ISHWAR SINGH BINDRA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) These are two companion appeals by certificates from the judgment of the High Court of Judicature at Allahabad dismissing two petitions under S. 561-A of the Criminal Procedure Code in which the sole question raised related to the true and correct interpretation of S. 3 (b) (i) of the Drugs Act, 1940, as it stood before the enforcement of the Drugs (Amendment) Act, 1962 (Act XXI of 1962) and the Drugs and Cosmetics (Amendment) Act l964 (Act XIII of 1964) .

(2.) As the point involved is common to both the appeals the facts in Cr. Appeal No. 190 of 1965 may be shortly stated. The first two appellants are the partners and the third appellant is the manager of Bindra's Chemical Corporation which carries on the manufacture of medicine and substances in accordance with the Ayurvedic and Unani Systems of medicine at Delhi, Shahdara. The Inspector of Drugs, Agra Region, filed a complaint dated July 2, 1963 in the court of Magistrate, First Class, at Mathura alleging inter alia that on September 20, 1962 when he was carrying out the inspection of the shop of M/s. Frontier Gupta Medical Stores, Mathura, he came across a preparation called Antiphlogistic Plaster manufactured by the aforesaid Corporation. On examining the label it was discovered that although the names of three drugs i. e. Glycerine, Kaolin and Boric Acid which are to be found in Pharmacopoeias prescribed under the Act were mentioned as constituents of the plaster, the label did not bear manufacturing Licence Number and other particulars with which a drug was required to be labelled in accordance with Rule 96 of the Drug Rules, 1945. According to the Inspector this drug fell within the mischief of S. 17 (e) of the Act and was to be deemed to be misbranded as it had not been labelled in the prescribed manner. Moreover the label of the Plaster in question showed that it was a Unani preparation which was apparently a false and misleading claim. A sample was sent to the Government Analyst who gave a certificate dated October 25, 1962 to the effect that it contained Glycerine, Kaolin and Boric Acid and that Glycerine and Boric Acid were Pharmacopoeial drugs which were not exclusively Ayurvedic or Unani medicines. According to the Inspector, the Antiphlogistic Plaster was a misbranded drug as per S. 17 (e) and (f) of the Act. It was alleged that offences had been committed under S. 18 (a) (ii) read with S. 27 (a) and (b) of the Act for selling Antiphlogistic Plaster, a drug "misbrand" as per S. 17 (f) and S. 17 (e) respectively of the Act and under S. 18 (b) read with S. 27(b) of the Act for selling the same drug which had been manufactured without a licence required for the purpose under the Act, to M/s. Frontier Gupta Medical Stores, Mathura.

(3.) On March 24, 1964 the appellants filed a petition under S. 561-A of the Code in the High Court raising a number of points including the question of the jurisdiction of the Court at Mathura to entertain the complaint as also that the Antiphlogistic Plaster was not a drug as defined in the Act and praying that the entire proceedings pursuant to the complaint be quashed. In the affidavit accompanying the petition it was stated that the ingredients used in the preparation of Bindra's Antiphlogistic Plaster were in accordance with the Unani system of medicine. These ingredients were (i) Glycerine, (ii) Kaolin i. e. Gule Armani or Chiknimati, (iii) Bore i. e. Boric, (iv) Oil of Winter green i. e. Java, (v) Oil of Eucalyptus, and Safeda. It was asserted that all the six components were medicines recognised under the Unani system and merely because one of the components was used in the Allopathic system also the medicine would not become a drug when the whole preparation itself was an Ayurvedic medicine. Reference was made to certain books like Ramooz-UI-Taba, Kitabul Davaiya and Kaniz-UI-Taba which were well known books of the Unani system of medicine in which Glycerine and Boric were recognised as medicines used in that system. The other components of the Plaster were, it is stated, of Unani origin and frequently used for preparations in accordance with Ayurvedic and Unani system. The Inspector of Drugs filed a counter affidavit in which it was pointed out that Glycerine, Kaolin and Boric Acid were drugs which were to be found in the British Pharmaceutical Codex 1958. The "monographs" of Glycerine, heavy Kaolin, light Kaolin and Boric Acid containing the formulae according to which these drugs were prepared were given. It was also alleged that Bindra's Antiphlogistic Plaster had been prepared in accordance with the Allopathic system of medicine since its composition resulted in a preparation known as Kaolin Poultice given at page 359 of the British Pharmaceutical Codex 1958. Glycerine, Boric Acid, Kaolin and oil of winter green Methyl Salicylate were the main components of Bindra's Antiphlogistic Plaster and those were medicines which were not exclusively used in accordance with either the Ayurvedic or the Unani system of medicine. In the further affidavit filed by the appellants it was maintained that Glycerine and Kaolin and Boric Acid were being used in the Unani system in the same way as many other things such as Honey Rosewater. Boric or Sohaga, Sulphur i. e. Gandhak Arsenic i. e. Sankhia, Alum, i.e. Phitkari which were mentioned in the British Pharmaceutical Codes but it did not follow that they could not be used in a preparation made according to the Ayurvedic system. It was pointed out that the medicine known as Kaolin Poultice was entirely different from Bindra's Antiphlogistic Plaster.