Decided on December 24,1992


Referred Judgements :-


Cited Judgements :-



- (1.)PW.1 inspected M/s Nidubrolu Medical Agencies, Nidubrolu, a licensed sales premises, and purchased ten bottles of Sodium Chloride an dextrose injections manufactured under dated 13-2-1989 to be used within 18 months therefrom said to be manufactured by M/s Vezey Parenteral Products, F-7, Industrial Estate, Kakinada (hereinafter referred to as A-1). The samples were taken, after observing necessary formalities, in the presence of P.W.2, the proprietor of M/s Nidubrolu Medical Agencies, etc. Two such bottles weresent to the Government Analyst Drugs Control Laboratory, Hyderabad in Form No.18 under date 28-6-1989 after observing necessary formalities and the report of the analyst states that the said sample is not of standard quality as defined in the Drugs and Cosmetics Act, 1940 and the Rules made thereunder as the solution in the sealed bottles contains plenty of particles and fungus like mass. This report is marked as Ex. P-3. P.W.1 Sent a copy of Ex. P-3 by registered post to M/s Nidubrolu Medical Agencies, Nidubrolu with a direction to disclose source of supply from whom they acquired the said product. In view of that, P.W.2 representing M/s Nidubrolu Medical Agencies, Nidubrolu informed P.W.I that the said product was purchased from M/s Amruta Medical Agencies, Narsaraopet Vide Invoice No.12/100 dated 9th May, 1990 and produced the xerox copy of the purchase bill. As such, P.W.1 addressed a letter dated 16-2-1990 to M/s Amrutha Medical Agencies, Narsaraopet about the contents of Ex.P-3 and about the factum of P.W.2 informing P.W.I that P.W.2 purchased the same from M/s Armutha Medical Agencies, Narsaraopet. Thereupon, P.W.3 a partner of the M/s Amrutha Medical Agencies informed P.W.I that the drug in question was supplied by A-1 vide invoice No. 7/89 dated 8-5-1989. In the said communication, P.W.3 confirmed to have sold the drug in question to M/s Nidubrolu Medical Agencies, Nidubrolu from whom P.W.I took the sample. Later P.W.1 laid prosecution against A-1 and the revision petitioner, who is no other than sole proprietor of A-l in C.C. No.78/90 on the file of the judicial First Class Magistrate, Ponnur. The learned Magistrate having tried the case held that A-l is not guilty of any offence and the revision petitioner is guilty of offences under Section 17 (a), 18 (a) (i) and Rule 78 (m) read with Section 27 (d) of the Drugs and Cosmetics Act (in brief 'the Act') and the rules framed thereunder and convicted the revision petitioner to suffer R.I. for a period of one year and also sentenced to pay a fine of Rs. 500/ - in default to undergo R.I. for one month. Aggrieved by the same, the revision petition filed Crl. A.No. 119 of 1991 on the file on the learned Sessions Judge, Guntur. The learned Sessions Judge having considered the matter dismissed the appeal. Aggrieved by the same present revision case is filed.
(2.)Sri Padmanabha Reddy, the learned counsel appearing for the petitioner submits that under Section 23 (4) (iii) read with Section 18 (A) of the Act, the revision petitioner is entitled to a portion of the sample; as per the provisions of Section 25(2) of the Act, his client is also entitled to a copy of Ex. P-3 and since the sample or copy of Ex. P-3 not supplied, his client is precluded from exercising a valuable right to get the sample examined by the Central Drug Laboratory, as provided under Section 25(4) of the Act. He further contends that the above provisions are mandatory and consequently the accused is entitled for an acquittal, To appreciate the above contentions, Secs.23(4)(iii), 18(A) and 25 (2) of the Act are extracted below: Section 23(4) (iii).
"The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows- (iii) the third, where taken, he shall send to the person, if any, whose name, address and other particulars have been disclosed under Sec.18-A"
Section 18(A)
"From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf- (a) Manufacture for saleor distribution, or sell, or stock or exhibit or offer for sale (i) any drug which is not of a standard quality or is misbranded, adulterated or spurious; (ii) any cosmetic which is not of a standard quality or is misbranded or spurious; (iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true formula or list of active ingredients contained in it together with the quantities thereof; (iv) any drug which by means of any statement, design or device accompany it or by any other means, purports or claims (to prevent, cure or mitigate) any such disease or ailment, or to have any such other effect as may be prescribed; (v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended; (vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder;
Section 25 (2):
"The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and other particulars have been disclosed under Section 18-A, and shall retain the third copy for use in any prosecution in respect of the sample."
Section 23 of the Act shows that where a sample of drug or cosmetic was taken for the purpose of analysis, after observing necessary formalities, the Inspector shall restore one portion of the sample so divided to the person from whom he takes the sample, one portion of the sample be sent to the Government Analyst for test or analysis, another portion shall be produced before the Court before which proceedings, if any, are instituted in respect of the drug or cosmetic and the other portion be sent to person, if any, whose name and address and other particulars have been disclosed under Section 18-A. It is to be seen that when P.W.I asked P.W.2 as to where the drug in question was purchased, P.W.2 informed that the drug was purchased form M/s Amruta Medical Agencies, Nasaraopet and P.W.I was also informed that M./s Amruta Medical Agencies purchased the drug in question from A-1. Thus, as per the provisions of Sec.l8-A of the Act read with Section 23 (4) (iii), the revision petitioner who is the sole proprietor of A-l is entitled to the same. It is further to be seen that sending a sample to a person situtated similar to the Revision petitioner who is the manufacturer, is not a mere formality. In the event of such a sample being sent to the manufacturer, as could be seen from the provisions of Section 25(4), the manufacturer is entitled to get the same tested or analysed in the Central Drug Laboratory, to have a second opinion regarding the contents of the report of the Government Analyst, received under Section 25 (1) of the Act.
(3.)The learned counsel for the Revision petitioner relies upon a decision reported in Drugs Inspector, C.D.S.C.O. (South) Zone, Madras vs. Modern Drugs wherein it is observed as followed:
"Section 25 is mandatory and it should be complied with. Strict observance of the provision is imperative. As the Analyst's report is conclusive evidence of its contents, it is absolutely necessary to observe corresponding security and safeguards. The right is a every valuable right for, within twenty eight days of the receipt of the copy of the report, accused can notify in writing to the Inspector or to the Court that he intends to adduce evidence in controversionof the report. The prosecution cannot deny the right by not serving a copy of the Analyst's report on the accused. Where there is a denial of the right, prosecution is not entitled to secure the conviction of the accused."
This decision categorically lays down that Section 25 of the Act is mandatory and it should be complied with. It is further observed that the provisions of Section 25 are imperative and should be followed and that the right is a very valuable right whereunder the petitioner is entitled to get the sample tested or analysed in the Central Drugs Laboratory. To the same effect is the decision reported in AM. & G. Stores vs. State.

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