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Andhra High Court · body

2002 DIGILAW 1262 (AP)

Y. Nagesh v. Drugs Inspector, Nizamabad

2002-10-29

S.R.K.PRASAD

body2002
S. R. K. PRASAD, J. ( 1 ) THE petitioner who is the accused in c. C. No. 838 of 2001 on the file of Judicial first Class Magistrate, Nizamabad, invokes the inherent powers of this Court u/s. 482 cr. P. C. and seeks for quashing of the proceedings on the sole ground that the drug namely rolled Bandage will not come under the definition of Section 3 (b) of Drugs and cosmetics Act, 1940 and the prosecution is liable to be quashed. The learned Public prosecutor contends that it is not a fit case to exercise the inherent powers of this Court and also drawn the attention of this Court to a decision reported in Chimanlal Jagivandas sheth v. State of Maharashtra. ( 2 ) ADVERTING to the said contentions, the only point that arises for consideration is whether the drug namely rolled Bandage supplied will come under the definition of section 3 (b) of the Act. Section 3 (b) of Drugs and Cosmetics Act, 1940 reads as follows: "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 treatment, mitigation or prevention of disease in human beings or animals other than medicines and substances exclusively used or prepared for use in accordance with the Ayurvedic or Unani systems of medicine, and (II) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used to the destruction of vermins or inspects which cause disease in human beings or animals as may be specified from time to time by 1. 1975 Drugs Cases 211. the Central Government by notification in the Official Gazette. The Supreme Court has categorically stated at paras 3 and 4 in the aforesaid decision reported in 1975 Drugs cases 211 as follows: ( 3 ) THOUGH an attempt was made to argue that the said articles had not been proved to be below the prescribed standard, it was subsequently given up. The only question that was argued is whether the said articles are drugs within the meaning of Sec. 3 (b) of the Act. The only question that was argued is whether the said articles are drugs within the meaning of Sec. 3 (b) of the Act. The said section reads: "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 treatment, mitigation or prevention of disease in human beings or animals other than medicines and substances exclusively used or prepared for use in accordance with the Ayurvedic or Unani systems of medicine, and (II) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used to the destruction of vermins 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. ( 4 ) THE said definition of "drug" is comprehensive enough to take in not only medicines but also substances intended to be used for or in the treatment of diseases of human beings or animals. This artificial definition introduces a distinction between medicines and substances which are not medicines strictly so-called. The expression "substances", therefore, must be something other than medicines but which are used for treatment. The part of the definition which is material for the present case is "substances intended to be used for or in the treatment". The appropriate meaning of the expression "substances" in the section is "things". It cannot be disputed, and indeed it is not disputed, that absorbent cotton wool, roller bandages and gauze are "substances" within the meaning of the said expression. If so, the next question is whether they are used for or in "treatment". The said articles are sterilized or otherwise treated to make them disinfectant and then used for surgical dressing; they are essential materials for treatment in surgical cases. Besides being aseptic these articles have to possess those qualities which are utilized in the treatment of diseases. Thus, for instance, in the case of gauze - one of the articles concerned in this appeal - it has to conform to a standard of absorbency in order that it might serve its purpose : otherwise the fluid which oozes is left to accumulate at the site of the wound or sore. Thus, for instance, in the case of gauze - one of the articles concerned in this appeal - it has to conform to a standard of absorbency in order that it might serve its purpose : otherwise the fluid which oozes is left to accumulate at the site of the wound or sore. The Legislature designedly extended the definition of "drug" so as to take in substances which are necessary aids for treating surgical or other cases. The main object of the Act is to prevent sub-standards in drugs, presumably for maintaining high standards of medical treatment. That would certainly be defeated if the necessary concomitants of medical or surgical treatment were allowed to be diluted: the very same evil which the Act intends to eradicate would continue to subsist. Learned counsel submitted that surgical instruments would not fall within the definition and that gauze and lint would fall with in the same class. It is not necessary for the purpose of this appeal to definite exhaustively "the substances" falling within the definition of "drugs"; and we consider that whether or not surgical instruments are "drugs", the articles concerned in this case are. Learned counsel for the appellant sought to rely upon a report of a high powered committee consisting of expert doctors, who expressed the opinion in the report that as the surgical dressings did not come under the purview of the Drugs act, no control on their quality was being exercised. Obviously, the opinion of the medical experts would not help us in construing a statutory provision. We, therefore, hold, agreeing with the High court, that the said articles are substances used for or in the "treatment" within the meaning of Sec. 3 (b) of the Act. In view of the interpretation put on to section 3 (b) of the Act in the above decision stating that the rolled bandage and gauze will fall under the definition of Section 3 (b) of the Act, I disagree with the contention of canvassed by the petitioner counsel that it will not come under the definition of the Act. It is also urged that he has filed Writ Petition before this Court and it is pending. In view of the settled proposition by the Supreme Court in the aforesaid decision, there is no need to postpone the hearing of the case. It is also urged that he has filed Writ Petition before this Court and it is pending. In view of the settled proposition by the Supreme Court in the aforesaid decision, there is no need to postpone the hearing of the case. There is analyst report which shows that the rolled Bandage supplied to D. M. H. O. is substandard. The Magistrate has rightly took cognizance of the offence. In that view of the matter, there is no need to exercise the inherent powers of this Court to quash the proceedings. No other point is canvassed by the learned counsel for the petitioner. In view of the same, the petition is liable to be dismissed. ( 5 ) IN the result, the petition is dismissed.