STATE (DELHI ADMINISTRATION) Vs. OM PARKASH

JUDGEMENT

(1.) A complaint under Sections 18(c), 18(a)(ii) read with Sections 27(a)(ii), 27(b) of the Drugs and Cosmetics Act, 1940, (Act XXIII of 1940), hereinafter referred to as the Act, was filed against the respondents Om Prakash Aggarwal and Ram Gobind, that they were on 17th June, 1969, selling, stocking and exhibiting for sale drugs at their shop known as M/s. Gobind General Store without a drug licence, and thereby the respondents contravened the provisions of Section 18(c) of the Act, punishable under Section 27(a)(ii) of the said Act, with imprisonment which shall not be less than one year. It was further alleged that on the aforesaid date. Om Parkash Aggarwal, respondent No. 1 sold one bottle of Queens Balm and 4 tablets of Sulphadiazine for Rs. 1.65 P., to one Vinod Behari Bajpai. On demand, the respondent Om Prakash Aggarwal issued a cash memo for Queens Balm but refused to issue cash memo for Sulphadiazine tablets. The shop of the respondents was inspected on the same day. Respondent No. 1, Om Parkash Aggarwal was incharge of the shop at that time. Four samples of Tetracycline Capsules. B. No. 6711, manufactured by M/s. Cyper Pharma, J -38, Kirti Nagar, New Delhi, Sulphaguanidine Tablets Batch No. not mentioned, Phenargan Tablets Batch No. 1202, bearing the label of M/s. May and Bayker, Bombay and Sulphadiazine Tablets Batch No. and manufacturer's name not given on the label, were taken into possession from Om Parkash Aggarwal under Section 22 of the Act in accordance with the provisions of Section 23 of the Act. Two order forms and a book in which sales were recorded were recovered and seized from the custody of the respondents under Section 22 of the Act. The samples were sent to the Government Analyst, Delhi Administration for test and analysis. The Government Analyst reported that the samples of Phenargan tablets and the samples of Tetracycline capsules on test were found to be of standard quality, but on the samples of Sulphadiazine Tablets and Sulphaguanidine Tablets, no opinion was expressed by the Government Analyst for want of complete claims on the label. The case of the prosecution was that the tablets of Sulphadiazine and Sulphaguanidine were misbranded within the meaning of Section 17(e) of the Act as they were not labelled as required under Rule 96 of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as the Rules) in respect of Batch number, manufacturer's name, claim regarding the standard of the tablets. The respondents were alleged to have contravened the provisions of Section 18a(ii) punishable under Section 27(b) of the Act, with imprisonment for a term which may extend to three years. On the said complaint the accused were summoned.

(2.) THE prosecution examined Dr. D.P. Saxena, Drug Inspector, Delhi Administration, who supported the accusations in the complaint. Despite opportunity given, Shri Saxena was not cross -examined by the respondents. On the evidence of Shri Saxena, Shri P. Chakraborty. Judicial Magistrate First Class, Delhi, framed the following charges against the respondents : - "Firstly - That the respondents on 17.6.1969 at about 11.00 a.m. sold drugs, Queens Balm and Sulphadiazine Tablets and stocked and exhibited for sale various drugs as given in the recovery memo without having the requisite drug licence and thereby committed an offence punishable under Section 27(a)(ii) of the Drugs and Cosmetics Act. Secondly - That the respondents on the aforesaid date and time stocked and exhibited for sale drug Sulphadiazine and Sulphaguanidine tablets which were mis branded within the meaning of Section 17(e) of the Drugs and Cosmetics Act and thereby committed an offence punishable under Section 27(b) of the Drugs and Cosmetics Act 1940". Statements of the respondents were recorded on the charge. Respondent No. 1, Om Parkash Aggarwal pleaded guilty to the charge and prayed that he be excused as he was a Government employee. Respondent No. 2, Ram Govind pleaded guilty to the charge admitting that the medicines in question were recovered from his shop and that he had stocked them for sale without any licence. He prayed that he be excused. On their plea of guilty, the learned Magistrate convicted them per orders dated 26th September, 1970. The learned Magistrate while dealing with the case of Om Parkash Aggarwal, respondent No. 1. observed that he was a public servant and a young man, and accordingly took a lenient view. In the circumstances of the case, the Magistrate ordered that Om Parkash Aggarwal be released on execution of a bond for keeping the peace and be of good behaviour for six months in the sum of Rs. 2,000/ - under Section 4 of the Probation of Offenders Act, 1958. Respondent No. 2, Ram Govind was sentenced to imprisonment till the rising of the Court under Sections 27(a)(ii) and 27(b) of the Act and to a fine of Rs. 250/ - each under both the sections. In default of payment of fine he was to undergo S.I. for three months under each of the two sections. Drugs seized from them were ordered to be confiscated.

(3.) FEELING dissatisfied with the quantum of sentence, the State has come up in revision against the order passed by the learned Magistrate on 26th September, 1970, on the ground that the learned Magistrate had disregarded the mandatory provisions of Section 27(a)(ii) of the Act in not punishing the respondents in accordance with the provisions of the said section.