Prakash Tatia, C.J. - (1.) Heard learned counsel for the parties.
(2.) The petitioner has challenged the notice no.114 dated 31st March, 2011(Annexure-3), which, according to the petitioner, is not a show cause notice but by this it has been conveyed that the authorities have decided that the commodity in question, which has been seized under the provisions of Section 22(c) of the Drugs and Cosmetics Act, 1940 is a drug and, therefore, the petitioner submitted that after notice (Annexure-3), he had no other alternative remedy except to approach this Court to challenge the said communication-Annexure-3 dated 31st March, 2011.
(3.) Learned counsel for the petitioner submitted that the commodity in question, which has been seized, is not the "drug" because it does not fall within the definition of "medicine" as given of drug in sub-clause(b) of Section 3 of the Drugs and Cosmetics Act, 1940. It is also submitted that if, any medicine is added in a commodity then that commodity will not become the medicine whereas the adding of anything in the medicine will make the other commodity a medicine. It is also submitted that it is true that Ciprofloxacin Hydrochloride is an antibiotic but as per the International Research papers the antibiotics are growth promoters for the live stock and referred a portion from the journal of Animal Science published by American Society of Animal science, which appears to be downloaded from the Website on 22nd June, 2011 and has been annexed along with supplementary affidavit as Annexure-8. The petitioner also placed on record several other documents to show that any of other commodity like Saffola Active , Complan etc. there may be some of the medicine added but even then they are treated as food supplements and growth promoters for the human being but they are not the medicine. Learned counsel for the petitioner further submitted that even purified water may become medicine in given circumstance, as given out in the Indian Pharmacopoeia, and copy of such opinion has been annexed as Annexure-1 by the petitioner along with yet another supplementary affidavit. It is also submitted that even sugar may become medicine if it is used in particular manner but it is not necessary that adding of any medicine or drug in an article will make that article as medicine or drug. Learned counsel for the petitioner further submitted that Hon'ble Supreme Court in the case of State of Goa v. Leukoplast(India)Ltd. reported in (1997) 4 Supreme Court Cases, 82 has considered this aspect of the matter and after considering the judgments of the Foreign Courts observed that in the case of Custom and Excise Commissioner v. Beecham Foods Ltd. (1972)1WLR 241 , it has been observed in the said judgment that the fact that a drug was present in something did not convert that preparation as a whole into a drug and in that case even a claim of the claimant that since their product i.e., Ribena black currant juice containing Vitamin-C and, therefore, it is drug, has been rejected. Learned counsel for the petitioner further submitted that it is a matter of interpretation only and not a matter of fact, which requires adjudication and issue can be decided on the basis of experts opinion published in various papers with the help of the other example , for which the material has been placed by the writ petitioner in the supplementary affidavit etc.;