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2006 DIGILAW 492 (AP)

Gaba Pharmaceuticals Hyd. v. State Of A. P.

2006-04-06

K.C.BHANU

body2006
O R D E R This Criminal Revision case is directed against the judgment, dated 13-8-2002 in Criminal Appeal No.429 of 200` on the file of the V Additional Metropolitan Sessions Judge, Hyderabad. 2.The breif facts that are necessary for disposal of this Revision are that P.W.1 inspected M/s. Thrimurthy Pharma Private limited, Hyderabad and found Gelusil MPS suspension, Batch No.117 manufactured by A1 proprietary ship concern stocked for sale along with other drugs and tok the said drug for test after following the procedure. The sample that has taken by P.W.1 was sent to the Analyst for that the drug in question is not of standard quality as the drug was not confirmed to the labeled claim in respect of Magnesium Hydroxide contend i.e. 110.8 mg out of the labeled claim of 200 mg. Hence the accused has committed an offence punishable under Section 27 (d) of the Drugs and Cosmetics Act, 1940 (for short ‘the Act’) for violating the provisions of Section 18(a) (i) of the Act. 3. Before the trial Court, on appearance of the accused copies of documents were furnished to him as required under Section 207 Cr.P.C. When examined under Section 251 Cr.P.C. the accused denied the offence and pleaded not guilty. 4.To substantiate its case, the prosecution has examined P.Ws.1 to 2 and marked Exs.P.1 to P.14 besides case property, M.O.1. 5.After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. No evidence either oral or documentary was adduced on behalf of the accused. 6. Accepting the evidence of prosecution witnesses, the trial Court found the accused guilty, convicted and sentenced A1 to pay a fine of Rs.5,000 and A2 to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for three months for the offence punishable under Section 27( d) of the Act for violation of Section 18(a) (i) of the Act. On appeal by the accused, the learned Sessions Judge after re-appreciation of entire oral evidence and material available on record, dismissed the appeal confirming the conviction and sentence pased by the trial Court. Challenging the same, this revision has been filed. 7. On appeal by the accused, the learned Sessions Judge after re-appreciation of entire oral evidence and material available on record, dismissed the appeal confirming the conviction and sentence pased by the trial Court. Challenging the same, this revision has been filed. 7. The learned counsel for the petitioners contended that, there is no material filed by the prosecution to show that P.W.1 is the Drug Inspector for the area in which samples were taken and that no material is filed to show, that the sample analyzed by the Analyst is duly appointed by the Government and therefore, he prays to allow the Revision. 8. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the concurrent findings of the Courts below need not be interfered, with in view of the fact that the findings are based upon proper appreciation of evidence on record, that the findings are not shown to be illegal or improper and therefore, he prays to dismiss the Revision. 9. Now the point for consideration is whether the prosecution has proved its case against the accused beyond all reasonable doubt? 10. The revisional jurisdiction of this Court is truncated one. Unless the findings are illegal, improper or incorrect normally this Court will not interfere with the same. Section 20 deals with appointment of Government Analysts, which reads as follows: “ 20 Government Analysts:- (1) The State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Government Analyst for such areas in the State and in respect of such drugs or (classes or drugs or such cosmetics or classes of cosmetics) as may be specified in the notification. (2) The Central Government may also, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Government Analysts in respect of such drugs or (classes of drugs or such cosmetics or classes 4 cosmetics) as may be specified in the notification. (3) Notwithstanding anything ; contained in sub section (1) or sub section (2) neither the Central Government nor a Government shall appoint as a Government Analyst any official not serving under it without the previous consent of the Government under which he is serving. (3) Notwithstanding anything ; contained in sub section (1) or sub section (2) neither the Central Government nor a Government shall appoint as a Government Analyst any official not serving under it without the previous consent of the Government under which he is serving. (4) No person who has any financial interest in the import, manufacture or sale of drugs or cosmetics shall be appointed to be a Government Analyst under sub section (1) or sub section (2) of this section.” A perusal of the above provision makes it clear that by notification in the Official Gazette, the Government can appoint Government Analyst for the purpose of analysis of drugs or cosmetics as specified in the notification. The stand taken by the petitioners is that no such notification is made in the Official Gazette appointing the Analyst for analysis of drugs and cosmetics under the Act. No doubt the report of the Analyst is prima facie proved the offence, but at the same time when the appointment of the Government Analyst is challenged by the petitioners, is to be proved by the prosecution that Public Analyst was duly appointed by the Government by issuing a notification in the Official Gazette. Inspite of objection taken by tie petitioners, the prosecution has not come forward with any such notification in the Official Gazette for the purpose of showing appointment of Public Analyst. 11. It is further contended by the learned counsel for the petitioners that P.W.1 who is the Drug Inspector was not duly appointed by the Government by issuing a notification in the Official Gazette in the area where under samples were drawn and there was evidence on record to show that at the relevant point of time of the incident, P.W. I was working as Drug Inspector in Hayatnagar zone and he cannot have the jurisdiction to lift the samples of Koti zone in Hyderabad. 12. Section 21 deals with appointment of Drug Inspectors, which reads as follows: “21. 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. 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, the drugs or (classes of drugs or cosmetics or classes of cosmetics) in relation to which 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 import, manufacture or sale of drugs or cosmetics) 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 (having the prescribed qualifications) as the Government appointing him may specify in this behalf.” 13. A perusal of Section 21 goes to show that the Government may by notification in the Official Gazette appoint a person to be the Inspector for such area as may be assigned by the State Government. Except Ex.P1, no other document is filed to show that: P.W.1 was duly appointed by the Government by issuing a notification in the Official Gazette for the purpose of taking samples in Koti zone. Ex.P1 is the notification issued by the Government appointing P.W.1 as a Drug Inspector for the entire area i.e., he was initially appointed as Drug Inspector for the entire area, but for the purpose of carry out the objects in the Drugs and Cosmetics Act, the Government has to issue a notification duly notifying the area under which the Inspector can discharge his duties. To substantiate the said contention, the learned counsel for the petitioners placed reliance on the judgment of a Division Bench of Bombay High Court reported in STATE OF MAHARASHTRA V. R.A. CHANDWARKAR AND OTHERS (1) wherein it was held as follows: “The appointment of Drug Inspector can only be through an official Gazette Notification and not otherwise. To substantiate the said contention, the learned counsel for the petitioners placed reliance on the judgment of a Division Bench of Bombay High Court reported in STATE OF MAHARASHTRA V. R.A. CHANDWARKAR AND OTHERS (1) wherein it was held as follows: “The appointment of Drug Inspector can only be through an official Gazette Notification and not otherwise. Further such a notification should also indicate the area in which such a Drug Inspector can operate and exercise his powers and the same should not be left to conjectures and surmises of the public.” It was further held as follows: “The provisions of Section 20 of the Act are mandatory and thus, the State must publish in an Official Gazette the appointment of the Government Analyst specifying therein the area wherein the Government Analyst can operate and also specifying therein the products with which the Government Analyst can test and analyse”. 14. The provisions of Sections 20 and 21 of the Act have not been complied with in spite of the fact that the accused raised objection before the trial Court as well as appellate Court. It is expected that the prosecution to produce the Gazette notification. Since the Gazette notification as published in the Official Gazette has not been placed before the Courts below, illegal and improper findings are given. Further in view of the jurisdiction of the Public Analyst and Inspector has been taken, there is no need to adjudicate the other grounds as contended by the learned counsel for the petitioners. In the above circumstances, the judgment impugned is liable to be set aside. 15. Accordingly, the Criminal Revision Case is allowed setting aside the judgment, dated 13-8-2002 in Criminal Appeal No.429 of 2001 on the file of the V Additional Metropolitan Sessions Judge, Hyderabad. --X--