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2014 DIGILAW 977 (PAT)

Zakir Hussain v. State of Bihar

2014-09-11

ASHUTOSH KUMAR

body2014
ORDER Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. 2. The petitioner has questioned the order dated 28.05.2012 passed by the learned Chief Judicial Magistrate, Patna in Complaint Case No. 355 (C-2) 12 whereby cognizance has been taken against the petitioner under Sections 33-EEA (d) and 33-I of The Drugs and Cosmetics Act, 1940 (hereinafter referred to as “The Act”). 3. One Ashok Kumar Dubey, a Drug Inspector (Ayurveda), lodged a complaint alleging that on the basis of the letter issued by the Joint Commissioner (HQ), Food & Drug Administration, M.S., one Drug Inspector, District Gr. Mumbai (Mumbai) drew a sample of HYPOWER MUSLI capsule, said to have been manufactured by M/S Renovision Export Private Ltd., Federal, A & K Road, Phulwarisharif, Patna. The aforesaid sample was sent to the Government Analyst for testing the genuineness of the drug. The test report in Form 13-A, issued by the Government Analyst, disclosed that the drug was not of standard quality and it was a spurious medicine in terms of Section 33-EEA (d) of the Act. Since the manufacturer of such sample of drug was stated to be M/S Renovision Export Private Ltd., the Proprietor of the said firm, namely, Zakir Hussain was made an accused with a prayer to put him on trial for the offence under The Drugs and Cosmetics Act, 1940. 4. From a bare perusal of the prosecution report, it would appear that there is no statement with respect to the place from where the sample was drawn by the Drug Inspector. Section 23 of the Act deals with the procedure for collection of a sample which is to be sent for analysis. Section 23 of the Act reads as hereunder: “23. Procedure of Inspectors.- (1) Where an Inspector takes any sample of a drug or cosmetic under this Chapter, he shall tender the fair price thereof and may acquire a written acknowledgement therefor. (2) Where the price tendered under sub-section (1) is refused, or where the Inspector seizes the stock of any drug or cosmetic under clause (c) of section 22, he shall tender a receipt therefor in the prescribed form. (2) Where the price tendered under sub-section (1) is refused, or where the Inspector seizes the stock of any drug or cosmetic under clause (c) of section 22, he shall tender a receipt therefor in the prescribed form. (3) Where an Inspector takes a sample of a drug or cosmetic for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he willfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked: Provided that where the sample is taken from premises whereon the drug or cosmetic is being manufactured, it shall be necessary to divide the sample into three portions only: Provided further that where the drug or cosmetic is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug or cosmetic be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same and, where necessary, sealing them. (4) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows:- (i) one portion or container he shall forthwith send to the Government Analyst for test or analysis; (ii) the second he shall produce to the Court before which proceedings, if any, are instituted in respect of the drug or cosmetic; and (iii) the third, where taken, he shall send to the person, if any, whose name, address and other particulars have been disclosed under section 18-A. (5) Where an Inspector takes any action under clause (c) of section 22, - (a) he shall use all despatch in ascertaining whether or not the drug or cosmetic contravenes any of the provisions of section 18 and, if it is ascertained that the drug or cosmetic does not so contravene, forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized; (b) if he seizes the stock of the drug or cosmetic, he shall as soon as may be, inform a Judicial Magistrate and take his orders as to the custody thereof; (c) without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possessor of the drug or cosmetic, he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order under the said clause. (6) Where an Inspector seizes any record, register, document or any other material object under clause (cc) of sub-section (1) of section 22, he shall, as soon as may be, inform a Judicial Magistrate and take his orders as to the custody thereof.” 5. It has been submitted on behalf of the petitioner therefore that there has been a serious breach/violation of the mandatory provision of Section 23 of the Act. The mechanism by which a sample is to be drawn is well set out in the aforementioned section. The purpose is to avoid the prosecution from taking any sample from anywhere and saddling the manufacturer with any prosecution for keeping or selling spurious drug. 6. The mechanism by which a sample is to be drawn is well set out in the aforementioned section. The purpose is to avoid the prosecution from taking any sample from anywhere and saddling the manufacturer with any prosecution for keeping or selling spurious drug. 6. The further contention of the petitioner is that even if the report of the Government Analyst given in Form 13A under Rule 163(5) of The Drugs and Cosmetics Rules, 1945 is taken into consideration, the sample cannot be said to be spurious. The definition of “Spurious drugs” is provided in Section 33-EEA of the Act. An Ayurvedic, Siddha or Unani drug is only deemed to be spurious when it is sold, or offered or exhibited for sale, under a name which belongs to another drug; or if it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive, or bears upon it or upon its label or container the name of another drug, unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug; or if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist; or if it has been substituted wholly or in part by any other drug or substance; or if it purports to be the product of a manufacturer of whom it is not truly a product. 7. The counsel for the petitioner further submits that since the Analyst’s report merely indicates that the sample gives an identification test for the presence of TADALAFIL and it does not give IP and AAS identification, therefore, it is held to be spurious. As has been defined under Section 33-EEA of the Act, such a finding of the Analyst would not make the sample a spurious drug. That apart, since the place from where the sample has been drawn has not at all been stated, there is no proof of the fact that the sample was the one, which was manufactured by the petitioner’s firm or so sold in the open market through the agency of such firm. The possibility of such drug, the sample of which was tested, being tampered by some other agency, cannot be ruled out. 8. The possibility of such drug, the sample of which was tested, being tampered by some other agency, cannot be ruled out. 8. Learned Additional Public Prosecutor for the State on the other hand states that spurious drug was found and the sample was drawn in Mumbai. The aforesaid sample was found to be spurious after analysis by the expert. In that view of the matter, it was urged that the order taking cognizance does not require any interference. Since the drawing of the sample is itself found to be in violation of the requirements laid down under Section 23 of the Act, no prosecution could be launched against the petitioner for anyone of the provisions under The Drugs and Cosmetics Act, 1940. That apart, even the Analyst’s report does not clearly spell out as to how the sample, alleged to have been manufactured by the firm of the petitioner, was spurious. 10. The order taking cognizance, on the basis of the aforementioned discussions, is devoid of merits and, therefore, set aside. 11. The application is allowed.