the admitted case of the complainant that the adulteration, in the form of fungus, was visible to the naked eye upon seeing the bottle in which the drug was contained. Thus, the likelihood of it being administered to anyone who opened the carton in which the bottles were contained would not be very high, though obviously the chances of actual usage cannot be ruled out.

       Still, this Court having opined that the offence committed by the petitioners being one not punishable under clause (a) of Section 27, their conviction and sentence has to be modified accordingly as is prescribed for the commission of an offence punishable under Section 27 (b) instead of Section 27(a) of the Act. being the proprietor and authorised signatory respectively of the firm that manufactured the drug, and it having been found that it was an improper method of manufacturing that led to the fungus and bacteria developing in the drug, they cannot be put on the same footing as the other petitioners, and consequently, still keeping in view the fact that they have been facing prosecution for the past 13 and a half years, they are imposed a sentence of rigorous imprisonment of 6 months, with the period of custody already undergone by them, either at the under trial or post conviction stages, to be set off from the total sentence now imposed upon them.