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21. The comparative statement of the above provisions indicates that para 14(1) of DPCO,1995 is identical to para 16(3) of DPCO,1987. Para 14(2) of DPCO,1995 is identical to para 17 of DPCO,1987. Para 14(3) of DPCO,1995 is identical to para 16(3) of DPCO,1987 and para 15(1) of DPCO,1995 is identical to para 17 of DPCO,1987.

22. In light of the similarity of the above provisions, for the sake of convenience, we shall refer henceforth to the provisions contained in DPCO,1995.

36. As regards the circular of 28.04.1979, the submission of the learned Additional Solicitor General is that DPCO,1979 stands repealed and the so-called circular is not saved by the saving clause as it is not a thing done or action taken under the DPCO. Rather it is clarification of the DPCO itself and it cannot survive once the DPCO is repealed. The circular of 28.04.1979 was in the context of interpretation of DPCO,1970 and DPCO,1979 whereas the present matters are concerned with DPCO,1987 and DPCO,1995. Relying upon a decision of this Court in M/s. G.S. Dall and Flour Mills[5], it is argued that an executive instruction issued in a certain context cannot govern a later notification. Moreover, it is submitted that if a circular provides an interpretation that runs contrary to the provisions of DPCO, the Court may examine the provisions and interpret them in their proper perspective. The circular is not binding on the court. The circular is not issued under any statutory authority and cannot be used to interpret the provisions of the statute.

42. Following the Hathi Committee Report, the Government first framed the statement on drug policy and then issued DPCO,1979. The DPCO,1970 was accordingly repealed. DPCO,1979 is repealed by DPCO,1987 and DPCO,1987 is repealed by DPCO,1995.

43. In order to have the proper perspective of the matter, it is necessary that certain provisions of the DPCO,1995 are surveyed. Paragraph 2 is an interpretation clause, it defines certain expressions occurring in DPCO as under:

50. Then, the interpretation to sub-paragraph (1) of paragraph 14 urged on behalf of the manufacturer/distributor may also result in misuse by the manufacturer inasmuch as the manufacturer may increase manufacture of the bulk drugs during fifteen-day period of notified price and clear that stock at the unrevised/higher price. We are afraid, this interpretation will also lead to frustrating the regulatory regime which is sought to be put in place by DPCO.

51. The senior counsel for the manufacturer contends that under paragraph 15 of DPCO,1995, it is incumbent to print the maximum retail price on the product and that too indelibly. There is no provision for reprinting of the labels or of return of drugs once they leave the factory premises. Thus, the batches which have been manufactured and stamped with old prices can continue to be sold at those prices. We do not find any merit in the argument. The DPCO defines ‘dealer’, ‘distributor’, ‘manufacturer’, ‘retailer’ and ‘wholesaler’. The provisions contained in paragraphs 3,8, 9 and other relevant provisions clearly show that DPCO effectively covers the chain from manufacture of the bulk drug by the manufacturer to sale of formulation to consumer though there may be several persons in the distribution chain. The ultimate object of the DPCO is that there is no deception to a consumer and he is sold the formulation at a price not exceeding the price specified in the current price list or price indicated on the label of the container or pack thereof, whichever is less. Logically it follows that there cannot be two prices at the end point of the distribution chain depending on the batch number. A consumer approaching a chemist/retailer can hardly be offered two prices for the very same product based only on the difference in batch numbers. Consumer must get the benefit of the notified price. That is the ultimate objective of DPCO. The batch number cannot override the benefit to which a consumer is entitled on price reduction of a formulation. A fair reading of DPCO leaves no manner of doubt that a formulation cannot be sold to the consumer at the higher price (for earlier batch numbers). In this view of the matter, we find merit in the submission of the learned Additional Solicitor General that the provisions of DPCO requires not just the end point sale to be at the notified price, but also every sale within the distribution chain must be at the notified price, if such sale is made after the date on which sale price is operative.