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ALLAHABAD HIGH COURT
Amar Saran, Shyam Shankar Tiwari, JJ.
Brahmaji -Appellant
Versus
State of U.P. and others -Respondent
Criminal Misc. Writ Petition No. 16212 of 2008
Decided On : 29-01-2010
Drugs and Cosmetics Act - Amendments and Enhanced Penalties - Sections 27(a), 32(b), 36AB(i), 26A - The judgment discusses the amendments made to the Drugs and Cosmetics Act, 1940, including enhanced penalties for graver offences under section 27(a) and compoundable offences under section 32(b). It also highlights the designation of special courts for trying offences, powers of the Central Government to regulate drug manufacturing, and the need for comprehensive strategies to tackle the trade of spurious drugs.
Fact of the Case:
The judgment discusses the amendments made to the Drugs and Cosmetics Act, 1940, including enhanced penalties for graver offences under section 27(a) and compoundable offences under section 32(b). It also highlights the designation of special courts for trying offences, powers of the Central Government to regulate drug manufacturing, and the need for comprehensive strategies to tackle the trade of spurious drugs.
Finding of the Court:
The court found that the government had issued an amendment Act to the Drugs and Cosmetics Act, enhancing penalties for various offences. However, it expressed concerns about the implementation of these measures, including the shortage of drug staff, poor infrastructure, and lack of systematic efforts to check the proliferation of spurious drugs.
Issues: The issues discussed in the judgment include the shortage of drug staff, non-uniform distribution of drug outlets, vacancies in drug control authorities, and the reluctance of the government to release funds for setting up a computerized system for drug management.
Ratio Decidendi: The court emphasized the need for effective implementation of the amended laws and comprehensive strategies to tackle the trade of spurious drugs. It directed the Central and State Governments to provide clear indications of their plans for controlling the menace of spurious drugs, ensuring requisite manpower and infrastructure, and speeding up computerization.
Final Decision: The court directed the Central and State Governments to provide clear indications of their plans for controlling the menace of spurious drugs, ensuring requisite manpower and infrastructure, and speeding up computerization. The case was listed for obtaining responses of the parties concerned and for further orders.
We have heard Dr. Ashok Kumar Nigam, Additional Solicitor General of India assisted by Shri Ajay Bhanot and Shri Rishi Kant Singh, Shri V. Tripathi, learned Additional Government Advocate for the State and Shri Suneet Kumar for the intervenor.
The Deputy Drug Controller of India is present today in pursuance of our order dated 8.1.2010.
2. In the affidavit filed by the Deputy Drug Controller of India on behalf of the Government of India, it is mentioned that the Government of India has now issued an amendment Act of 2008 to the Drugs and Cosmetics Act, 1940 ( herein after referred to as "the Act') and the said amendment has been notified in the gazette and the amendment made operational from 10.8.2009. By means of the said amendment, it is pointed out that for the graver offences under section 27(a) of giving adulterated or spurious drugs, which are likely to cause death or grievous hurt, the earlier prescribed imprisonment of not less than five years term, which may extend to life imprisonment and fine not less then 10,000/- has been substituted with an imprisonment of not less than ten years, which may extend to imprisonment for life and fine which is not less than ten lac rupees or three times of the drugs confiscated, whichever is more.
3. The fine realized from the persons is to go to the patient or to his relatives in cases the patient has died due to use of the adulterated or spurious drug.
The offences under the other provisions have similarly been enhanced.
For the minor offences, under section 32 (b) i.e. for importing of non-prohibited drugs or non-disclosure of the names of the manufacturers or not keeping of documents or non-disclosure of information, which were not punishable by mandatory imprisonment, the said offences have been made compoundable by the Central Government or the State Government or authorised officer before or after the institution of prosecution by payment of fine to the concerned Government, which will not exceed the maximum amount of fine, which could be imposed for the offences so compounded, but a repetition of the offence has been made non-compoundable.
Also the punishments and fines for dealing in adulterated Ayurvedic, Siddha or Unani drug have been enhanced. Under section 36AB (i) the Central Government or the State Government in consultation with the Chief Justice of the High Court are required to designate one or more Courts of Sessions as special courts for trying the offences under the Drugs and Cosmetics Act.
4. It is pointed out that under section 26 A of the Act the Central Government also has the powers of regulating, restricting or prohibiting manufacturing of drugs in public interest if the contents are harmful and carry risk to human and animals or lack the therapeutic value claimed. The Drug Technical Advisory Board (DTAB) renders advice in this matter and so far manufacturing of 78 drug formulation have been prohibited.
5. The Central Drug Control Organization (CDCO) headed by the Drug Controller of India is conducting countrywide surveys for determining the extent of spurious drugs in the market. The states were directed to play a pro-active role in assessing the extent of spurious drugs in the 39th meeting of the Drugs Consultative Committee (DCC) and directions were issued for taking action when spurious drugs were found in accordance with the enhanced penalties laid down.
Under the world bank capacity building programme aid has been provided for testing facilities and to establish new drug testing laboratories.
A whistle blower policy has been initiated for giving award to the informers to bring about detection of spurious drugs.
As learned counsel for the intervenor has rightly pointed out that it is not sufficient to enact stringent laws. In the State of UP enhanced laws were issued earlier, but the crucial issue is ensuring that persons dealing in spurious drugs are detected and are speedily tried and given the enhanced punishments prescribed. We there
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