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Ban Labs Ltd. & Another v/s Drugs Inspector & Others

    CRMC. No. 84 of 2011 & IA. No. 82 of 2011

    Decided On, 07 September 2018

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE SANJAY KUMAR GUPTA

    For the Petitioners: Sachin Gupta, Advocate. For the Respondents: C. M. Koul, Sr. AAG vice, H. A. Siddiqui, Sr. AAG.



Judgment Text

1. The case of the petitioners is that petitioner No. 1 is a Public Limited Company having its registered office at Ban House, Gondal Road, South, Rajkot Gujarat. The petitioner No. 2 claims to be the Chairman of the said Company. It is stated that petitioner No. 1-Company has been granted license, being License No. UTRA-AYU-50 of 2004 to manufacture for sale of the Ayurvedic drugs; that the said license has been last renewed under Rule 155 of the Drugs and Cosmetics Rules, 1945.

2. Learned counsel for the petitioners states that respondent has filed a criminal complaint under Sections 18(a), 18 (b) and 18 (c) read with Sections 27(b) and 27(d) of the Drugs and Cosmetics Act, 1940 against the petitioners and one Bharat Bhushan Mantoo (accused No.1 in the complaint). It is stated that a bare reading of the complaint reveals that complainant-respondent is seeking to prosecute the accused in the complaint under Sections 18(a), 18(b) and 18(c) read with Sections 27(b) and 127(d) of the Drugs and Cosmetics Act, 1940. Sub-Sections (a), (b) and (c) of Section 18 of the Act prescribe and create prohibitions with respect to manufacture for sale or for distribution of certain drugs and cosmetics, sale or stocking etc., of any such drug and cosmetics and the manufacture for sale or distribution any such drug under the circumstances mentioned in these Sub-Sections. Section 27 of the Act prescribes and provides penalties for committing offences in violation of the aforesaid provision.

3. Petitioners have stated in this petition that respondent no.1 while conducting the action, has not complied the provision of Chapter IVA of Drug and Cosmetic Act, which is applicable to Ayurvedic, Siddha and Unani Drugs; that Drug Inspector who filed the complaint was not competent, because he was not Inspector appointed as per chapter IVA of the Act.

4. Objections have been filed by the respondent No.1. The stand taken in the objections is that there is no case made out for quashing the proceedings and that the allegations alleged in the complaint, prima facie, constitute an offence against the petitioners under the Drugs and Cosmetics Act, 1940. It is stated that respondent No.1 is presently holding the office of Drug Inspector Jammu, Zone-1, and is well aware of the facts and circumstances of the matter under question. It is further stated that the Drug Inspector, Jammu, is an Inspector appointed in the exercise of powers conferred by Section 21 of the Drugs and Cosmetic, Act 1940 under SRO No. 288 dated 28.07.1989.

5. I have considered the rival contentions. I have also gone through the law on the subject.

6. Admittedly drugs (Leucogyl Capsules), which was lifted by Drug Inspector and sent for Analysis is Ayurvedic dugs. The Drugs and Cosmetics Act, 1940 regulates the import, manufacture, distribution and sale of drugs and cosmetics. Section 3(a) of Act defines Ayurvedic, Siddha and Unani Drugs; it reads as under:-

3[(a) '[Ayurvedic, Siddha or Unani] drug' includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of 8 [disease or disorder in human beings or animals, and manufactured] exclusively in accordance with the formulae described in, the authoritative books of [Ayurvedic, Siddha and Unani Tibb systems of medicine], specified in the First Schedule;]

Section 3(b) defines drug; it reads as under ;-

[(b) 'drug' includes- [(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;]

(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of 6 [vermin] or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;]

(iii) all substances intended for use as components of a drug including empty gelatin capsules; and

(iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;]

7. So from bare perusal of these definitions, it is evident that 'Ayurvedic, Siddha or Unani drugs are different drugs to that of general drugs defined in section 3 (b).

8. Term 'Inspector‟has been defined in clause (e) of section 3 of Act, it reads as under:-

(e) 'Inspector' means- (i) in relation to [Ayurvedic, Siddha or Unani] drug, an Inspector appointed by the Central Government or a State Government under section 33G; and

(ii) in relation to any other drug or cosmetic, an Inspector appointed by the Central Government or a State Government under section 21;]'

9. From the perusal of these definitions, it is evident that two types of inspector have been prescribed for launching proceeding under this Act, one pertaining to Ayurvedic, Siddha or Unani drugs and another to other drugs.

10. Chapter IV of Act deals with manufacture, sale and distribution of general drugs and cosmetic. Inspectors appointed under section 21 of Act would be entitled to launch prosecution for drugs and cosmetics, other than Ayurvedic, Siddha or Unani drugs. Its section 32 reads as under:-

'32. Cognizance of offence.-(1) No prosecution under this Chapter shall be instituted except by- (a) an Inspector; or

(b) any gazetted officer of central Govt. or State Govt. authorized in writing in this behalf by central Govt. or State Govt. by general or special order made in this behalf.

(c) the person aggrieved or

(d) by a recognized consumer association whether such person is a member of that association or not].

(2) Save as otherwise provided in this Act , no court inferior to that of Sessions shall try an offence punishable under this Chapter.

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter.'

11. Section 33-A of Act is also relevant to be taken note. It reads as under:-

'33A. Chapter not to apply to [Ayurvedic, Siddha or Unani] drugs.- Save as otherwise provided in this Act, nothing contained in this Chapter shall apply to [Ayurvedic, Siddha or Unani] drugs.]'

12. So in terms of section 33-A of Act, the provision of Chapter IV shall not be applicable to regulate the import, manufacture, distribution and sale of Ayurvedic, Siddha or Unani drugs. Chapter IVA of the said Act exclusively deals with the provisions relating to Ayurvedic, Siddha and Unani Drugs.

13. Section 33 EEC reads as under:-

'33EEC. Prohibition of manufacture and sale of certain Ayurvedic, Siddha and Unani drug.-From such date as the State Government may, by notification in the Official Gazette, specify in this behalf, no person, either by himself or by any other person on his behalf, shall- (a) manufacture for sale or for distribution- (i) any misbranded, adulterated or spurious Ayurvedic, Siddha or Unani drugs; (ii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true list of all the ingredients contained in it; and 22 Drugs and Cosmetics Act, 1940 (iii) any Ayurvedic, Siddha or Unani drug in contravention of any of the provisions of this Chapter or any rule made thereunder; (b) sell, stock or exhibit or offer for sale or distribute, any Ayurvedic, Siddha or Unani drug which has been manufactured in contravention of any of the provisions of this Act, or any rule made thereunder; (c) manufacture for sale or for distribution, any Ayurvedic, Siddha or Unani drug, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter by the prescribed authority: Provided that nothing in this section apply to Vaidyas and Hakims who manufacture Ayurvedic, Siddha or Unani drug for the use of their own patients: Provided further that nothing in this section shall apply to the manufacture, subject to the prescribed conditions, of small quantities of any Ayurvedic, Siddha or Unani drug for the purpose of examination, test or analysis.

14. Section 33G of the Drugs and Cosmetics Act, 1940 reads as under:-

'33G. Inspectors.-

(1) The Central Government or a State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government as the case may be.

(2) The powers which may be exercised by an Inspector and the duties which may be performed by him and the conditions, limitations or restrictions subject to which such powers and duties may be exercised or performed shall be such as may be prescribed.

(3) No person who has any financial interest in the manufacture or sale of any drug shall be appointed to be an Inspector under this section.

(4) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860) and shall be officially subordinate to such authority as the Government appointing him may specify in this behalf.'

15. Section 33M of Act reads as under:-

'33M. Cognizance of offences.-(1) No prosecution under this Chapter shall be instituted except by an Inspector 2 [with the previous sanction of the authority specified under sub-section (4) of section 33G].

(2) No Court inferior to that 3 [of a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter.

16. Bare reading of section 32 of chapter IV and 33-M of chapter IVA, it is evident that there is procedural difference for launching prosecution as well as trial of offences. Section 32 postulates that no prosecution shall be launched under chapter IV of Act except by Inspector or any gazetted officer of Central Govt. or State Govt. authorized in writing in this behalf by Central Govt. or State Govt. by general or special order made in this behalf or by the person aggrieved or by a recognized consumer association. Further, no court inferior to that of Sessions shall try an offence punishable under Chapter IV i.e. pertaining to general Drugs and Cosmetics. Whereas in terms of section 33-M of chapter IVA, it is quite different; it says prosecution has to be launched by inspector with previous sanction of authority specified under sub section 4 of section 33- G of Act. The trial of case has to be conducted before Metropolitan Magistrate or a Judicial Magistrate of the first class.

17. Further appointment of inspectors for launching prosecution under chapter IV and IVA of Act are quite different. For launching prosecution in chapter IV inspectors are appointed under section 21 of Act, whereas for launching prosecution under chapter IVA of Act, the inspector are appointed under section 33 G of Act. Section 33G deals with appointment of the Inspectors which says that the Central Government or a State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having certain prescribed qualifications and it has laid down their duties, functions who could launch prosecution for breach of any of the provisions relating to Ayurvedic, Siddha or Unani drugs .

18. So provisions of Chapter IVA of Act deals with special branch of medicines like, Ayurvedic, Siddha and Unani drugs and it contains complete procedure and authority who would be competent to launch prosecution. As already stated under Section 33G (4) of the Act, it is only inspector who is appointed by Central Govt. or State Govt. by notification in official Gazette is competent to launch prosecution. The Inspector appointed under Section 21 occurring under Chapter IV of the Act is, thus, not competent to launch prosecutions for breach of violation of any provision of chapter IVA of Act.

19. Admittedly, in the present case, respondent No.1 has not been appointed in terms of Section 33G, but he has been appointed in terms of Section 21 of the Act;

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the respondent in his objections has categorically stated that Drug Inspector, Jammu (respondent no.1 herein) is an Inspector appointed in the exercise of powers conferred by Section 21 of the Drugs and Cosmetic, Act 1940 under SRO No. 288 dated 28.07.1989. Therefore, as per law, he was not competent to prosecute the petitioners for the offences under Chapter IV-A which deals with Ayurvedic, Siddha and Unani Drugs. The only Inspector appointed by the Central Government or State Government under Section 33-G was authorized to launch prosecution for the alleged offences, if any, committed under Chapter IV-A of the Act. Therefore entire prosecution launched by inspector appointed under section 21 of Act for violation of provision of provisions of Chapter IVA of Act is without jurisdiction and falls under Exception as specified by Apex Court in AIR 1992 SC 604 in case titled State of Haryana v. Bhajan Lal, where there is express legal bar engrafted under section 33M of the Act to institute and continue the proceedings and same are liable to be quashed. 20. In this view of the matter, the instant petition filed under Section 561-A Cr.P.C. is, accordingly, allowed and the impugned proceedings initiated in Case No.202/2010 titled Drug Inspector Zone-1, Jammu vs. Bharat Bhushan Mantoo and ors., pending before the learned Chief Judicial Magistrate, Jammu, against the petitioners are herby quashed.
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