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THE DRUGS INSPECTOR V/S PONNAM DEVALA RAO , decided on Friday, October 8, 2004.
[ In the High Court of Andhra Pradesh, Criminal Appeal No.949 of 1999 . ] 08/10/2004
Judge(s) : P.S. NARAYANA
Advocate(s) : Public Prosecutor. M. Vijay Kumar.
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  "2005 (1) ALT(Cri) 227 (AP)"  







    Drugs and Cosmetics Act 1940 - Section 18(A)(i) & 23 (4) - Non-Compliance of Mandatory Provisions - On appreciation of evidence a clear finding had been recorded that the mandatory provisions of Section 23(4) of the Act had not been complied with and the same had been contravened and thus the limited question for which the matter was remitted back had been answered by the learned Magistrate in favour of the respondent-accused and an order of acquittal had been recorded - This Court is of the considered opinion that there are no reasons to express any different opinion or to disturb the said findings recorded by the learned Magistrate. Accordingly the said findings are hereby confirmed. Consequently the appeal is devoid of merits and the same shall stand dismissed.Para 13 & 14Cases Referred:Vetcha Venkata Raju (A-s) v. State of A.P. 1993 1 LS 182     The Drugs Inspector Prakasam District represented by the Public Prosecutor High Court of Andhra Pradesh Hyderabad preferred the present Criminal Appeal as against the Judgment dated 22-10-1997 made in C.C.No.59 of 1989 on the file of II Additional Munsif Magistrate Ongole.2. The Drugs Inspector Prakasam District filed Charge sheet against the accused alleging that the accused contravened the provisions of Section 18(A)(i) read with Second Schedule of the Drugs and Cosmetics Act 1940 (for brevity Act) punishable under Section 27(d) of the Act.3. The case of the prosecution is that the accused is the sole proprietor of a manufacturing unit run under the name and style of M/s. P-Pharma Surgical Cotton Industries supplied absorbent cotton wool I.P.500 grams Batch No.028 to District and Medical Officer. It is also the case of the prosecution that on 22-09-1987 T. Bose Babu had inspected the Family Planning Stores situated in District Medical and Health Office under the control of District Medical and Health Officer Ongole and had taken sample of absorbent cotton under voucher No.1708 dated 22-09-1987 from Sk. M. Basha and forwarded the sealed portion of the said drug to the Government Analyst Drugs Control Laboratory Hyderabad for test or Analysis as per the provisions of Drugs and Cosmetics Act 1940 and the Rules there under. The Government Analyst Drugs Control Laboratory Hyderabad had declared that the said drug as of not standard Quality and issued a certificate of test or analysis in Form No.13 in triplicate bearing report No.1351/A/87 dated 29-12-87. T. Bose Babu had forwarded the said certificate of test or analysis to the District and Medical Health Officer Ongole requesting him to furnish the details of stock position and purchase invoices of the said drug. The District Medical and Health Officer in his letter dated 24-01-1988 had expressed his inability to furnish the said details as their stock registers were taken away by Anti Corruption Bureau authorities. Later the Director Drugs Control Administration Hyderabad has issued a show cause notice to the accused and the accused issued a reply in his letter dated 15-06-1988 and as he was not satisfied with the reply directed T. Bose Babu to prosecute the accused. Bose Babu received the required information from all the concerned officials including from District Medical and Health Officer Ongole stating that the accused firm had supplied the said drug and after completion of the formalities required under the Act filed charge sheet under Section 27(d) alleging that the accused had contravened the provisions of the Act.4. On appreciation of the evidence the accused was convicted and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.5 000/- and in default to undergo simple imprisonment for three months. Aggrieved by the same criminal appeal No.106 of 1990 was preferred on the file of the Court of Session. Prakasam Division Ongole and the learned Sessions Judge confirmed the said judgment and dismissed the appeal and then the accused preferred Criminal R.C.No.11 of 1995 on the file of this Court. The High Court of Andhra Pradesh made an order wherein it was observed that the Court failed to taken into consideration the compliance of Section 23(4) of the Act and hence Criminal R.C. is allowed and the matter is remitted to the trial Court for fresh disposal keeping in view the compliance of Section 23(4) of the Act.5. In view of the fact that the matter was remitted for the limited purpose the learned II Additional Munsif Magistrate Ongole had decided the question relating to the compliance of Section 23(4) of the Act and after recording reasons came to the conclusion that the said mandatory provision was not complied with and hence accused was found not guilty for the offences with which he had been charged with under the Act. As against the order of acquittal the present criminal appeal is preferred.6. The learned Additional Public Prosecutor submitted that the reasons recorded by the learned Magistrate cannot be sustained. The learned Additional Public Prosecutor also had pointed out to the findings recorded by the learned Magistrate in this regard.7. On the contrary Sri. M. Vijaykumar the learned counsel representing respondent-accused would submit that the limited purpose for which the matter was remitted back by this Court is to decide whether the mandatory provisions of Section 23(4) of the Act had been complied with or not? The learned Counsel also had drawn the attention of this Court to the findings recorded by the learned Magistrate at paragraphs 18 to 21 and would submit that a clear finding had been recorded after perusing the material available on record that P.Ws.1 had contravened the provisions of Section 23(4) of the Act and hence prejudice was caused to the accused and recorded an acquittal. In view of the same the findings may have to be confirmed and the appeal is liable to be dismissed.8. Heard both the counsel.9. The facts in brief already had been narrated supra and this matter was remitted to the trial Court for fresh disposal keeping in view he compliance of Section 23(4) of the Act while deciding the Criminal R.C.No.11 of 1995.10. Section 23 of the Act deals with the procedure of Inspectors. Section 23(4) of the Act reads as hereunder:Section 23. Procedure of Inspectors:-1) 2) 3) 4) 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:-i) one portion or container he shall forthwith send to the Government Analyst for test or analysis;ii) the second he shall produce to the Court before which proceedings if any are instituted in respect of the drug (or cosmetic); andiii) the third where taken he shall send to the person if any whose name address and other particulars have been disclosed under Section 18-A.11. Strong reliance was placed on the decision of this Court in Vetcha Venkata Raju (A-s) Vs. State of A.P. (A.P.) 1993 (1) L.S.182 where in it was held that non-compliance of the mandatory provisions of Section 25 of the Act would vitiate the procedure and portion of the sample and the copy of the Analyst Report are not supplied to the accused which would amount to non-compliance of mandatory provisions of Sections 23 and 25 and hence conviction is illegal. The learned Judge clearly observed in the said judgment that non-compliance of mandatory provisions of Section 23(4)(iii) and 25(2) and (4) of the Act would cause prejudice to the accused and non-compliance thereof must result in recording the acquittal.12. On appreciation of the evidence of P.W.1 the learned Magistrate observed:When the Drugs Inspector is conscious that he has to give one sample of the Drug to the manufacturer after lifting the sample of the drug to the manufacturer after lifting the sample of the drug one portion of the sample to District Medical and Health Officer Ongole from whom he lifted the sample. As per the evidence of P.W.1 one portion of sample was sent to the Analyst and Second; one to the District Medical and Health Officer Ongole from whom he lifted the sample and he kept the other two with him. Thus he complied only part of Section 23(4) of the Act. The intend of Section 23(4) is that the same sample he lifted should be available with the person from whom he lifted the sample and also the manufacturer and for that reason it is clearly provided that the drugs inspector has to give one portion of the sample to the person from whom the sample is lifted and the other is to the manufacturer. Thus P.W.1 has clearly contravened Section 23(4) of the Act.This is a finding of fact recorded by the learned Magistrate.13. On appreciation of evidence a clear finding had been recorded that the mandatory provisions of Section 23(4) of the Act had not been complied with and the same had been contravened and thus the limited question for which the matter was remitted back had been answered by the learned Magistrate in favour of the respondent-accused and an order of acquittal had been recorded.14. In the light of the facts referred to supra this Court is of the considered opinion that there are no reasons to express any different opinion or to disturb the said findings recorded by the learned Magistrate. Accordingly the said findings are hereby confirmed. Consequently the appeal is devoid of merits and the same shall stand dismissed.