The court established that a licensed dealer is not liable for substandard products purchased from another licensed dealer, provided the source is properly disclosed.

JUDGMENT

ANISH KUMAR GUPTA, J.

1. Heard Shri Hari Keshav, learned counsel for the appellant and Shri Pankaj Srivastava, learned AGA alongwith Smt. Harshita Rani, learned AGA for the State.

2. The instant criminal appeal has been filed by the appellant herein being aggrieved by judgement and order dated 09.02.1984, whereby the appellant herein was convicted for the offence under Section 27 (a)(ii) and 27(b) of the Drugs and Cosmetics Act, 1940 and he was sentenced to undergo three years rigorous imprisonment and fine of Rs. 6,000/-. In default of payment of fine he was directed to undergo three years further rigorous imprisonment.

3. The brief facts of the case are that the appellant was the proprietor of the Arogya Store and used to store and sell medicines to the general public on the prescriptions of the registered medical practitioners. On 03.01.1976, the Drug Inspector, Pradeep Kumar Rastogi (PW1) along with another Drug Inspector, D.K. Jaju (PW3), have got the information that the appellant herein was trading in spurious drugs in his shop. The above two Drug Inspectors visited the medical store of the appellant herein on 03.01.1976. They found the appellant was sitting in his aforesaid medical shop. Drug Inspector, Pradeep Kumar Rastogi (PW1) disclosed his identity and the purpose of his visit to the medical store of the appellant. According to the prosecution, the two Drug Inspectors allegedly gave their searches and summoned the witnesses. However, none of the witnesses turned up in the instant case.

4. From the medical store of the appellant, the Drug Inspector P.K. Rastogi (PW1) had obtained the sample of four medicines and prepared the memo for the same, wherein he has also obtained the signature of the appellant herein and one part of the sample of each of the medicines taken was given to the accused, which was allegedly acknowledged by the appellant in Form No. 17 with regard to the receipt of the sample. Form No. 17 was also signed by Drug Inspector Jaju (PW3).

5. For the purchase of aforesaid medicines, the bill was allegedly issued by the appellant herein for a total sum of Rs. 66.15. According to the prosecution, though the amount of the bill was not tendered on the spot by the Drug Inspector, however, later on a draft of Rs.66.15 dated 09.01.1976 was sent to the appellant by post on 12.01.1976. However, the receipt of the said demand draft has been disputed by the appellant. According to him, he has never received the said demand draft nor the same was encashed by him. 6. In the aforesaid samples prepared by the Drug Inspector, a sample of 40 white circular tablets, the word chloroquine 250 mg was engraved on one side and Scortid on the other side. Batch No. T500192 of Nectarine Company, was hand written on the bottle. The aforesaid sample was sent by the Drug Inspector to the Central Drug Laboratory, Calcutta on 07.01.1976 for analysis. The Central Drug Laboratory, Calcutta gave its report to the aforesaid centre on 14.06.1976, stating therein the average weight of each tablet is 0.3794 grams. On analysis it didn't give positive test for chloroquine phosphate. The opinion of the analyst is that the sample does not contain chloroquine phosphate. The item is spurious preparation and is considered misbranded under Section 17 F and adulterated under Section 17 (B)(e)(ii) of the Drugs and Cosmetics Act.

7. As per the prosecution, the other three medicines of which the sample were taken from the medical stores, were also sent for the analysis and were found t