Bangalore District Court
The Drugs Inspector vs Renukumar on 20 April, 2018
1 CC.No.88-11
BEFORE THE SPECIAL COURT FOR ECONOMIC
OFFENCES AT: BANGALORE.
Dated this the 20th day April 2018.
: Present:
Sri. SHANTHANNA ALVA M., B.A., LL.B.,
Presiding Officer, Special Court
for Economic Offences, Bangalore.
CC.No.88-2011
Complainant: The Drugs Inspector, Bangalore Circle-3
(I/c), Drugs Control Department, Bangalore.
(By In Charge Sr. A.P.P.)
.Vs.
Accused: 1. Renukumar, Proprietor,
M/s. Caretech Pharmaceuticals,
No.63/3, Devegowda Layout,
P & T Road, Srigandakaval,
Bangalore.
Office Address:
M/s. Caretech Pharmaceuticals,
No.214, 1st Cross, 9th Main Road,
4th Block Opp. To Water Tank,
Nandini Layout, Bangalore.
2. S.E. Ramegwoda, Person In charge,
M/s. Caretech Pharmaceuticals,
No.63/3, Devegowda Layout,
P & T Road, Srigandakaval,
Bangalore.
(By A.1 & A.2 Sri. G. Desu Reddy. Adv.,)
2 CC.No.88-11
JUDGMENT
1. The complainant/the State at the instance of Drugs Inspector, Bangalore Circle-3 (I/c.), Drugs Control Department, Bangalore, filed the complaint u/s. 200 of Cr.P.C. alleging that the accused persons have committed the offences u/s.18(a)(i), R/w. Sec.17B(e), Sec.18(a)(i) and 18(c) which are punishable u/s. 27(©), 27(d) and 27(b)(ii) of the Drugs & Cosmetics Act, 1940 and Rules. (Herein after referred as the "Act".)
2. The complainant's case in brief is that C.w.2 is the Drug Inspector and was serving as Drug Inspector, Blood Bank and Intelligence Wing, Bangalore. Accused No.1 is the Proprietor of M/s. Caretech Pharmaceuticals, situated at No.63/3, Devegowda Layout, P & T Road, Srigandakaval, Bangalore-91. Accused No.2 is the person in charge of manufacture of drugs and he is responsible for the manufacture of the drugs by the said firm. C.w.2 received a information that accused No.1 was indulging in the manufacturing of Veterinary drugs for 3 CC.No.88-11 sale at M/s. Caretech Pharmaceuticals, situated at Srigandakaval, Bangalore-91, without possessing valid licence under the provisions of Act and Rules there under. Thus, on 14.08.2007 C.w.2 along with other drugs Inspectors i.e., C.w.4 to 9 and pancha witnesses visited the premises of M/s. Caretech Pharmaceuticals and there found stocks of veterinary drugs namely, Myciprol, pack size 100gms, Myciprol pack size 250 gms and Enro-10, 500ml, which are purported to be manufactured by M/s. Caretech Pharmaceuticals and labeled as manufactured by M/s. Caretech Pharmaceuticals, Peenya Industrial Area, Bangalore-58. The firm had no licence required to manufacture veterinary drugs for sale. They also found stock of raw materials namely Ciprofloxacin and Enrofloxacin IP, packing materials including various products. Out of the stocked drugs, C.w.2 had takes the legal samples of Enro-10, Myciprol Ciprofloxacin, Enrofloxacin I.P., B.No.EN0678 and Ciprofloxacin, B. No. Nil, under Form No.17 and 17A. 4 CC.No.88-11 C.w.2 seized remaining stocks of the above referred drugs, raw materials and packing materials under Form No.16 and panchanama. C.w.2 recorded the statement of accused No.2 and wherein, he admitted about the manufacturing of the drugs and selling the same to various parties. Accused No.2 stated that the sales invoices were prepared and issued in the name and addresses as M/s. Caretech Pharmaceuticals, Nandini Layout, Bangalore-96 and it obtained the loan licence valid up to 27.02.2010, C/o. M/s. Karnataka Antibiotics and Pharmaceuticals Limited, situated at No.14, 2nd Phase, Peenya Industrial Area, Bangalore-58. The sales invoices and other documents were kept in the premises situated at M/s. Caretech Pharmaceuticals, Nandini Layout, Bangalore-96. Then C.w.2 had sent the legal samples for test and analysis to the Government Analyst under Form No.18. C.w.10 who was in charge of M/s. Karnataka Antibiotics and Pharmaceuticals Limited., informed that M/s. Caretech Pharmaceuticals had not 5 CC.No.88-11 given the order to manufacture any products at M/s. KAPL, Bangalore-58. C.w.10 stated that they have not manufactured the drug i.e., "ENRO-10", B.No.005 and drug Ciprofloxacin Water soluble Feed Supplement, "MYCIPROL". C.w.2 received the test report in Form No.13 to the effect that sample of Ciprofloxacin is "Not of Standard Quality" as it does not confirm to the label claim with respect to the identification test for Ciprofloxacin and Chloride. The drug "MYCIPROL", Ciprofloxacin was declared a "Not of Standard Quality" with respect to Assay for Ciprofloxacin, i.e., it contains only 60.5% of label claim of Ciprofloxacin. C.w.2 handed to the original test report to the accused No.1. On 14.08.2007 C.w.14 the then Drugs Inspector, Bangalore Circle-4 along with other drugs Inspectors and two panch witnesses visited M/s. Caretech Pharmaceuticals, Nandini Layout, Bangalore-96. Accused No.1 was there, he produced sales invoices of the manufactured products and purchase documents relating of the raw materials and 6 CC.No.88-11 they were seized under Form No.16. Accused No.1 had given the statement and furnished the licence and other documents. C.w.3 along with other drugs Inspectors visited M/s. Mundra Enterprises, M/s. Harshad Enterprises, M/s. Venkateshwara Agency, M/s. Lotus Enterprises and M/s. Vangili Feeds and collected the documents for having purchased drugs from M/s. Caretech Pharmaceuticals. Accused No.1 in the reply given to the notice dated:12.05.2008 and admitted the manufacturing of drugs without licence. The investigation revealed that the drugs in Sl.No.1 to 4 seized from the premises of M/s. Caretech Pharmaceuticals are the drugs within the meaning of Sec. 3 (b) of the Act. The said drugs are "spurious drugs" as they are not the true products manufactured by M/s. Caretech Pharmaceuticals, Peenya Industrial Area, Bangalore-58. Thus, the accused persons committed the offence punishable u/s. 27(©), 27(d) and 27(b)(ii) of the Act and hence, the complaint.
7 CC.No.88-11
3. On filing of the complaint, cognizance was taken and registered the case against accused No.1 and 2 for the offences punishable u/s. 27©, 27(d) and 27(b)(ii) of the Drugs & Cosmetics Act, 1940 and Rules, 1945.
4. The accused No.1 and 2 appeared through their respective counsels and got enlarged on bail. Copies of the complaint and other documents were furnished to them. Then evidence before charge was recorded as required u/s. 244 of Cr.P.C., and then on hearing the learned Sr. APP & accused, the charge was framed against accused persons for the offences punishable u/s. 27©, 27(d) and 27(b)(ii) of the Drugs & Cosmetics Act, 1940 and Rules, 1945 and read over to them. Accused persons pleaded not guilty and claimed to be tried.
5. To prove the charge leveled against the accused persons, the complainant examined 20 witnesses as P.w.1 to 20 and got marked the documents Ex.p.1 to 191 & Mos.1 to 21.
8 CC.No.88-11
6. After closure of complainant's side evidence, the statements of accused persons were recorded as provided u/s.313 of Cr.P.C. The accused persons denied incriminatory evidence framed against them. The accused persons not chosen to lead either oral or documentary evidence.
7. Heard the arguments of the learned counsels. The points that arise for my consideration are :
Point No.1: Whether the accused persons have proved that C.w.2 had no jurisdiction to inspect and investigate the case had no authority?
Point No.2: Whether the sanction from the competent authority is mandatory for initiation of criminal case for the offence said to have committed by the accused persons? Point No.3: Whether the complainant has proved that ENRO-10, 500ml, MYCIPROL pack size 100gms and MYCIPROL pack size 250gms are spurious drug and by manufacturing stocking and selling them above said drug and thereby the accused persons committed the offence punishable u/s.27© of the Act.?
Point No.4: Whether the complainant has proved that MYCIPROL pack size 100gms and MYCIPROL pack size 250gms are "Not of Standard Quality Drug" coming within the meaning of Sec.18(a)(i) of the Act and accused persons sold them and it resulted in 9 CC.No.88-11 commission of punishable u/s.27(d) of the Drugs & Cosmetics Act, 1940?
Point No.5: Whether the complainant has proved that the accused No.1 manufactured and stocked the drugs for sale at accused No.1 firm without possessing valid licence and that resulted in commission of offence punishable u/s.27 (b)(ii) of the Act.?
Point No.6: The complainant has proved that accused No.1 and 2 were in charge and responsible for the day to day furnishing of M/s. Caretech Pharmaceuticals.?
Point No.7: What order?
8. My findings on the above said points are as under:
Point No.1: In the Negative, Point No.2: In the Negative, Point No.3: In the Affirmative, Point No.4: In the Affirmative, Point No.5: In the Negative, Point No.6: Partly in Affirmative, Point No.7: As per the Final order for the following:
REASONS
9. Point No.1: The complaint was filed alleging that accused persons committed the offence punishable 10 CC.No.88-11 u/s.27©, 27(d) and 27(b) (ii) of the Drugs & Cosmetic Act, 1940. Sec. 21 of the Drugs & Cosmetic Act, 1940 says that the Government by issuing the notification has to appoint the Drug Inspector. The learned counsel of the accused relied upon the rulings rendered by the Hon'ble Andhra Pradesh High Court in the case of M/s. Gaba Pharmaceuticals, Hyderabad and another Vs. State of A.P., reported in 2007 Drugs Cases (DC) 3, wherein it is held that "compliance of Sec.21 of the Drugs & Cosmetic Act, 1940 is mandatory". In the case of State of Maharashtra Vs. R.A. Chandawarkar and others, reported in 1999 Drugs Cases 94, the same ratio has been laid down. Our Hon'ble High Court in the case of Sri. S .A. Kishore Vs. State by Drug Inspector, reported in 2013(2) Drugs Cases (DC) 249, quashed the proceedings on the ground that the Drug Inspector was not authorized to investigate and file the complaint.
10. Sec. 21 of the Drugs & Cosmetic Act, 1940 and the rulings referred above makes clear that the Central 11 CC.No.88-11 Government or the State Government has to appoint the competent person as Drug Inspector by publishing the same in the Official Gazette and such person is only competent to investigate the matter relating the contravention of the provisions of the of the Drugs & Cosmetic Act, 1940. In this case, the complainant has produced the Gazette Notification for having appointed the C.W.2 as Inspectors and also the order of transfer.
11. The learned counsel for the accused No.2 relied upon a ruling rendered by our Hon'ble High Court in the case of S.A. Kishore Vs. The State by Drug Inspector, reported in 2013 (2) Drugs Cases, 249, wherein it is held that "Sec.21 of the D.C. Act, enables an inspector, appointed under the notification published in the official gazette, to act as a public servant and therefore, compliance with the procedure as to the need for such notification being published in the Official Gazette, is a must, for otherwise, he may no be deemed a gazetted officer and could not be considered as a public servant - 12 CC.No.88-11 in view of the admitted circumstance that the petitioner's appointment was not duly gazetted as on the date of the inspection or as on the date he filed the case before the court, was certainly not authorized in the eye of law and hence, the proceedings would have to be set at naught." Here, the notifications produced by the complainant discloses that the drugs inspectors were appointed in the Year-2003 and only for the reason that notification was issued later, it cannot be held that they had no authority to investigate the matter. On publication in the gazette notification, the appointment gets commenced from the date of appointment. In the ruling referred above, the notification was not at all produced, hence it was held so. In this case notification was produced. This being the case, the contention of the accused person that C.w. 2 had no authority to investigate the matter and file the complaint cannot be accepted. Accordingly, this point is answered in negative.
13 CC.No.88-11
12. Point No.2: The criminal case was launched against the accused persons on the allegation that accused committed the offences which fall under Chapter-IV of the Drugs & Cosmetic Act, 1940. The complainant obtained the sanction and then lodged the complaint. The accused taken up the contention that sanction lacks required ingredients, hence it is not valid. In response to that, the complaint taken up the contention that sanction itself is not required. The learned counsel for the accused and Sr. A.PP addressed their argument and relied upon the citations, which will be referred in the course of discussion.
13. Perusal of the produced sanction discloses that it lacks basic requirement and it cannot be considered as valid sanction. The learned counsel of the accused relied upon the rulings in this regard and there is no need referring to those rulings in detail. If it is held that sanction is mandatory, then case itself is not maintainable, so the first question required to be 14 CC.No.88-11 considered is whether sanction is mandatory. Chapter-IV of the Drugs & Cosmetic Act, 1940 deals with the aspect of manufacture, sale and distribution of drugs and cosmetics. Sec. 32 of the said Act deals with taking of cognizance and by referring that learned Sr. APP argued that in the said provision, it is no where stated that sanction is acquired to initiate the criminal proceedings. The sanction is mandatory only if the criminal case is to be initiated under Chapter- VIA of the Drugs & Cosmetic Act, 1940. In Sec. 32 it is not stated that sanction is required to launch the criminal proceedings. Sec. 33 (m) in Chapter-IV-A which deals with taking cognizance of offences relating of Ayurvedic. Siddha and Unani drugs says that "no prosecution under this chapter shall be instituted except by on inspection with provisions of sanction of the authority specified under Sub-section.(4) of Sec.33G."
14. The learned Sr. APP. relied upon the ruling of the Allahabad High Court in case of Sardar Jas Karan 15 CC.No.88-11 Singh vs. State of U.P., reported in 1974 Cri.L.J. 728 wherein it is held that "prior sanction from the Controlling Authority for instituting the prosecution is not necessary. It is held that while Sec.32 does provide that the prosecution for an offence under the Act must be initiated by an inspector and not otherwise. It does not provide that the court shall not take cognizance of an offence even when a complainant had been filed by an inspector unless the prosecution has been sanctioned by some authority prescribed either by the Act or by the Rule framed there under. The Hon'ble Andhra Pradesh High Court in the case of Fizikem Laboratories Pvt., Ltd., Vs. the Drugs Inspector reported in 2006 Cri. L. J. 3090 quashed the proceedings initiated under the provisions of Drugs & Cosmetic Act, 1940 on the ground that complaint is filed without sanction, hence not maintainable. The respondents therein challenged the said finding before the Hon'ble Apex court and it held that finding of the Hon'ble High Court that only inspector 16 CC.No.88-11 authorized under Chapter-IV-A could have launched the prosecution in a case where the inspector launch the prosecution u/s. 27 of Act authorized under Chapter-IV for sale of Adulterated, Spurious or misbranded Ayruvedic drugs is wrong (reported in (2008) 4 S.C.C
784).
15. The learned counsel for the accused argued that in umpteen numbers of cases Our Hon'ble Court and also other High Court have consistently held that sanction is required. It is argued that the ruling rendered in Sardar Jas Karan Singh is dealt with in other rulings and distinction is made. The learned counsel relied upon the ruling rendered by the Hon'ble Punjab & Haryana High Court reported in 2011(2) Drugs Cases (DC) 36, in case of Gursewak Dass & others Vs. State of Haryana and others, wherein it is held that "Sec.33-M - cognizance of offence - the complaint has been filed without obtaining previous sanction of the competent authority - then accused is entitled for acquittal." Our 17 CC.No.88-11 Hon'ble High Court in case of the State of Karnataka Vs. M/s. Tejpal & Company (Karnataka) in Crl. A. No.1569/2004 wherein it is held that " in the absence of prior sanction, there cannot be any prosecution. In the case of State of Madhya Pradesh Vs. Anil Soni reported in 2015(1) Drugs Cases (DC) 154 & in case of Adhiyaman & another Vs. The State reported in 2016(1) Drugs Cases (DC) 477, similar finding is given. In the case of Dr. Om Prakash Singh and another vs. State reported in 2003 Drugs Cases 293 it is held that previous sanction is necessary.
16. Here, the criminal case was launched under Chapter-IV of the Drugs & Cosmetic Act, 1940 and not u/s. IV-A of the said Act. Sec. 32(m), which mandates sanction, comes in to picture only if the criminal case is launched under Chapter IV-A of the said Act. In the rulings relied by the learned counsel for the accused, by referring the Sec.32 (m) of the Act, it has been held that sanction is mandatory. Hon'ble Apex Court in the ruling 18 CC.No.88-11 reported in (2008) 4 SCC 784 held that sanction is required only if the proceedings and contention of the counsel that sanction is mandatory is not acceptable.
17. In all the rulings relied by the learned counsel for the accused by referring to Sec.33 (M) of the Drugs & Cosmetic Act, 1940, it has been held that sanction is mandatory. The case on hand is filed under Chapter-IV of the Drugs & Cosmetic Act, 1940 and in none of the ruling it has been laid down that sanction is required for initiating the proceedings under section 32 of Drugs & Cosmetics Act and what required is only the permission to file the complaint as stated in rule 51 of the Drugs and Cosmetics Rules. The Hon'ble Apex Court held that sanction is not required for initiation of proceedings of the offences u/s.18 (a)(b) and in Sec.18(c) punishable u/s.27
(b)(ii) of the Drugs & Cosmetic Act, 1940. Thus, the contention of the accused persons proper sanction is required to initiate the proceedings alleged against them 19 CC.No.88-11 is not sustainable. Accordingly, this point No.2 is answered in negative.
18. Points No.3 & 5: These points are taken up together for discussion to avoid the repetition of discussion both on law and facts.
19. Accused No.1 is the Proprietor of M/s. Caretech Pharmaceuticals, situated at Srigandakaval, Bangalore- 91 and its office is located at Nandini Layout, Bangalore-
96. It is averred that the accused No.2 was in charge of M/s. Caretech Pharmaceuticals, Bangalore. The complainant's case is that on 14/08.2007 C.W.2 inspected the premises of M/s. Caretech Pharmaceuticals and found the stock of Veterinary drugs namely, ENRO-10, 500ml, MYCIPROL pack size 100gms and MYCIPROL pack size 250gms, with a label that they were manufactured by M/s. Caretech Pharmaceuticals, Peenya Industrial Are, Bangalore-58 and Enrofloxacin I.P., and Ciprofloxacin HCL I.P. 20 CC.No.88-11
20. C.w.2- Mr. Anna Rao Naik, examined as P.w.5 deposed about the inspection, drawing of legal samples and seizure of the above referred drugs and got exhibited the Form No.17 and 17A as Ex.p.137 and 138. The drawn samples are marked as Mos.2 to 6. The Form No.16 and the mahazar are marked as Ex.p.139 and
141. The statement given by accused No.1 was marked as Ex.p.140. The drugs seized under Form No.16 were identified and marked as Mos.7 to 21. C.w.4- Smt.Yashoda S.V., the then Drug Inspector, Bangalore Circle-3 and C.w.5-Smt.Mamatha V., the then Drug Inspector at Head quarters, Bangalore examined as P.w.3 and 4 deposed that they accompanied C.w.2- Sri.Anna Rao K. Naik to the premises of M/s. Caretech Pharmaceuticals and there C.w.2 seized the drugs, drawn the legal samples. C.w.8-Sri.R.Lokeshwara examined as P.w.18 deposed that in his presence the premises of M/s. Caretech Pharmaceuticals was inspected and the Drug Inspector have seized the drugs, 21 CC.No.88-11 the documents and drawn the legal samples. While cross examining the witnesses the inspection, seizure and drawing of legal sample are not seriously disputed.
21. According to the complainant based on the statement given by the accused No.2, C.w.3-Sri.Lingaraj C., the then Drug Inspector of Blood Bank and Intelligence Wing, Bangalore along with other Drug Inspectors and pancha witnesses visited M/s. Caretech Pharmaceuticals, situated at Nandini Layout, Bangalore-
96. On enquiry, accused No.1 informed that the drugs were manufactured at the premises of M/s. Caretech Pharmaceuticals, Srigandakaval, Bangalore-91. C.w.3 seized the documents such sale invoices, purchase documents, bank statements, labels and other documents under Form No.16 and panchanama.
22. C.w.3-Sri.Lingaraj C., examined as P.w.2 deposed that he along with pancha witnesses visited M/s. Caretech Pharmaceuticals at Nandini Layout, Bangalore-96 and on enquiry found that the drugs being 22 CC.No.88-11 manufactured there, without licence. He seized the documents under Form No.16 which includes labels, empty containers and recorded the statements of accused No.1. The panchanama, Form No.16, the seized invoices, account statements are marked as Ex.p.11 to
72. The statements of accused No.1 is marked as Ex.p.73. The covering letter, list of drugs, in Form No.25A, copy of the sale deed and the other documents relating of the constitution of M/s. Caretech Pharmaceuticals are marked as Ex.p.74 to 85. C.w.18- Sri. R. Lokeshwara examined as P.w.18 deposed that in his presence the Drug Inspector inspected the premises of M/s. Caretech Pharmaceuticals, situated at Nandini Layout and seized the documents and empty container.
23. The drugs said to have been seized from the premises of M/s. Caretech Pharmaceuticals are animal antibiotic food supplement and it falls under the category of drugs defined under Sec.3 (b)(i) of the Act. The document are marked as Ex.p.14 discloses that accused 23 CC.No.88-11 No.1 obtained the loan licence in Form No.25 to manufacture the drugs mentioned in the list marked as Ex.p.75 at the premises situated at No.14, 2nd Phase, Peenya, Industrial Area, Bangalore-58, C/o. M/s. Karnataka Antibiotics and Pharmaceuticals Ltd., under the director and suppression of the competent approved expert staff of M/s. Karnataka Antibiotics and Pharmaceuticals.
24. The registration of certificate issued by the department of Labour, Commercial Tax Department, licence issued by the Central Sales Tax Registration and sale department licence issued by the Corporation are marked as Ex.p.82 to 85 disclose that accused No.1 obtained the licence to manufacture the veterinary supplements at the premises of M/s. Caretech Pharmaceuticals at Srigandakaval. The oral evidence coupled with documentary evidence disclosed that on 14.08.2007 C.w.2 conducted the raid in the above said premises and found the stock of finished product named 24 CC.No.88-11 as Enro-10, Myciprol, raw materials such Enrofloxacin. Ciprofloxacin and labels of Enro-10 and Myciprol without coding. There is absolutely no evidence to the effect that the accused got manufactured the finished products at No.14, 2nd Phase, Peenya Industrial Area, Bangalore - 560058 through M/s. Karnataka Antibiotics and Pharmaceuticals.
25. Ex.p.140 is the statement given by the accused No.1 and wherein, he admitted that the products were manufactured in the premises at Srigandakaval, Bangalore. Ex.p.73 is the written letter submitted by Accused No.1 and wherein, the accused No.1 admitted that the products were manufactured in the factory premises without licence. Accused No.1 and 2 have not retracted from those statements and nowhere contended that the products were manufactured at the premises mentioned in their labels through M/s. Karnataka Antibiotics and pharmaceuticals. Ex,P.142 is the sketch and wherein the manufacturing area and other places are 25 CC.No.88-11 shown. The learned counsel of the accused relied upon the ruling rendered by the Hon'ble Madras High Court, in the case of State vs. Anuradha Ramnath, reported in LAWS (MAD.)-2002-3-113, wherein, it is held that "merely on the basis of confession statement, it cannot be said that the offence alleged against the accused is proved." In that case, the statement was subsequently retracted, but in this case, accused No.1 and 2 have not retracted from their statements. As stated above, while cross examining P.w.2 and 5, the seizure and taking of sample and recording of statements are not denied.
26. Ex.p.149 is the letter dated: 23.08.2007 given by the General Manager of Karnataka Antibiotics and Pharmaceuticals Ltd., in response to the enquiry made by C.w.2 regarding drugs manufactured and supplied to M/s. Caretech Pharmaceuticals, wherein, it is stated that M/s. Caretech Pharmaceuticals not given any order to manufacture any products. Ex.p.150 is the letter given by the Chief General Manager and wherein, also the same 26 CC.No.88-11 thing is reiterated. C.w.10-Sri.Baravani, the then Chief Manager who issued the above referred documents examined as P.w.7 deposed inconsonance with the contents of letters. While cross examining P.w.10, it was suggested that M/s. Caretech Pharmaceuticals had the licence to manufacture the seized drugs. It is no where contended that the drugs were manufactured at M/s. Karnataka Antibiotics and Pharmaceuticals Ltd.,
27. The document is marked as Ex.p.75 discloses that M/s. Caretech Pharmaceuticals had no licence to manufacture Enro-10. Ex.p.88 is the letter dated:
24.08.2007 issued by the Mundra Enterprises. Ex.p.177 to 184 are the copies of the invoices. These documents are discloses that M/s. Caretech Pharmaceuticals purchased the Enrofloxacin. C.w.19-Sri.Sushil Kumar, one of the Partner of Mundra Enterprises, examined as P.w.11 deposed about the issuance of the documents referred above. Ex.p.90 is the statement of Proprietor of Harshad Enterprises. Ex.p.91 to 94 are the invoices. 27 CC.No.88-11
These documents are discloses that M/s. Caretech Pharmaceuticals have purchased Ciprofloxacin from Harshad Enterprises.
28. Ex.p.24 is the bill issued by M/s. Caretech Pharmaceuticals. Ex.p.86 is the statement and the licence particulars of Lotus Enterprises. These documents are complied with the evidence of the partner of Lotus Enterprises. P.w.19-Sri.Amanuddin discloses that M/s. Caretech Pharmaceuticals sold the Myciprol and other drugs to Lotus Enterprises. The bill is marked as Ex.p.101 and the document is marked as Ex.p.185 complied with the evidence of the partner of M/s. Vangili Feeds. P.w.20-Sri.Subramaniam discloses that M/s. Caretech Pharmaceuticals sold Enro-10 to the said firm. The documents are marked as Ex.p.13 to 55, 19 and 98 to 101 discloses that M/s. Caretech Pharmaceuticals purchased the raw materials and sold the finished products to various agencies.
28 CC.No.88-11
29. There would not be any dispute over the fact that the Enro-10 and Myciprol are the drugs coming within the concept of drugs defined u/s.3 (b) of the Act. Learned In charge Sr. A.P.P., argued that the above raw materials is Schedule-H drug and it comes under the definition of drugs. The evidence on record established beyond reasonable doubt that M/s. Caretech Pharmaceuticals manufactured Enro-10 and Myciprol in its premises i.e., Srigandakaval, Bangalore-91 and stocked the raw materials such as Enrofloxacin I.P., and Ciprofloxacin HCL I.P. M/s. Caretech Pharmaceuticals had no licence to manufacture the above said drugs at their premises at Srigandakaval, Bangalore-91. Sec.18© of the Act prohibits manufacture for sale or for distribution or sell, or stock or exhibit, or offer for sale, or distribute any drug except under, and in accordance with the conditions of, a licence issued for such purposes under the Chapter of the Act. The manufacture of drugs for sale in the premises not mentioned in the licence and manufacturing 29 CC.No.88-11 of drugs for which licence is not obtained amounts to commission of offence punishable u/s. 27(b)(ii) of the Act.
30. The complainant contended that the manufacturing the drugs in the unlicenced premises and labeling them as manufactured in the licenced premises amounts to manufacturing of drugs i.e., "spurious drugs". The learned counsel of the accused argued that such labeling not amounts to manufacturing of spurious drugs. A drug is deemed to be spurious, if it is manufactured under a name which belongs to another drug, if it is an imitation of another drug or if it has been satisfied wholly or partly by another drug or if it wrongly claims to be the categories of product of another manufacturer. Sec.17B of the Act is defines the spurious drugs and its varieties.
31. The complainant's case is that the seized drug comes within the purview of Sec.17B (e) of the Act. A drugs falls under the definition of Sec.17B (e) of the Act, if it purports to be the product of a manufacturer of whom it is not truly a product. Here, the case of the complainant 30 CC.No.88-11 that M/s. Caretech Pharmaceuticals manufactured the Myciprol and Enro-10 in a unlicensed premises and in the label mentioned that they being manufactured in licenced premises. The complainant has proved this aspect, but, that not amounts to manufacturing of product of another manufacturer. Here, in the label, it is shown as the product of M/s. Caretech Pharmaceuticals and not as product of another manufacturer. Thus, the court is of the considered view that the ingredients required to constitute the offence u/s.17B (e) of the Act is made out. Thus, the contention of the complainant that M/s. Caretech Pharmaceuticals committed the offence u/s.27
(b)(ii) of the Act is not acceptable. Accordingly, Point No.3 is answered in affirmative and Point No.5 is answered in Negative.
32. Point No.4: The complainant's case is that M/s. Caretech Pharmaceuticals manufactured "Not of Standard Quality" drugs namely Myciprol pack size 250gms, B.No.1048, D/M:08/2007, D/E:02/2009 as it 31 CC.No.88-11 contains only 60.5% label claim of Ciprofloxacin HCL and Myciprol pack size 100gms, B.No.1048, D/M:08/2007, D/E:02/2009 as it contains "Nil" content of Ciprofloxacin. Ex.p.137 is the Form No.17 and Ex.p.138 is the From No.17A and these documents are discloses that C.w.2 had taken the legal samples of Enro-10, Myciprol-100 and 250mg, Enrofloxacin and Ciprofloxacin. The documents are marked as Ex.p.143 to 147 discloses that C.w.2 had sent one portion of the legal samples to the Government Analyst. Ex.p.161 is the report in Form No.13 dated:14.09.2007and wherein, it is stated that the sample of Myciprol (Ciprofloxacin Powder) 10% w/s has been declared as "Not of Standard Quality" as it does not conform to the label claim with respect to the identification test for Ciprofloxacin and chloride. Ex.p.162 is the test report in From No.13 dated: 22.10.2007 and wherein, it is stated that Myciprol10%, B.No.1048 has been declared as "Not of Standard Quality" with respect to assay for Ciprofloxacin.
32 CC.No.88-11
33. The documents are marked as Ex.p.163 and 164 discloses that in compliance of Sec. 25(2) of the Act handed over the test report to Accused No.1. C.w.2 examined as P.w.7 in line deposed in this regard and that evidence remained unchallenged. M/s. Caretech Pharmaceuticals not chosen to analyze the samples at Central Drug Laboratory. C.w.24-Sri.Gopal S. Magadum, the Scientific Officer and Government Analyst, Bangalore examined as P.w.14 deposed about the analysis of the above said sample and given reports are marked as Ex.p.161 and 191.
34. The oral and documentary evidence referred above discloses that C.w.2 drawn the legal samples of the drugs and sent them for analysis. The evidence also the Drugs Inspectors complied the requirement envisaged u/s25 (2) of the Act. Sec.25(3) of the Act says that "any document purporting to be a report signed by a Government Analyst under the Chapter shall be evidence of the facts stated therein, and such evidence shall be 33 CC.No.88-11 conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under Sec.18-A has within twenty eight days of the receipt of a copy of the report, notified in writing the Inspector or the court before which may proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report."
35. The learned counsel of the accused argued that the notification for having appointed C.w. 24 as Government Analyst is not produced. The accused not contended that C.w.24 is not the Government Analyst. Only for the reason that the notification is not produced, it cannot be held that C.w.24 was not appointed as Government Analyst. The learned counsel further argued that the records of analysis are not produced and on the basis of test report only, it cannot be held that the seized drug is "Not of Standard Quality". In support of this line of argument, the learned counsel relied upon the ruling 34 CC.No.88-11 rendered by the Hon'ble Mumbai High Court, in the case of State of Maharashtra Vs. R.A. Chandawarkar and others, reported in 1999 Drugs Cases 94. In the said ruling by relying on the ruling of the Hon'ble Supreme Court, in the case of T. A. Krishnaswamhy Vs. State of Madras, reported in AIR 1966 SC 1022, wherein it is held that "in view of subsequent amendment to Rule.46 of the Drugs and Cosmetics Rules, 1945 with effect from 21.07.1962, the analyst report is not required to state the protocols only to given the results of the analysis and it was held that the said report was admissible in evidence." Our Hon'ble High Court in the case of The State Of Karnataka Vs Vikram Chemical Laboratories reported in 1975 Cr.L.J 332 held that "there is no need furnishing protocol test particulars." Thus, the contention of the accused that the test report is marked as Ex.p.161 and 191 are incomplete reports cannot be accepted.
35 CC.No.88-11
36. The test report of the Government Analysis becomes conclusive evidence if the mandatory provision is complied with. Sec.25 of the Act says that on receipt of the report, the Drug Inspector has to give the copy of the Analyst Report to the person whose name is disclosed under Section.18A of the Act. The report of the Government Analyst become conclusive evidence of the facts stated therein. The conclusive nature of the Government Analyst report gets lost if the person from whom the sample is drawn or a person from whom sample is drawn or a person whose name is disclosed under Section.18A of the Act informs to the inspection within 28 days of the receipt of the report that he intends to adduced evidence in contravention of the Government analyst report.
37. In this case, the accused No.1 and 2 have not availed the option provided for them to challenge the report of the Government Analysis. The Hon'ble Apex Court, in the case of State of Haryana Vs. Brijal Mittal 36 CC.No.88-11 and others, reported in 1998 Dugs Cases 11, wherein, it is held that "the right to get the sample tested by the Central Drugs Laboratory gets extinguished and the report of the Government analysis become conclusive evidence of facts stated therein if the person from whom sample is drawn or a person whose name is disclosed under Sec.18A of the Act fails to notify the inspector intention to adduce evidence in contravention of the report within 28 days of the receipt of the report." Thus, the contention of the accused that the report given by the Government Analysis is wrong cannot be accepted. M/s. Caretech Pharmaceutical by manufacturing and selling the same committed the offence u/s. 18(a)(i) which is punishable u/s.27(d) of the Act. Consequently, this point is answered in affirmative.
38. Point No.6: Accused No.1 is the Proprietor of M/s. Caretech Pharmaceutical and Accused No.2 is the Manger of M/s. Caretech Pharmaceutical. The learned counsel of the accused argued that there must be 37 CC.No.88-11 pleading and evidence in this regard and in support of this contention relied upon the rulings rendered in the case of Ashok Kumar Tyagi Vs. State of H.P., reported in 2015 (1) Drugs Cases (DC) 185. The Hon'ble Madhya Pradesh High Court, in the case of Venkateshwaran Narayanan Ayyar vs. State of M.P., reported in 2006 Drugs Cases (DC) 532. The Hon'ble Supreme Court of India, in the case of State of Karnataka Vs. Pratap Chand and others, reported in 1981 Drugs Cases, (DC) 1 SC. The Hon'ble Allahabad High Court, in the case of R. K. Khandelwal and another, Vs. State, reported in 1983 Drugs Cases. The Hon'ble Madhya Pradesh High Court, in the case of Kishan Gopal Vassal and others, Vs. State of M.P., reported in 2008 Drugs Cases (DC) 584. In these rulings, it has been held that there must be averment to the effect that the directors or other officers who arrayed as accused was in charge and was responsible for the 38 CC.No.88-11 conduct of the business of the firm at the time of the commission of the offence.
39. Here, accused No.1 is a firm. The concept of vicarious liability u/s. 34 of the Act is applicable in cases of a company as defined in Sec. 34 of the Act and is not applicable to a proprietorship concern. A proprietorship concern is not a company. The sole proprietorship concern is excluded from the purview of Sec.34 of the Act. In the eye of law, a proprietorship concern is not a separate juristic entity and cannot be distinguished from its proprietor. Thus, accused No.1 is liable to be punished for the proved offences.
40. As far as accused No.2 is concerned, there is no evidence to the effect that accused No.2 is in charge of manufacturing section of M/s. Caretech Pharmaceutical. There is absolutely no evidence to the effect that accused No.2 involved in the activities of the firm. There is no evidence to the effect that accused No.2 know that M/s. Caretech Pharmaceutical had no licence to 39 CC.No.88-11 manufacture the drugs in the premises where they manufactured. Vicarious liability cannot be fastened on the employees of a sole proprietorship firm, by taking aid of Sec.34 of the Act. The learned Sr. A.P.P., would argued that the word used in Sec.18 of the Act, word used as "no person himself or by any other person on his behalf and that covers the person in charge of manufacturing of drugs. There is no evidence to the effect that accused No.2 was manufacturing the drugs on behalf of accused No.1. The evidence shows that he is only a employee of Accused No.1. Had, there is evidence that accused No.2 knew the aspect of not having the licence, then this argument could have been accepted. The employer will not disclose regarding the obtaining of licence to the employees and at the same time, the employees are not legally bound to enquire about that. Thus, the court is of the considered view that only accused No.1 is to be convicted for the proved offences. Accordingly, this point is answered partly in affirmative. 40 CC.No.88-11
41. Point No.7: Thus for the reason of giving findings to points referred above, I, proceed to pass the following order.
ORDER By exercising the power conferred u/s. 248 (1) of Cr.P.C. the accused No.1 is acquitted for the offence punishable u/s.27©) and accused No.2 is acquitted for the offences punishable u//s.27(b)(ii), 27(©) and 27(d) of the Drugs & Cosmetics Act, 1940.
By exercising the power conferred u/s. 248 (2) of Cr.P.C. the accused No.1 is convicted for the offences punishable u/s. 27(b)(ii) and 27(d) of the Drugs & Cosmetic Act, 1940 Bail bond of the accused No.2 stand cancelled. To hear regarding sentence on accused No.1. (Dictated to the Stenographer, directly on computer, typed by her corrected and then th pronounced by me, in open court on this the 20 day of April - 2018.) PRESIDING OFFICER.
41 CC.No.88-1102.05.2018 ORDER ON SENTENCE
42. Heard the accused No.1, his counsel and I/c Sr. A.P.P.,
43. The learned counsel of the accused No.1 argued that due to ignorance A-1 committed the proved offence. There is no bad intention behind the manufacture and sale of seized drugs. Considering the age and also the fact that the accused faced the trial for a long period, prayed to award minimum possible sentence and fine. In charge Sr. A.P.P., argued that proved offence is having serious consequence. The manufacturing and selling of drugs without verifying the quality and licence is prohibited. Thus, prayed to award maximum punishment.
44. The offences proved against the accused persons are punishable with fine and also with imprisonment. The proviso attached to Sec.27 (b)(ii) and 42 CC.No.88-11 Sec.27(d) of the Act, empowers the court to impose the sentence of imprisonment for a term less than one year, if there exists and adequate and special reasons. The seized drug is a not meant for human consumption. The seized drug was meant to be used in animal feed supplement manufacture. The accused No.1 married and having families. Thus, the court is of the considered view that if the accused No.1 is awarded with sentence to undergo imprisonment by remaining in jail, his family members will suffer.
45. The learned counsel of the accused No.1 relied upon the ruling rendered by our Hon'ble High Court in Crl.A.No.1309/2003, wherein the awarding imprisonment till the raising of the court for the offence punishable u/s.27 (d) of the Act by accepting the reasoning given therein is confirmed. In the case of State of Karnataka Vs. M/s. Sai Suguna Medical and General Stores and another, reported in 2015(1) Drug Cases (DC), 124, our Hon'ble confirmed the sentence 43 CC.No.88-11 given by the Trial Court till raising of the court for having committed the offence punishable u/s. 27(d) of the Act. Perusal of the rulings discloses that if sufficient reason is made out then punishment till the raising of the court can be awarded. In the case of State Of M.P. Vs Rajmal reported !997 Drug Cases 296, the Madhya Pradesh High Court upheld the awarding of sentence till the rising of the court for the offence p/u/s 27(b)(ii) of the Act. Here also there are grounds to show the leniency in imposing the sentence. Thus the court is of the considered view that in this case the grounds to award the sentence till the raising of the court is made out. Accordingly, I proceed to pass the following :
ORDER The accused No.1 is sentenced to undergo imprisonment till the raising of the court and to pay fine of Rs. 5,000/- (Rupees Five Thousand only) for the offence punishable u/s.27 (b) (ii) of the Drugs & Cosmetics Act, 1940. In default of payment of fine the 44 CC.No.88-11 accused No.1 shall undergo simple imprisonment for a period of one month.
The accused No.1 is sentenced to undergo imprisonment till the raising of the court and to pay fine of Rs. 5,000/- (Rupees Five Thousand only each) for the offence punishable u/s. 27 (d) of the Drugs & Cosmetics Act, 1940. In default of payment of fine the accused No.1 shall undergo simple imprisonment for a period of one month.
The sentence awarded to the accused No.1 shall run concurrently.
The samples identified as Mos.1 to 21 are to be returned to the complainant to dispose off the same in accordance with law, after the expiry of appeal period. (Dictated to the Stenographer, directly on computer, typed by her corrected and then nd pronounced by me, in open court on this the 2 day of May - 2018.) PRESIDING OFFICER.45 CC.No.88-11
ANNEXURE:
ON BEHALF OF THE COMPLAINANT: WITNESSES:
P.w.1 - Smt.D.S.Sylaja, P.w.2 - Lingaraj .C., P.w.3 - Smt.Yashoda S.V., P.w.4 - Smt.Mamatha V., P.w.5 - Anna Rao Naik, P.w.6 - Mallikarjuna Nagur, P.w.7 - Baravani, P.w.8 - Smt.B.G.Bhagyajyothi, P.w.9 - M.Khalid Ahmed Khan, P.w.10 - B.N.Babu, P.w.11 - Sushil Kumar, P.w.12 - Dr. B.R. Jagashetty, P.w.13 - Parashurama R., P.w.14 - Gopal S.Magadum, P.w.15 - M.Rajan, P.w.16 - Mudugal Ajay Krishnappa, P.w.17 - Sanju Kumar V., P.w.18 - R.Lokeshwara, P.w.19 - Amanuddin, P.w.20 - Subramaniam.
DOCUMENTS:
Ex.p.1 - Complaint, Ex.p.1 - (a) Sig. of P.w.1, Ex.p.2 - A/c of Appointment Order, Ex.p.2 - (a) Relevant entry, Ex.p.3 - A/c of Notification, Ex.p.3 - (a) Relevant entry, Ex.p.4 - Posting Order, Ex.p.4 - (a) Relevant entry, Ex.p.5 - A/c of Office order, Ex.p.5 - (a) Relevant entry, Ex.p.6 - Jurisdiction Notification-1, Ex.p.6 - (a) Relevant entry, 46 CC.No.88-11 Ex.p.7 - Office order of Addl. Charges, Ex.p.7 - (a) Relevant entry, Ex.p.8 - A/c of Pin Code Wise Notification, Ex.p.8 - (a) Relevant entry, Ex.p.9 - A/c of Mysore Gazette Notification, Ex.p.10 - A/c of S.18 Drugs & Cosmetic Act, Ex.p.11 - Panchanama, Ex.p.11 - (a) Sig. of P.W.2, Ex.p.11 - (b) Sig. of Accused No.1, Ex.p.11 - (c) Sig. of Narasimha Raju, Ex.p.11 - (d) R. Lokeshwara, Ex.p.11 - (e) Shankar Naik, Ex.p.11 - (f) B.N. Babu, Ex.p.11 - (g) R. Parashuram, Ex.p.12 - Form-16, Ex.p.12 - (a) Sig. of P.W.2, Ex.p.12 - (b) Sig. of Accused No.1, Ex.p.12 - (c) Sig. of Narasimha Raju, Ex.p.12 - (d) R. Lokeshwara, Ex.p.12 - (e) Shankar Naik, Ex.p.12 - (f) B.N. Babu, Ex.p.12 - (g) R. Parashuram, Ex.p.13 - A/c of Purchase Invoice, Ex.p.13 - (a) Sig. of A.1, Ex.p.14 - A/c of Purchase Invoice, Ex.p.14 - (a) Sig. of A.1, Ex.p.15 - to 32 A/c of 18 Sale invoices, Ex.p.15 - (a) to 32(a) Sig. of A.1, Ex.p.33 - to 35 A/c of Purchase Invoices, Ex.p.33 - (a) to 35(a) Sig. of A.1, Ex.p.36 - to 38 A/c of Purchase Invoices, Ex.p.36 - (a) to 38(a) Sig. of A.1, Ex.p.39 - to 54 A/c of Sale Invoices, Ex.p.39 - (a) to 54(a) Sig. of A.1, Ex.p.55 - A/c of Bank Statement, Ex.p.55 - (a) to 55(z) Sig. of A.1, Ex.p.55 - (aa) to 55(at) Sig. of A.1, Ex.p.56 - to 63 Purchase Invoices, 47 CC.No.88-11 Ex.p.56 - (a) to 63(a) Sig. of A.1, Ex.p.64 - to 67 A/c of Purchase Invoices, Ex.p.64 - (a) to 67(a) Sig. of A.1, Ex.p.68 - & 69 A/c of Purchase Order, Ex.p.68 - (a) & 69(a) Sig. of A.1, Ex.p.70 - to 72 Labels of M/s. Caretech Pharmaceuticals, Ex.p.70 - (a) to 72(a) Sig. of A.1, Ex.p.73 - St. of A.1, Ex.p.73 - (a) Sig. of A.1, Ex.p.74 - to 85 A/c of Registration & Constitution, Ex.p.74 - (a) to 85(a) Sig. of A.1, Ex.p.86 - O/c of Letter, Ex.p.87 - Permission Letter, Ex.p.88 - Confirmation Letter, Ex.p.88 - (a) Sig. of Proprietor/P.w.11, Ex.p.89 - Letter, Ex.p.89 - (a) Sig. of P.w.2, Ex.p.89 - (b) Sig. of A.1, Ex.p.90 - Statement, Ex.p.90 - (a) Sig. of P.w.2, Ex.p.90 - (b) Sig. of Rajan, Ex.p.91 - to 94 Four Invoices, Ex.p.91 - (a) to 94(a) Sig. of P.w.2, Ex.p.91 - (b) to 94(b) Sig. of Rajan, Ex.p.95 - Copy of Report, Ex.p.95 - (a) Sig. of P.w.2, Ex.p.96 - Statement, Ex.p.96 - (a) Sig. of Amanuddin, Ex.p.96 - (b) Sig. of P.w.2, Ex.p.97 - Statement, Ex.p.97 - (a) Sig. of Subramaniam, Ex.p.97 - (b) Sig. of P.w.2, Ex.p.98 - to 102 Five Invoices, Ex.p.98 - (a) to 102(a) Sig. of S. Subramanyam, Ex.p.103 - Report, Ex.p.103 - (a) Sig. of P.w.2, Ex.p.104 - Report, Ex.p.104 - (a) Sig. of P.w.2, 48 CC.No.88-11 Ex.p.105 - to 136 Letters & Acknowledgements, Ex.p.137 - Form No.17, Ex.p.137 - (a) Sig. of P.w.3, Ex.p.137 - (b) Sig. of P.w.4, Ex.p.137 - (c) Sig. of P.w.5, Ex.p.137 - (d) Sig. of P.w.17, Ex.p.138 - Form No.17A, Ex.p.138 - (a) Sig. of P.w.3, Ex.p.138 - (b) Sig. of P.w.4, Ex.p.138 - (c) Sig. of P.w.5, Ex.p.138 - (d) Sig. of P.w.17, Ex.p.139 - Form No.16, Ex.p.139 - (a) Sig. of P.w.3, Ex.p.139 - (b) Sig. of P.w.4, Ex.p.139 - (c) Sig. of P.w.5, Ex.p.139 - (d) Sig. of P.w.17, Ex.p.140 - Statement of A.1, Ex.p.140 - (a) Sig. of P.w.3, Ex.p.140 - (b) Sig. of P.w.4, Ex.p.140 - (b) Sig. of P.w.17, Ex.p.140 - (c) Sig. of P.w.5, Ex.p.141 - Mahazar, Ex.p.141 - (a) Sig. of P.w.3, Ex.p.141 - (b) Sig. of P.w.4, Ex.p.141 - (c) Sig. of P.w.5, Ex.p.141 - (d) Sig. of P.w.17, Ex.p.142 - Sketch, Ex.p.142 - (a) Sig. of P.w.3, Ex.p.142 - (b) Sig. of P.w.4, Ex.p.142 - (c) Sig. of P.w.5, Ex.p.143 - Form No.18, Ex.p.143 - (a) Sig. of P.w.5, Ex.p.144 - Form No.18, Ex.p.144 - (a) Sig. of P.w.5, Ex.p.145 - Form No.18, Ex.p.145 - (a) Sig. of P.w.5, Ex.p.146 - Form No.18, Ex.p.146 - (a) Sig. of P.w.5, 49 CC.No.88-11 Ex.p.147 - Form No.18, Ex.p.147 - (a) Sig. of P.w.5, Ex.p.148 - O/c of Interim Report, Ex.p.148 - (a) Sig. of P.w.5, Ex.p.149 - Letter, Ex.p.149 - (a) Sig. of P.w.7, Ex.p.150 - Letter, Ex.p.150 - (a) Sig. of P.w.7, Ex.p.151 - A/c of Licence in Form No.25A, Ex.p.152 - Product Permission Letter, Ex.p.153 - Letter, Ex.p.153 - (a) Sig. of P.w.5, Ex.p.153 - (b) Sig. of A.1, Ex.p.154 - A/c of Commercial Tax Registration Certificate dated: 15.09.2004, Ex.p.154 - (a) Sig. of A.1, Ex.p.155 - A/c of Central sales Tax Registration Certificate dated: 15.09.2004, Ex.p.155 - (a) Sig. of A.1, Ex.p.156 - A/c of Karnataka State Tax Registration Certificate dated: 01.10.2004, Ex.p.156 - (a) Sig. of A.1, Ex.p.157 - A/c of Invoice, Ex.p.157 - (a) Sig. of A.1, Ex.p.158 - A/c of Raw material book containing Relevant book pages No.167 to 170, 175, to 180, 187 to 190, 193 to 200, 203 & 204, Ex.p.158 - (a) to (x) Sig. of A.1, Ex.p.159 - A/c of Order book (20 relevant pages), Ex.p.160 - A/c of Production chart (including covering Page 17 relevant pages), Ex.p.161 - Form No.13 dated:14.09.2007, Ex.p.161 - (a) Sig. of P.w.14, Ex.p.162 - Form No.13 dated:22.10.2007, Ex.p.163 - O/c of Notice, Ex.p.163 - (a) Sig. of P.w.5, Ex.p.163 - (b) Sig. of A.1, Ex.p.164 - O/c of Notice, 50 CC.No.88-11 Ex.p.164 - (a) Sig. of P.w.5, Ex.p.164 - (b) Sig. of A.1, Ex.p.165 - Requisition Letter, Ex.p.165 - (a) Sig. of P.w.8, Ex.p.166 - Letter, Ex.p.166 - (a) Sig. of P.w.6, Ex.p.167 - O/c of Notice, Ex.p.167 - (a) Sig. of P.w.8, Ex.p.168 - Postal Acknowledgement, Ex.p.169 - Reply, Ex.p.170 - Letter, Ex.p.170 - (a) Sig. of P.w.8, Ex.p.171 - Letter, Ex.p.171 - (a) Sig. of P.w.9, Ex.p.172 - Letter, Ex.p.172 - (a) Sig. of P.w.8, Ex.p.173 - Covering Letter, Ex.p.174 - to 176 Copies of Documents, Ex.p.177 - to 184 Copies of Invoices, Ex.p.185 - Report of Drug Inspector/ Permission Letter, Ex.p.185 - (a) Sig. of P.w.16, Ex.p.186 - Sanction order, Ex.p.186 - (a) Sig. of P.w.12, Ex.p.187 - Notification, Ex.p.188 - Report, Ex.p.188 - (a) Sig. of P.w.14, Ex.p.189 - Report, Ex.p.189 - (a) Sig. of P.w.14, Ex.p.190 - Report, Ex.p.190 - (a) Sig. of P.w.14, Ex.p.191 - Report, Ex.p.191 - (a) Sig. of P.w.14.
MATERIAL OBJECTS:
Mo.1 - Empty Container labeled as Enro-10, Mo.1 - (a) Sig. of Pw-2, 51 CC.No.88-11 Mo.1 - (b) Sig. of Accused, Mo.1 - (c) Sig. of Narasimha Raju, Mo.2 - to 6 One Portion each of the samples drawn, Mo.2 - (a) to 6(a) Sig. of P.w.5, Mo.2 - (b) to 6(b) Sig. of A.2, Mo.7 - Box, Mo.7 - (i) to 7(xv) 15 Bottles of Enro-10, B.No.005, Mo.7 - (a) Sig. of Sanjeev Kumar, Mo.7 - (b) Sig. of Mahesh G., Mo.8 - Box, Mo.8 - (i) to 8(xv) 15 Bottles of Enro-10, B.No.005, Mo.8 - (a) Sig. of Sanjeev Kumar, Mo.8 - (b) Sig. of Mahesh G., Mo.9 - Box, Mo.9 - (i) to 9(xv) 15 Bottles of Enro-10, B.No.005, Mo.9 - (a) Sig. of Sanjeev Kumar, Mo.9 - (b) Sig. of Mahesh G., Mo.10 - Box, Mo.10 - (i) to 10(xi) 11 Bottles of Enro-10, B.No.005, Mo.10 - (a) Sig. of Sanjeev Kumar, Mo.10 - (b) Sig. of Mahesh G., Mo.11 - Box, Mo.11 - (i) to 11(xLvi) 46 Bottles of Myciprol, B.No.1048, Mo.12 - Box, Mo.12 - (i) to 12(xxi) 21 Bottles of Myciprol, B.No.1048, Mo.12 - (a) Sig. of Sanjeev Kumar, Mo.12 - (b) Sig. of Mahesh G., Mo.13 - 1 drum x 24.9kg of Enrofloxacin I.P., Labeled, B.No.EN-0678, Mo.13 - (a) Sig. of Sanjeev Kumar, Mo.13 - (b) Sig. of Mahesh G., Mo.14 - 1 drum x 4kg of Ciprofloxacin Hydrochloride, powder, B.No.Nil, Mo.14 - (a) Sig. of Sanjeev Kumar, Mo.14 - (b) Sig. of Mahesh G., Mo.15 - 575 Un-coded labels of Myciprol kept in stapled transparent polythene cover, 52 CC.No.88-11 Mo.16 - 436 Un-coded labels tied in white twine thread, Mo.17 - 8 Coded labels of Myciprol kept in stapled transparent polythene cover with B.No.1042 of 250 gms, Mo.18 - 16 Coded labels of Myciprol kept in stapled transparent polythene cover with B.No.1042 of 100 gms, Mo.19 - 4 Coded labels of Myciprol kept in stapled transparent polythene cover with B.No.1035 of 250 gms, Mo.20 - 2 Coded labels of Myciprol kept in stapled transparent polythene cover with B.No.1038 of 100 gms, Mo.21 - 3 Coded labels of Myciprol kept in stapled transparent polythene cover with B.No.1048 of 100 gms.
ON BEHALF OF THE ACCUSED: Witnesses & Documents: Nil.
(SHANTHANNA ALVA M.) PRESIDING OFFICER, SPL.COURT FOR ECONOMIC OFFENCES, BANGALORE.53 CC.No.88-11
20.04.2018 Complt.,-Sr.A.P.P., A.1 & 2 - G.D.R., For Judgment. (Judgment pronounced in open court vide separate order) ORDER By exercising the power conferred u/s. 248 (1) of Cr.P.C. the accused No.1 is acquitted for the offence punishable u/s.27©) and accused No.2 is acquitted for the offences punishable u/s.27(b)(ii), 27(©) and 27(d) of the Drugs & Cosmetics Act, 1940.
By exercising the power conferred u/s. 248 (2) of Cr.P.C. the accused No.1 is convicted for the offences punishable u/s. 27(b)(ii) and 27(d) of the Drugs & Cosmetic Act, 1940 Bail bond of the accused No.2 stand cancelled. To hear regarding sentence on accused No.1.
Presiding officer.
54 CC.No.88-1102.05.2018 Complt.,-Sr.A.P.P., A.1 & 2 - G.D.R., For sentence order.
(Order regarding sentence pronounced in open court vide separate order) ORDER The accused No.1 is sentenced to undergo imprisonment till the raising of the court and to pay fine of Rs. 5,000/- (Rupees Five Thousand only) for the offence punishable u/s.27 (b) (ii) of the Drugs & Cosmetics Act, 1940. In default of payment of fine the accused No.1 shall undergo simple imprisonment for a period of one month.
The accused No.1 is sentenced to undergo imprisonment till the raising of the court and to pay fine of Rs. 5,000/- (Rupees Five Thousand only each) for the offence punishable u/s.27 (d) of the Drugs & Cosmetics Act, 1940. In default of payment of fine the accused No.1 shall undergo simple imprisonment for a period of one month.
The sentence awarded to the accused No.1 shall run concurrently.
The samples identified as Mos.1 to 21 are to be returned to the complainant to dispose off the same in accordance with law after the expiry of appeal period.
Presiding officer.