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2008 DIGILAW 145 (AP)

Perumalla Subba Rao v. State of A. P.

2008-02-21

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
JUDGMENT (L. Narasimha Reddy, J.) The petitioner, who is common in both the revisions, was tried for the offence under Section 18 of the Drugs and Cosmetics Act, 1940 (for short 'the Act') in three separate cases, namely C.C.Nos. 35 and 34 of 1993 and 111 of 1996 on the file of the Additional Munsif Magistrate, Sattenapalli. Thetrial Court convicted him for various offences under the provisions of the Act and imposed different punishments, separately in the three cases. Aggrieved thereby, the petitioner filed CrI.A.Nos. 79 and 80 of 1998 on the file of I Additional Sessions Judge, Guntur, against the judgments in C.C.Nos. 35 and 34 of1993 respectively and CrI.A. No. 625 of 2001 on the file of IV Additional Sessions Judge, Guntur, against the judgment in C.C.No. 111 of 1996. The criminal appeals were dismissed. Hence, the petitioner filed these two criminal revision cases, and Crl.R.C.No. 528 of 2002. 2. Crl. R.C. No. 528 of 2002 was heard by a learned Single Judge. Through the judgment, dated 31-03-2006, the learned Single Judge held that the prosecution did not even accuse the petitioner of manufacturing the drug in question and in that view of the matter, the initiation of prosecution against him is untenable. Accordingly, he allowed the revision and set aside the conviction and sentence against the petitioner. 3. These two revisions were listed for hearing before another learned Single Jude. On 20-06-2007, the following order was passed: "Both these revisions raise some important questions of law. Similar matter, in the case of the petitioner, has already been allowed by another Bench of this Court, which in my view needs reconsideration. Therefore, let both these revisions be placed before a Division Bench, after obtaining necessary orders from the Hon'ble the Chief Justice." 4. In view of this order, these two revisions are posted before a Division Bench. 5. Though no specific question or the subject matter of discussion is identified in the order of reference, we are of the view that the interpretation of Section 18 of the Act arises for consideration in the context of an allegation made against a dealer. 6. Mrs. Shanti Neelam, the learned counsel for the petitioner submits that her client is not a manufacturer and, admittedly, he holds a licence of dealership. 6. Mrs. Shanti Neelam, the learned counsel for the petitioner submits that her client is not a manufacturer and, admittedly, he holds a licence of dealership. She contends that when the allegation is in relation to the sub-standard nature of the product or misbranding thereof, the only person that could have been proceeded against is the manufacturer and not the dealer. 7. The learned Public Prosecutor, on the other hand, submits that Section 18(c) of the Act takes in its fold not only the manufacturer, but also the dealer and when once it was found that the product dealt with by the petitioner was found to be sub-standard and was misbranded, the petitioner is liable to be punished. He contends that the judgments of the Courts below do not warrant any interference. 8. We proceed on the assumption that the prosecution proved the allegation that the sample drawn from the petitioner was found to be of sub-standard nature and was also misbranded. Sitting in a revision under Section 397 Cr.P.C. we cannot reappraise the evidence. Therefore, the only question that arises for consideration is as to whether a dealer can be prosecuted either for misbranding a product or for manufacturing of a sub-standard product. 9. Section 18 of the Act reads as under: Prohibition of manufacture and sale of certain drugs and cosmetics:- From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf. no person shall himself or by any other person on this behalf:- (a) Manufacture of sale (or for distribution), or sell, or stock or exhibit (or offer) for sale, or distribute- (i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious; (ii) any cosmetic which is not of a standard quality or is misbranded or spurious; (iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof (the true formula or list of active ingredients contained in it together with the qua entities thereof); (iv) any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims (to prevent, cure or mitigate)any such disease or ailment. Or to have any such other effect as may be prescribed; (v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended; (vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made there under (b) sell, or stock or exhibit (or offer) for sale, or distribute any drug (or cosmetic) which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made there under; (c) manufacture for sale (or for distribution) or sell, or stock or exhibit (or offer) for sale, or distribute any drug (or cosmetic). except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter: 10. From a perusal of this Section, it becomes clear that three different situations are dealt with by it under Clauses (a), (b) and (c). Clause (a) exclusively deals with the process of manufacture of the product meant for sale, distribution or stocking. The prohibition contained under this provision is that no person shall manufacture for sale, distribution or stocking any drug, which is not of a standard quality nor shall the product be misbranded, adulterated or spurious. All the activities, in turn, are referable to the activity of manufacture. Unless an individual is accused of manufacturing a drug, which is sub-standard in quality or is misbranded, adulterated or spurious, he cannot be prosecuted under this provision. Admittedly, the petitioner is not a manufacturer. Clause (b) deals with the sale, stocking or exhibition for sale or distribution or a drug which has been imported or manufactured in contravention of the Act or any Rule made there under. The allegation against the petitioner is not that he has imported or manufactured any drug. By stretching with the provision to certain extent, the petitioner can be brought under this provision by alleging that a product was manufactured in contravention of the provisions of the Act and that he sold the same. That, however, was not the allegation nor Section 18(b) of the Act was invoked. Clause (c) prohibits manufacture, sale, stocking or exhibition except under on in accordance with the licence. It is not in dispute that the petitioner holds licence as a dealer. Therefore, this provision does not get attracted. 11. That, however, was not the allegation nor Section 18(b) of the Act was invoked. Clause (c) prohibits manufacture, sale, stocking or exhibition except under on in accordance with the licence. It is not in dispute that the petitioner holds licence as a dealer. Therefore, this provision does not get attracted. 11. It has already been pointed out that the occasion to invoke Section 18(a) of the Act would arise, if only, a person is accused of manufacturing a drug of sub-standard quality or where he is accused of misbranding or adulterating it. The allegation of sale of a misbranded or sub-standard drug does not constitute the substance of a change under Section 18(a) of the Act. 12. The learned Single Judge, who disposed of Crl.R.C.No. 528 of 2002, took note of the same and acquitted the petitioner. We are not persuaded to take any different view. 13. Therefore, the criminal revision cases are allowed and the conviction and sentence against the petitioner are set aside.