Delhi High Court
State Through Drugs Inspector, Delhi ... vs Sh. Hukam Chand on 21 September, 2007
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Obtaining leave under Section 378(4) Cr.P.C. 1973 to challenge the judgment and order dated 1.2.1982 passed by Sh. D.N. Kadian, Metropolitan Magistrate, Delhi, appellant urges that the impugned judgment and order dated 1.2.1982 be set aside and that the respondent be convicted under Sections 27(a)(i) and 27(b) read with Sections 18(a)(i), 18(a)(ii) and 18(a)(iia) and Rule 65(18) read with Section 18(c) of the Drugs and Cosmetics Act, 1940.
2. Appellant is the Drugs Inspector, Delhi Administration. Respondent (accused) is Hukum Chand, sole proprietor of M/s Fair Deal Chemist.
3. Briefly noted, relevant facts are that on 5.2.1978, in the presence of the respondent the Drugs Inspector, Sh. V.B. Bajpai, PW-1 collected samples of two drugs known as Analgin Tablets, Batch No. 235 purported to be manufactured by M/s HKG Pharma (Pvt.) Ltd and Prednisolone Tablets, Batch No. CP:104 purported to be manufactured by M/s Cy-per Pharma from the premises of M/s Fair Deal Chemist. Intimation in form 17 about the collection of the samples and one sealed portion of each sample was handed over to the respondent.
4. The said two drugs were stocked and exhibited for sale in the said premises. Besides the said two drugs, the firm was also found stocking and exhibiting for sale various drugs like Apidin tablets, Digene tablets etc which were marked as "C.G.H.S. Supply Not for sale".
5. After completing the formalities, one sealed portion of each sample i.e. Analgin tablets and Predinisolone tablets were sent to the Govt. Analysts, Delhi Administration, Central Indian Pharmacopiea Laboratory, Ghaziabad and Drugs Labortary, Baroda respectively for test and analysis. The memos in form 18 having the seal impression of the seal by which the samples were sealed were separately sent by registered post to the respective Govt. Analyst.
6. Both the Govt. Analysts in their reports opined that the drugs in question were sub-standard, misbranded and not of standard quality. The reports of the Govt. Analysts in respect of samples of Analgin tablets and Predinisolone tablets are Ex. PW1/H and Ex. PW1/J respectively.
7. Accordingly, the complaint under Sections 27(a)(i) and 27(b) read with Sections 18(a)(i), 18(a)(ii) and 18(a)(iia) and Rule 65(18) read with Section 18(c) of the Drugs and Cosmetics Act, 1940 was filed against the respondent. Prosecution sought conviction of the respondent on following grounds:
(i) That the respondent was stocking and exhibiting for sale misbranded drugs. [Section 18(ii)].
(ii) That the respondent was stocking and exhibiting for sale adulterated drugs. [Section 18(iia)].
(iii) That the respondent was stocking and exhibiting for sale drugs which were not of standard quality [Section 18(i)].
(iv) That the respondent was stocking and exhibiting for sale drugs which were not meant for sale [Rule 65(18)].
8. In respect of grounds (ii) and (iii), the prosecution relied upon the afore-noted reports of the govt. analysts. As per the prosecution, the said reports conclusively established that the drugs in question were adulterated and not of standard quality.
9. Per contra, stand of the respondent before the Trial Judge was that the said reports cannot be regarded as conclusive evidence against the respondent for the reason there has been a breach of provision of Rule 46 of the Drugs and Cosmetics Rules. It was contended on behalf of the respondent that the rules framed under the Drugs and Cosmetics Act, 1940 are mandatory in nature.
10. Holding that there has been non-compliance of Rule 46 of the Drugs and Cosmetics Rules by the Govt. Analysts, learned Metropolitan Magistrate has acquitted respondent of the charges framed against him under Sections 18(i) and 18(iia) read with Section 27(b) of the Drugs and Cosmetics Act, 1940.
11. Relevant part of the Rule 46 reads as under:
46. Procedure on receipt of sample - On receipt of package from an Inspector containing a sample for test or analysis, the Government Analyst shall compare the seals on the packet with the specimen impression received separately and shall note the condition of the seals on the package. After the test or analysis has been completed, he shall forthwith supply to the Inspector a report in triplicate in Form 13 of the result of the test or analysis, together with full protocols of the tests or analysis applied.
12. Rule 57 stipulates that the portion of the sample should be placed in a sealed packet. It further stipulates that the packet containing sample together with the Memorandum in form 18 should be placed in an outer cover (package) and that said package be forwarded to the Govt. Analyst. It further stipulates that copy of the memorandum in form 18 as also specimen impression of the seal used to seal the packet containing the sample should be sent separately to the Govt. Analyst. Rule 46 stipulates that Govt. Analyst shall compare the seal on the packet containing the sample with the specimen impression seal sent to him separately.
13. Requirement of comparing seal on the sample with the specimen of the seal used by the Drugs Inspector is to safeguard the interest of both prosecutor and the accused. It is a guarantee against tampering and sure guide to the government analyst that the sample before him is the same sample which the Inspector had collected from the accused.
14. Drugs and Cosmetics Act, the Rules and the Forms prescribed there under constitute on the one hand an elaborate code against contravention of Law on adulteration of drugs, on the other it provides sufficient safeguards and checks against the vexatious and wrong acts of the Drugs Inspectors. The Act lays down the rights and obligations, and the Rules channelise them. This method of check and verification is a sure guarantee against tampering. The report of the Public Analyst is of great vital importance because it virtually concludes the case against the accused one way or the other. Thus when the Act prescribes a particular mode for achieving an end, the end achieved without undergoing the prescribed modes cannot be a valid achievement and more so when it concerns the life and liberty of a citizen. The report achieved from the Govt. Analyst in violation of the rules prescribed under the Act will not be a worthy piece of evidence for the purpose of criminal prosecution.
15. Pertaining to the charge that the samples of the 2 medicines were not of standard quality, the learned M.M. has returned a finding as under:
In the present case, the Memo form 18 are Ex.PW1/F and Ex.PW1/G. The two reports of the Government Analysts are Ex.PW1/J and Ex.PW1/H. The main contention of Mr. Soni is that, as is evident from the aforesaid report, both the Govt. analyst have not compared the seals on the bottles (packets) with the specimen seals sent separately to them. They have merely compared the seals on the package and not on the packets. It is, therefore, doubtful whether the Government analysts analysed the samples of the accused or some one else.
Besides PW1 Mr. V.B. Bajpai retained with himself the seal affixed to the samples and not handed over to independent public witness hence, there remained no guarantee that the seals affixed to the samples that were sent to the Govt. Analysts remained intact and those samples were in the same condition as they were when they were taken in the presence of the accused persons. Moreover, PW-2 Har Lal, PW 6 Dr. P.N. Ahuja and P.W. 8 Asa Nand cannot be treated as independent witnesses of this case as they are interested in one way or the other as they have not been prosecuted by the Drug Inspector although they were found stocking or exhibiting for sale the same very drug for which the accused has been prosecuted.
19. The learned defense counsel also argued that Rules 46 and 57 are in pari materia with the Rule 7 and 17 of the Prevention of Food Adulteration Act. He cited an authority 1976 Crl. L. J. 421 and tried to show that unless all necessary steps required under the concerned rule for performing an official act were proved to have duly taken, no legal presumption can be drawn under illustration (e) to Section 114 of the Indian Evidence Act 1872. He also produced AIR 1969 S.C. 395 wherein their Lordship of the Supreme Court have held that where law requires particular thing to be done in certain manner, then it must be done in that manner or not at all. So other modes of compliance are excluded. Besides, the Government analyst in this case have not been called in the witness box by the prosecution and valuable right of the accused to cross-examine them has been defeated. If the Govt. analysts have been called and examined in the court, he would have explained the correct position of the seals on the packages and packets as raised by the defense.
There is considerable force in the aforesaid contention of Mr.Soni. In view of the matter, the reports of Govt. Analysts cannot be taken as conclusive piece of evidence as in this case in as much as reports of Govt. Analyst Ex.PW1/J and Ex.PW1/H do not specify whether the Govt. Analysts had compared the seals on the sample bottles (packets) with the specimen seal impression in form 18, sent to them separately. So, it cannot be said with certainty whether the samples analysed by them were the very same sample which had been collected from the accused. There is, therefore, non-compliance of the mandatory Rules 46 by the Govt. analysts. So, the charge of the prosecution that drug was adulterated and not of standard quality has not been proved against the accused beyond all reasonable doubt and the benefit of doubt of the same must be given to the accused. Hence, charge under IInd and IIIrd head fails. The accused is therefore, acquitted of the charge under IInd and IIIrd head.
16. I find no infirmity in the view taken by the learned Metropolitan Magistrate on said aspect of the matter.
17. In so far as charge of misbranding of drugs in question is concerned, the prosecution relied upon the testimonies of Sh. S.M. Garg and Sh. Y.S. Bhargava. Sh. S.M. Garg, PW-9 is the Joint Managing Director of M/s R.K.G. Pharma Pvt. Ltd. and Sh. Y.S. Bhargava, PW-10 is the proprietor of Cy-per Pharma. Both the witnesses deposed that the drugs/tablets seized from the shop of the respondent were manufactured by their companies.
18. In his statement under Section 313 Cr.P.C., respondent stated that he had purchased the said drugs from one Hayath Singh in good faith for value. To establish the same, he produced a receipt, mark 'A'.
19. It is pertinent to note that the respondent had disclosed the name of Hayath Singh to the Drugs Inspector at the time of the inspection of premises of his shop and similar drugs were recovered from Hayath Singh when his premises were raided at the instance of the respondent. It is further relevant to note that Hayath Singh was prosecuted separately and was convicted and respondent had testified against Hayath Singh in the said prosecution.
20. Learned Metropolitan Magistrate has opined and in my opinion rightly so, that the respondent was unaware and could not with reasonable diligence discover that the drugs in question were misbranded or in any way contravened the provisions of Section 18 of the Drugs and Cosmetics Act, 1940. Learned Metropolitan Magistrate has rightly held that case of the respondent was covered under the Section 19(3) of the Act.
21. In respect of ground (iv), holding that the respondent was stocking and exhibiting for sale drugs which were not meant for sale, the learned Metropolitan Magistrate has convicted the respondent under Rule 65(18) read with Section 18(c) of the Drugs and Cosmetics Act, 1940 and sentenced him to pay a fine in sum of Rs. 1,000/-.
22. Considering the nature of the offence, punishment awarded by the learned Metropolitan Magistrate is reasonable.
23. Noting the broad features of the case of the prosecution, the evidence led and the reasons for the finding by the learned Metropolitan Magistrate, I find no merit in the appeal.
24. The same is dismissed.
25. Personal bond and surety bond furnished by the respondent are discharged.
26. LCR be returned.