JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 120 of 1975.

Appeal by special leave from the Judgment and Order dated 29-1-1975 of the Karnataka High Court in Criminal Appeal No. 274/74.

AND

Writ Petition No. 2929 of 1980.

(Under Article 32 of the Constitution).

AND

Criminal Appeal No. 96 of 1975.

Appeal by special leave from the Judgment and Order dated 13-9-1974 of the Karnataka High Court in Criminal Appeal No. 168/74.

S. K. Bisaria for the appellant in Cr. A. No. 96/75.

A. K. Sen and S. K. Bisaria for the appellant in Cr. A. 120/75 and for the Petitioner in W.P. 2929/80.

N. Nettar for the respondent in all the matters.

607

The Judgment of the Court was delivered by Criminal Appeal No. 120 of 1975 GUPTA, J.- This is an appeal by special leave from a judgment of the Karnataka High Court by which the High Court set aside the acquittal of the three appellants before us ordered by the Judicial Magistrate, 1st Class, (4th Court), Bangalore and convicted them of various offence under the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act). The first appellant M/s. Rajasthan Pharmaceutical Laboratory is a firm of which the second appellant is a partner and the third appellant is the Manager. The first appellant holds a licence under the Act for repacking of drugs mentioned in the list which forms part of the licence. For purposes of the Act the first appellant is a manufacturer of the said drugs in view of the definition of the term ’manufacture’ occurring in section 3(f) of the Act which is as follows:-

"manufacture in relation to any drug or cosmetic includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale and distribution but does not include the compounding or dispensing of any drug, or the packing of any drug or cosmetic in the ordinary course of retail business; and ’to manufacture’ shall be construed accordingly;"

On February 27, 1970 on a search of the business premises of the first appellant, a Drugs Inspector seized 42 items of drugs from a room, 33 of which were not in the approved list of drugs appended to the licence issued to the first appellant. The third appellant who is the Manager of the firm and was present during the search failed to disclose the source from which these drugs had been acquired. To a notice issued under section 18A of the Act calling upon the first appellant to disclose the source of acquisition of the drugs seized, the reply, signed by the third appellant on behalf of the firm, was a denial of the fact that the drugs were found in their possession and that they were seized. Samples were taken from the seized drugs which were sent to the Government Analyst and from his report it was found that one of the drugs, Sodium Bromide I.P. Batch No. 1 was sub- standard. On the aforesaid facts the Drugs Inspector filed a complaint in the court of the Judicial Magistrate, First Class (4th Court), Bangalore alleging that the appellants before us were guilty of having committed offences under sections 18(c), 18(a)(i) and 18A punishable respectively under sections 27(a)(ii), 27(b) and 28 of the Act. Another partner of the firm also figured as an accused in the complaint but as he was absconding the trial could 608 not proceed against him. As already stated the magistrate acquitted the appellants.

On the facts on record the High Court found:

(a) 33 out of the 42 items of drugs seized from the business premises of the first appellant do not figure in the approved list of drugs which forms part of the licence issued to the first appellant. These 33 items had been kept in the premises for sale without the requisite licence. This constitutes an offence under section 18(c) of the Act for which all the appellants are punishable under section 27(a) (ii).

(b) Of the samples of the drugs seized and sent to the Government Analyst, one sample of Sodium Bromide I. P. B