w w w . L a w y e r S e r v i c e s . i n



State rep. by the Drugs Inspector, O/o. Director of Drugs Control, Tamil Nadu, Chennai v/s M/s. National Pharmaceuticals [A-3], A Division of Rider Pharmaceuticals Pvt. Ltd., Rep. by Kamalchand Jain, Director & Another


Company & Directors' Information:- G S CONTROL PRIVATE LIMITED [Amalgamated] CIN = U29199DL2002PTC118048

Company & Directors' Information:- G DRUGS AND PHARMACEUTICALS LIMITED [Amalgamated] CIN = U24239PB1997PLC020581

Company & Directors' Information:- B S P PHARMACEUTICALS LIMITED [Active] CIN = U24231GJ1987PLC009556

Company & Directors' Information:- G P T PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24233TG2009PTC064156

Company & Directors' Information:- S R DRUGS PVT LTD [Active] CIN = U24231MH1982PTC027442

Company & Directors' Information:- J M DRUGS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U24100MH2010PTC203799

Company & Directors' Information:- A N PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24233DL2000PTC108617

Company & Directors' Information:- P AND B PHARMACEUTICALS LIMITED [Active] CIN = U24230MH1978PLC020846

Company & Directors' Information:- E L C PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24239DL1998PTC097310

Company & Directors' Information:- V C PHARMACEUTICALS (INDIA) PRIVATE LIMITED [Active] CIN = U24230KL2012PTC031429

Company & Directors' Information:- G N K DRUGS CO PVT LTD [Active] CIN = U24246WB1979PTC031913

Company & Directors' Information:- C I PHARMACEUTICALS PVT. LTD [Active] CIN = U24233WB1988PTC045057

Company & Directors' Information:- M J PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24230MH1996PTC101370

Company & Directors' Information:- R. J. PHARMACEUTICALS (INDIA) PRIVATE LIMITED [Under Liquidation] CIN = U24232RJ1994PTC008899

Company & Directors' Information:- R P L (INDIA) PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24239DL2002PTC115402

Company & Directors' Information:- J S CONTROL PRIVATE LIMITED [Active] CIN = U31401MH1984PTC034570

Company & Directors' Information:- L S K PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231KA1990PTC011299

Company & Directors' Information:- P P PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24232WB2003PTC096731

Company & Directors' Information:- F C PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24239GJ2007PTC051567

Company & Directors' Information:- DRUGS INDIA PVT LTD [Active] CIN = U24232AS1973PTC001457

Company & Directors' Information:- G D S J PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24239DL2001PTC109888

Company & Directors' Information:- RIDER PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231TN1997PTC038170

Company & Directors' Information:- S S M PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24232RJ1982PTC002502

Company & Directors' Information:- S S PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24231UP1982PTC005587

Company & Directors' Information:- S P M DRUGS PRIVATE LIMITED [Active] CIN = U26916TZ1988PTC002198

Company & Directors' Information:- A B R DRUGS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069200

Company & Directors' Information:- M A S PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U51397PB2004PTC027688

Company & Directors' Information:- B V CONTROL INDIA PRIVATE LIMITED [Active] CIN = U31909KA2021PTC147797

Company & Directors' Information:- CONTROL P PRIVATE LIMITED [Active] CIN = U72900WB2020PTC241252

Company & Directors' Information:- Z X DRUGS PRIVATE LIMITED [Active] CIN = U51397HR2007PTC037275

Company & Directors' Information:- A V PHARMACEUTICALS PRIVATE LIMITED [Amalgamated] CIN = U24232DL1999PTC098651

Company & Directors' Information:- P G PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC039757

Company & Directors' Information:- E M PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24239MH1992PTC066216

Company & Directors' Information:- B D PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24233WB2009PTC132243

Company & Directors' Information:- A G D PHARMACEUTICALS PVT LTD [Strike Off] CIN = U24231KL1984PTC003885

Company & Directors' Information:- G S DRUGS PRIVATE LIMITED [Strike Off] CIN = U24231UP1999PTC024324

Company & Directors' Information:- S T PHARMACEUTICALS PVT LTD [Strike Off] CIN = U51909WB1989PTC047031

Company & Directors' Information:- N V K PHARMACEUTICALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U24296UP2016PTC082942

Company & Directors' Information:- G K D PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231WB1999PTC089334

Company & Directors' Information:- A P DRUGS PVT LTD [Active] CIN = U24232CH1988PTC008285

Company & Directors' Information:- C F PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231TN1982PTC009598

Company & Directors' Information:- M D PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232WB2008PTC121471

Company & Directors' Information:- I. S. PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24306KA2016PTC097524

Company & Directors' Information:- A M PHARMACEUTICALS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U24233KL2010PTC026018

Company & Directors' Information:- B. C. PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U51900UP2018PTC109946

Company & Directors' Information:- M M PHARMACEUTICALS LIMITED [Strike Off] CIN = U24231TN1982PLC009714

Company & Directors' Information:- S AND S PHARMACEUTICALS INDIA PVT LTD [Strike Off] CIN = U24232CH1984PTC005799

Company & Directors' Information:- N C PHARMACEUTICALS PVT LTD [Strike Off] CIN = U24239HP1986PTC006997

Company & Directors' Information:- R G PHARMACEUTICALS CO PVT LTD [Strike Off] CIN = U24231HP1978PTC003877

Company & Directors' Information:- B M P C DRUGS PVT LTD [Under Liquidation] CIN = U24232WB1969PTC027512

Company & Directors' Information:- B M G PHARMACEUTICALS PVT LTD [Under Liquidation] CIN = U24232WB1974PTC029532

Company & Directors' Information:- M S PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231UP1995PTC018120

Company & Directors' Information:- B G PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231OR2002PTC006872

Company & Directors' Information:- D R P S PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232UP2004PTC028820

Company & Directors' Information:- K N B PHARMACEUTICALS LIMITED [Strike Off] CIN = U24239CH1996PLC018286

Company & Directors' Information:- J S I PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232UP1998PTC023778

Company & Directors' Information:- R A DRUGS PVT LTD [Strike Off] CIN = U24232CH1988PTC008291

Company & Directors' Information:- B I PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24231CH1997PTC019728

Company & Directors' Information:- J G PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231DL1987PTC027452

Company & Directors' Information:- P K DRUGS PVT LTD [Strike Off] CIN = U24200TG1988PTC008217

Company & Directors' Information:- J N PHARMACEUTICALS LIMITED [Strike Off] CIN = U24230TG1996PLC023652

Company & Directors' Information:- J AND J PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24119OR1973PTC000584

Company & Directors' Information:- S D G DRUGS PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U74120UP2012PTC052647

Company & Directors' Information:- C W C PHARMACEUTICALS PVT. LTD. [Active] CIN = U24231HR1990PTC030903

Company & Directors' Information:- A J S PHARMACEUTICALS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U24232KA1972PTC002273

Company & Directors' Information:- R P DRUGS PVT LTD [Strike Off] CIN = U24231DL1977PTC008703

Company & Directors' Information:- A C PHARMACEUTICALS PVT LTD [Active] CIN = U51397WB1970PTC027869

Company & Directors' Information:- CHENNAI DRUGS & PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U33112TN1997PTC038132

Company & Directors' Information:- R K PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232DL2006PTC154640

Company & Directors' Information:- A. PHARMACEUTICALS PVT LTD [Strike Off] CIN = U24232DL1999PTC100973

Company & Directors' Information:- N G PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24100MH2010PTC202028

Company & Directors' Information:- S V N PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24230MH2005PTC155731

Company & Directors' Information:- S. V. G. PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24297MH2010PTC202540

Company & Directors' Information:- G M DRUGS PRIVATE LIMITED [Strike Off] CIN = U24232UP2001PTC026114

Company & Directors' Information:- V. JAIN PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U52100UP2017PTC089625

Company & Directors' Information:- K. D. PHARMACEUTICALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U74999UP2016PTC084198

Company & Directors' Information:- A. V. DRUGS PRIVATE LIMITED [Active] CIN = U24231JK1980PTC000462

Company & Directors' Information:- Y. R. PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232CH2011PTC032883

Company & Directors' Information:- A. B. PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U51909AS2012PTC011351

Company & Directors' Information:- N. S. PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U52311JH2007PTC012709

Company & Directors' Information:- J A PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24232DL2005PTC136777

Company & Directors' Information:- S P R PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24232DL2005PTC137405

Company & Directors' Information:- S N DRUGS PRIVATE LIMITED [Strike Off] CIN = U24232DL2008PTC186129

Company & Directors' Information:- A D DRUGS PRIVATE LIMITED [Strike Off] CIN = U24297DL2012PTC240610

Company & Directors' Information:- D F L PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U51101DL2014PTC270743

Company & Directors' Information:- A R K PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U74120DL2014PTC266920

Company & Directors' Information:- N N PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U33111BR2012PTC018665

Company & Directors' Information:- J. R. DRUGS PRIVATE LIMITED [Strike Off] CIN = U24230GJ2012PTC069566

Company & Directors' Information:- V AND B PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24290UP2020PTC133785

Company & Directors' Information:- M D PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24290MH2021PTC360217

Company & Directors' Information:- B A B DRUGS LTD [Strike Off] CIN = U24232WB1987PLC042646

Company & Directors' Information:- U V PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U99999MH1998PTC117667

Company & Directors' Information:- J. V. PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24239MH2009PTC189669

Company & Directors' Information:- K R R PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232TG2008PTC062007

Company & Directors' Information:- A P PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24233TG2008PTC062019

Company & Directors' Information:- C K PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24233UP2007PTC033596

    CRL.A. No. 108 of 2010

    Decided On, 09 June 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE M. NIRMAL KUMAR

    For the Appellant: M. Prabhavathy, APP. For the Respondents: R1, No Appearance, R2, N. Chandrasekaran, M.F. Shabana, Advocates.



Judgment Text


(Prayer: Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, to allow this appeal and set aside the judgment of acquittal of the respondent/accused [A-3 to A-7] passed by the learned IV Metropolitan Magistrate, Saidapet, Chennai in C.C.No.7457 of 2002, dated 14.11.2006, convict the respondents/accused [A-3 & A-4] for the offence framed against them, pass sentence against them in accordance with law.)

1. This Criminal Appeal arises out of judgment of acquittal of A3 and A4/respondents rendered by the learned IV Metropolitan Magistrate, Saidapet, Chennai in C.C.No.7457 of 2002, dated 14.11.2006.

2. There are totally seven accused in C.C.No.7457 of 2002, namely M.Vijayakumar/A1, V.Prabhu/A2, M/s.National Pharmaceuticals, Division of Ridu Pharmaceuticals Private Limited/A3, represented by its Director A4/Kamal Chand Jain, G.Susilkumar/A5, Nareshkumar/A6, M.Rajan/A7. A4 to A6 are the Directors of A3 company and A7 is its Manager.

3. On conclusion of trial, the trial Court acquitted A3 to A7 and found A1 and A2 guilty and convicted them under Section 18(a)(i) r/w Section 17-B(b)(e) & (d) r/w Section 27(c) of the Drugs and Cosmetics Act, 1940 and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.5,000/- each, in default to undergo three months simple imprisonment, against which A1 and A2 preferred an appeal before the learned V Additional Sessions Judge, Chennai in C.A.Nos.327 & 335 of 2006. The learned V Additional Sessions Judge, Chennai by Judgment dated 17.07.2007, set-aside the judgment of trial Court and acquitted A1 and A2 from the charges levelled against them. As against the Judgment of acquittal of A3 and A4/respondents, the State/appellant has filed this present appeal.

4. The brief facts of the case is as follows:-

(i) One Sengaiyan of Gummidipoondi manufactured and sold 800 vials spurious Fortum Injections which is a patented medicine manufactured by the firm M/s.Glaxo India Limited and sold them to one Devarajan of Minjur. The said Devarajan sold the said drugs to A1/Vijayakumar, who in turn distributed to distributors and also to A2/V.Prabhu. Out of his stock, A1 sold 360 vials of Fortum Injections to A2, from A2 it reached A3 who sold to PW2/M/s.Kalapan Medical, Indira Nagar, Adyar and St.Isable Hospital Pharmacy. Based on the information about the spurious drugs namely Fortum Injections available in the market, an investigation was carried out by the Drugs Control Department at various places. During one such investigation, PW1, the Drug Inspector, Adyar Range, on 13.12.1999 found one gram of Fortum Injection with PW2, M/s.Kalpana Medical, Indira Nagar, Adyar and seized the drug under Form 16 and Mahazar in presence of two independent witnesses. The Proprietor of M/s.Kalpana Medicals/PW2 informed that the Fortum Injection was purchased from A3 firm viz., National Pharmaceuticals, Chennai and produced the purchase bill/Ex.P6. PW2 replied by letter dated 31.03.2000 [Ex.P9] that the spurious drugs was purchased from the 1st respondent/A3 under purchase bill No.153170, dated 12.08.1999 [Ex.P6]. From the purchase bill, it is found that the Fortum Injection pertains to Lot No.N73. On physical verification of the outer cover of Injection, it is seen as Lot No.N730. PW2 was prosecuted for the same and pleaded guilty in C.C.No.922 of 2001 and he paid the fine amount. Notices were sent to A3 to A7 calling for explanation. On 12.12.2001, A3 to A7 sent replies [Exs.P23 to 26], stating that Fortum Injections were purchased by them from M/s.Selvam Pharmacy at Mylapore and further stated that the computer available with them could print only seven digits from left to right. Since the batch numbers (LOTN 731) comes eight digits, the computer ignored the last digit which is purely a clerical mistake.

(ii) PW1, thereafter, visited M/s.Selvam Pharmacy, Mylapore and found the pharmacy being closed and vacated and its Proprietor was no more. Thereafter, PW1 handed over the investigation to PW5, who continued the investigation and came to know about Sengaiyan of Gummidipoondi and Deverajan of Minjur who sold Fortum Injections to A1. In the meanwhile, the CBCID, Andhra Pradesh and CBCID Chennai, Metro, registered a case, conducted investigation. PW5 visited St.Isabel Hospital Pharmacy, got the particulars of purchase of Fortum Injections and sent notice to the M/s.Glaxo India Limited and examined them. A1 and A2 were arrested by CBCID police, recorded confession statements, 57 vials were seized from A1’s shop by PW12 in the presence of PW13 and PW15. The spurious drug/MO1 which was seized from PW2 was not sent for chemical analysis, since only one vial was available and it was not properly stored. PW6/the Pharmacist of M/s. Glaxo Company, compared physically MO1 with MO2 and gave Ex.P35 found difference in outer label. Hence, a complaint has been filed before the trial Court.

5. Before trial Court, prosecution examined 16 witnesses and marked 50 documents and seized 2 materials objects. On the side of the defence, no witnesses were examined and no documents were marked.

6. The learned Additional Public Prosecutor appearing for the appellant/State submitted that based on information about spurious drug Fortum Injection selling in the market, investigation was carried out by the Drugs Control Department, Chennai, at various places. During such investigation, PW1/the Drug Inspector, Adyar Range on 13.12.1999 found one vial of Fortum Injections 1gm at the pharmacy of PW2, who is the Proprietor of M/s.Kalpana Medicals, Adyar and seized the drug under Form 16 and mahazar in the presence of two independent witnesses. The bill produced by PW2 for purchasing Fortum Injection contained batch number LOTN 73, but in the outer cover, it was found as LOTN 730. PW2 informed that he purchased the Fortum Injection from A3’s firm. Notice was sent to A4 to A7, who are the Directors and Manager of A3 firm, to furnish the details. On receipt of the same, on 12.12.2001 they replied that the computer available with them could not print eight digits, the last digit was not printed in the bill and further stated that Fortum Injections were purchased by them from M/s.Selvam Pharmacy at Mylapore. When PW1 went to M/s.Selvam Pharmacy, Mylapore, it was found that the pharmacy was closed and vacated, since the Proprietor has died. PW1 spoke about conducting inspection at the shop of PW2, seizing spurious drugs in the presence of independent witness PW3, sending notices to A3 to A7. A3 admitted in his reply dated 12.12.2001 that they had supplied one gram vial of Fortum Injections to PW2 under Invoice No.153170 dated 12.08.1999 and the Fortum Injection was purchased from M/s.Selvam Pharmacy but they failed to produce any purchase bill.

7. The learned Additional Public Prosecutor further submitted that PW4/the Medical Superintendent, St.Isable Hospital, Myalpore, Chennai, stated the fact that the respondents had supplied 60 vials of Fortum Injections in LOTN 73 under Invoice No.151398 dated 07.08.1999 [Ex.P13] of which 57 vials were used for patients and did not use the remaining three vials, due to discolouration. PW4 further stated about purchase of 19 vials from M/s.Moti Company and handed over remaining three vials purchased from A3 firm and 19 vials purchased from Moti and Company to the Medical Representative of M/s.Glaxo Company, who is the original manufacturer to confirm the quality of the medicine. In Ex.P13, the batch number is mentioned as LOTN 73, not as LOTN 730.

8. A4 in his reply dated 12.07.2001 [Ex.P23] admitted that they supplied Fortum Injection to M/s.Kalpana Medicals, Indira Nagar, Adyar/A2. Further, A4 could not give any bill for purchasing of six vials from M/s.Selvam Pharmacy as could be seen from Ex.P23. PW6, the Analyst of M/s.Glaxo India Private Limited had verified and compared MO1, the Fortum Injection, seized from M/s.Kalpana Pharmacy with standard vial MO2, which was brought by him. PW6 has given his report [Ex.P35] stating that MO1 was a spurious drug. Further, PW8, the Regional Manager of M/s.Glaxo Company produced the distribution details [Ex.P37] and PW7 and PW16 had also produced the documents in this regard. The seized MO1 was produced before the learned IV Metropolitan Magistrate, Saidapet, Chennai on the next day of seizure i.e., on 14.12.1999 [Ex.P7]. The admission and conviction of PW2 for non production of purchase bill in C.C.No.922 of 2001 will not affect the case of the prosecution.

9. It is further submitted by the learned Additional Public Prosecutor that as per Section 23(4) of the Drugs and Cosmetics Act, 1940, the Inspector should restore one portion of a sample to the person from whom he takes it. In this case, only one vial was seized. Hence it could not be sent to the Government Analysis for test. The Fortum Injection which was available in the said St.Isable Hospital was sent for analysis and found that the drug was not of standard quality by the Government analysis and a separate case has been initiated against M/s.Moti and Company, which is pending trial on the file of the III Assistant City Civil Court, Chennai in C.C.No.34 of 2014.

10. The learned Additional Public Prosecutor further submitted that it is proved by Ex.P6, Fortum Injections LOTN 730 MO1 seized from the premises of PW2, was supplied by the respondents. The respondents failed to produce the purchase bill for batch number LOTN 730. M/s.Glaxo India Private Limited, the original manufacturer of Fortum Injection had not supplied the Fortum Injection to the respondents. Further PW6 on physical examination of MO1 stated that MO1 is not the product of M/s.Glaxo India Private Limited. The respondents knowing well that they were dealing with spurious medicine, in order to hide the fact had deliberately prepared the sales Invoice by not mentioning the correct batch numbers. The respondent could not be exempted as per Section 19(3) (b) of the Drugs and Cosmetics Act, 1940, since they have purchased spurious drugs in batch number LOTN 730 from A1 and A2 without producing the bill and sold the same by manipulating the batch number. In this case PW1 is the Drug Inspector, Adyar Range, who conducted the verification and inspection of Drugs in the premises of PW2, M/s.Kalpana Pharmacy and seized MO1. PW2 is the Proprietor of M/s.Kalpana Pharmacy who admitted about verification, seizure of MO1 and purchase from A3, PW3 is the witness for the seizure of MO1. PW4 and PW14 are the witnesses from St.Isable Hospital, who stated about the purchase of Fortum Injection from the respondents. PW11 is the Inspector of CBCID Chennai, Metro who stated about arrest of Sengaiyan and Devarajan by CBCID Police. From their confession, it is seen that A1 in this case had purchased 800 vials, out of which 360 vials was purchased by A3 through A2. A4 to A7 who are the Directors and Manager of A3 firm has knowingly dealt with the spurious drugs.

11. Further, MO1 was not manufactured by M/s.Glaxo India Private Limited, which is proved by PW6 by comparing MO1 with MO2. The witnesses from M/s.Glaxo India Limited PW7, PW8 and PW16 clearly stated the batch numbers of Fortum Injection and supply of the same to its authorized dealer M/s.Glaxo had not supplied any Fortum Injection to A3. The witnesses/PW2 and PW3 had clearly spoken about the seizure of MO1 by PW1. The Drug Inspectors PW1, PW5, PW9, PW10 and PW12 have clearly spoken about the Special Investigation conducted by them. PW5 conducted major portion of the investigation in this case, sent notices to A3 to A7 and received the reply. In the reply [Exs.P23 to P26] it is found that A3 to A7 admitted about the supply of Fortum Injection to PW2. The missing of last digit of batch numbers was due to constrain of the computer used by them. This Fortum Injection was purchased by them from M/s.Selvam Medicals. When PW1 and PW5 went to the premises of M/s.Selvam Medicals, it was closed and vacated. The Proprietor of Selvam Pharmacy was not available. Thereafter, the Controller of Drug lodged a complaint to E-1 Mylapore Police in Crime No.166 of 1999, later it was transferred by the order of DGP to the CBCID Police, who arrested Sengaiyan and Devarajan, they confessed about manufacture and selling of spurious drugs. The said Devarajan sold the spurious drugs to A1 medical shop, 57 vials of Fortum Injection was seized from A2, who dealt with spurious drugs handed over the same to A3. Thereafter A3 had supplied to PW2 and St.Isable Hospital which could be seen from the confession of Sengaiyan and Devarajan and was also on the confession of A1 and A2.

12. The trial Court failed to look into these facts and acquitted the respondents/A3 and A4 on a wrong premise. Hence, prayed for setting aside the judgment of trial Court.

13. The learned counsel for the respondent submitted that in this case the said Sengaiyan and Devarajan had not been arrayed as accused. In view of the same, any confession given by them is not admissible as per Section 30 of the Indian Evidence Act. It is seen from the evidence of PW11, the Inspector of Police, CBCID Metro Chennai that PW5/Drug Inspector collected statements of A1 and A2 from PW11. Thereafter, A1 and A2 were compelled to give statement implicating A3 to A7 in this case. PW1 conducted inspection on the shop of PW2 on 13.12.1999 and seized one vial of Fortum Injection/MO1 and the same was sent to the Court on 14.12.1999. As per the condition prescribed the Fortum Injection has to be kept below 25 degree centigrade and stored in a dark and cold place. Admittedly, in this case, the said medicine was not preserved as per the conditions. The said drug was also not sent to Government analysis. A1 and A2 who were convicted by the trial Court preferred appeals before the learned V Additional Sessions Judge in C.A.Nos.327 & 335 of 2006. Both the appeals were allowed by the Judgment dated 17.07.2007, against which no appeal has been filed.

14. The learned counsel for the respondents submitted that the witnesses from M/s.Glaxo India Private Limited admitted that they have not produced the register for manufacture of concerned batch of Medicine which would prove and the fact that what is produced and supplied to whom cannot be correlated and proved. The practise of purchasing of their products from the stockist by Pharmacist and others were vouge in the trade. PW6, the Analyst of M/s.Glaxo India Private Limited admitted that no chemical test was conducted in the laboratory. Further he does not have any knowledge of printing technology and he does not have expertise in comparison of words and figures. Thus his report Ex.P35 is of no value.

15. In this case admittedly, MO1 was already marked as material object in C.C.No.922 of 2001 in which PW2 was prosecuted, who pleaded guilty on 25.04.2001 and has also paid the fine amount. Thereafter, PW5 filed a petition for return of the same on 07.12.2001 and once again it is marked as material object in this case on 26.03.2004.

16. In such circumstances, coming into existence of Ex.P35 causes a doubt on which basis the appellant had proceeded against the respondents. Hence, the trial Court had given a well reasoned judgment of acquittal, which need not be interfered with.

17. In order to substantiate his arguments, the learned counsel for the respondent relied upon the citation of Hon’ble Supreme Court in the case of Amery Pharmaceuticals and another Versus State of Rajasthan reported in (2001) 4 Supreme Court Cases 382 and drawn the attention of this Court in paragraph Nos.11 to 16 that “Where the Hon’ble Supreme Court laid down the obligation of the Drug Inspector (who takes the sample from a retailer) in the case of where the Drug or Medicine has passed from the manufacturer to a wholesaler (a distributor) and then to retailer as for giving portion of the sample would endup by giving it to the retailer and also to the distributor (from whom the retailer bought the drug)”. In this case no such portion of sample was given to the respondents. It is admitted by the appellant that the drug was not sent to the Government Analyst. In view of the same the said citation is of any axiom to the respondent’s contention.

18. This Court considered the rival submissions and perused the materials placed before.

19. It is seen that one Sengaiyan of Gummidipoondi, who manufactured and sold 800 vials of Fortum injections through Devarajan of Minjur, who in turn sold to A1, A2 sold 360 vials to A3 company. A3 to A7 are the Directors and Manager of A3’s firm. A3, the National Pharmaceuticals had sold one vial of Fortum medicine batch LOTN 730 to PW2, the Proprietor of M/s.Kalapana Pharmacy on 12.08.1999 in bill No.153170. On 13.12.1999 PW1 the Drug Inspector Adyar conducted investigation, verified the stocks in M/s.Kalpana Pharmacy and seized MO1. Ex.P6 is the purchase bill produced by PW2. Since the LOT number found in Ex.P6 and in MO1 not tallied, prosecution was launched against PW2 in C.C.No.922 of 2001. PW2 pleaded guilty on 25.04.2001 for not producing the purchase bill for MO1. Notices were sent to A3 to A7 who replied and explained the reason for missing of eight digits due to the computer constrain and further stated that they have purchased the Fortum injection from M/s.Selvam Pharmacy at Mylapore. M/s.Glaxo India Limited had lodged a complaint with the Controller of Drugs about availability of spurious drugs in the name of their product Fortum injection. The controller of Drugs had directed Drug Inspector to conduct investigation in this regard. The Drug Inspectors PW1, PW5, PW9, PW10 and PW12 conducted inspections.

20. During inspection, the involvement of Sengaiyan and Devarajan had come to light, both accused were elusive absconding. In the meanwhile CBCID Andhra Pradesh as well as the CBCID Chennai, Metro had registered a case and was investigating. The said Sengaiyan and Devarajan were arrested, who gave confessions about their involvement in this case. Strangely in this case the said Sengaiyan and Devarajan have not been arrayed as accused. The prosecution wanted to rely on the confession of Sengaiyan and Devarajan in this case which is hit by Section 30 of the Indian Evidence Act.

21. PW11, the Inspector CBCID admitted that he had given the copies of confession to PW5. A1 and A2 had retracted their confession and the witnesses to the confession of A1 and A2 were not examined in this case. Likewise, the witnesses for seizure of medicines from A1 shop had not supported the case of the prosecution. Hence, the confession as well as recovery from A1 and A2 had not been proved and the chain leading to A3 to A7 has snapped. MO1 is seized from PW2, PW2 for seizure of MO1 was prosecuted in C.C.No.922 of 2001 and pleaded guilty and paid the fine amount. That being the admission, Ex.P6 coming into existence becomes doubtful. Further, it is the admitted case that MO1 has not been sent to any Government an

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alysis for chemical examination. 22. PW6, the witness from M/s.Glaxco who physically examined MO1 with MO2, on comparison found difference in printing and font of the letters and stated that MO1 was spurious. PW6 admitted that he is not a person who has acquired any technical knowledge of printing and not an expert. Giving a finding about the drug being spurious, adulterated and misbranded can be done only by a Government analyst and report from the Government analysis will be proof of the same and not from the private manufacturer. Thus the letter Ex.P35 of PW6 is of no consequence. 23. As regards the supply of seizure of Fortum injection to St.Isable Hospital, it is the case that only three vials were left over on the supply of A3 and 19 vials was supplied by M/s.Moti and Company, totally 22 were handed over to one Ramasamy of M/s.Glaxco India Private Limited. The said Ramasamy was not examined in this case. PW4, PW14 as well as the Drug Inspector/PW5 admitted that it cannot be specifically identified which of the three belongs to the respondents among the 22 vials. The appellant had launched a separate prosecution against M/s.Moti and Company, which is pending in C.C.No.34 of 2014 before the concerned Court. In that case, the respondents are not arrayed as accused. The witnesses of M/s.Glaxo Industries admitted that they used to distribute through authorized agents who sell medicines to various pharmacies and thus, trading of Fortum injection of M/s.Glaxo India Private Limited by pharmacist is common in trade. 24. Further, the witnesses PW7, PW8 and PW16 from M/s.Glaxo India Private Limited stated that they are not certain about the batch number which was in circulation and the relevant records could not be produced by them. The seizure from A1 could not be proved. 25. Considering all these aspects, the trial Court on proper analysis of evidence had rightly acquitted the respondents as well as the other accused A5 to A7. In view of the above, this Court finds no reason to interfere with the judgment of the trial Court. Hence, the appeal is dismissed.
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