Applied Nutrition Sciences vs The Drugs Inspector

A. Hariprasad, J.—The writ petition and criminal miscellaneous case are filed challenging a complaint filed by the Drugs Inspector against the petitioners alleging offences punishable under Section 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 (in short, "the Act").

Prayers in the writ petition read as follows:

"(i) to issue a writ in the nature of certiorari or any other appropriate writ or order calling for the records relating to Ext. P9 complaint S.T. No. 176/05 on the file of the Judicial First Class Magistrate Court, Changanassery and quash the same.

(ii) to issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing Respondents 1 and 2 to forbear from interfering with the manufacture, storage, distribution and sale of the Petitioner''s products enlisted under Exhibit P5 catalogue and or initiating any proceedings under the Drugs and Cosmetics Act 1940.

(iii) to issue any other appropriate writ, order or direction which this Hon''ble Court may deem fit and proper in the circumstances of the case."

Allegations, in short, in the complaint are as follows: The complainant/Drug Inspector on 17.01.2002 inspected the business premises of the petitioner in Crl. M.C. and found that certain articles were stocked for sale. According to the averments in the complaint, the articles found at the premises of the petitioner in Crl. M.C. are drugs defined under the Act. Further allegation is that the petitioner in Crl. M.C. has no licence to sell, stock or exhibit allopathic drugs. Therefore, they have committed the above said offences.

Heard the learned Senior Counsel Shri G. Shrikumar for the petitioner in writ petition (manufacturer of the products) and Shri P.P. Jacob, learned counsel for the petitioner in Crl. M.C. Learned Public Prosecutor is also heard.

It will proper to consider the relevant provisions in the Act. Section 3(b) defines:

""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 diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;

(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin 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;

(iii) all substances intended for use as components of a drug including empty gelatin capsules; and

(iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;"

It is the definite case in the complaint that the articles recovered from the premises of the petitioner in Crl. M.C. are allopathic drugs, whereas the petitioners would contend that they are food supplements and therefore, the Act does not have any application at all. Section 18 of the Act deals with prohibition of manufacture and sale of certain drugs and cosmetics coming under the Act. Section 27 of the Act is the penal provision prescribing the penalty for manufacture, sale, etc. of drugs in contravention of the Act.

Learned Senior Counsel drew my attention to Sections 23 and 25 of the Act. Section 23 of the Act deals with the procedure of inspection. It specifically deals with the mode of taking a sample of a drug or a cosmetic falling under the Act. Section 23(4) of the Act reads as follows:

"23. Procedure of Inspectors.-

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(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 18A.

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Section 25 of the Act is quoted hereunder with profit:

"Reports of Government Analysts.- (1) The Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.

(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18A, and shall retain the third copy for use in any prosecution in respect of the sample.

(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under section 18A has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.

(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst''s report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused: cause the sample of the drug or cosmetic produced before the Magistrate under sub-section (4) of section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.

(5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct."

It can be seen that after sending the sample for analysis to a Government Analyst and after getting the report in triplicate, the accused should be given an opportunity to controvert the report in 28 days as prescribed in Section 25(3) and (4) of the Act. In this case, the detection was on 17.01.2002. Learned Senior Counsel submitted that it is not even clear as to whether the sample has been sent to the Government Analyst as required under the Act. Even if that had been done, at this distance of time, there is no point in prosecuting the petitioners without affording them an opportunity to controvert the report visualized under Section 25(3) and (4) of the Act. Hence I find that the prosecution has become infructuous and continuation of the proceedings against the petitioners is an abuse of the process of court.

In the result, both the writ petition and the criminal miscellaneous case are allowed. The complaint pending before the Judicial First Class Magistrate Court, Changanacherry in S.T. No. 176 of 2005 is hereby quashed.

All pending interlocutory applications will stand dismissed.