STATE Vs. PARMANANP MALHOTRA

JUDGEMENT

(1.) THIS appeal under Section 378 of Cr.P.C. has been filed by the State through the Drugs Inspector, Delhi against the judgment and order dated 5.2.1981 passed by the Metropolitan Magistrate, Delhi acquitting Parmanand Malhotra, partner of M/s. Deep Medical Stores for the offences under section 27(a) & (b) read with section 18(a)(1)(ii) of the Drugs and Cosmetics Act, 1940 (for short, "the Drugs Act"). Questions which arise for consideration in this case are: whether a person found in possession of spurious drug, which is seized from an open bottle, can be permitted to raise the defence that it was purchased by him from a licensed dealer, it was properly stored and it remained in the same state as when it was purchased, therefore, he is not liable? And whether in such cases, the Drug Inspector is not obliged to take action against the dealer(s) and manufacture(s) of such spurious drug? This case is a classic example as to the casual manner in which the cases under the said Act are investigated and prosecuted.

(2.) PROSECUTION case, in brief, is as follows: On 23.6.1978, at about 4.00 p.m. complainant inspected shop of the accused; he was found stocking, and exhibiting for sale 340 tablets of Chloroquine Phosphate I.P. 250 mg. Batch No. T -80064 dated April 1978 bearing the label of M/s. Nectarine Pharmacy, Faridabad (hereinafter referred to as 'the drug'). The entire drug was taken as sample, for the purpose of test and analysis in accordance with section 23 of the Act. On 24.6.1978, sample was sent to Government Analyst, Central India Pharmacopocial Lab., Ghaziabad for analysis along with forwarding memo and seal impression. On 30.6.1978, it was reported that the drug did not contain any chloroquine. It was also found to be misbranded under section 17(f) of the Act, because label of the container bore the false statement. On these facts, complaint was filed alleging that accused contravened the provisions of section 18(a)(1) punishable under section 27(b) and 18(a)(ii) punishable under section 27(a) of the Drugs Act; charge was framed the accused pleaded not guilty and claimed trial. The parties hereinafter are referred to as the complainant and accused for the sake of convenience.

(3.) THE accused in his statement under section 313 admitted that he is running the chemist shop and was holding a drug licence. He admitted that on 23.6.1978, the Drug Inspector visited his shop and took sample of chloroquine tablets of the said batch bearing label of M/s. Nectarine Pharmacy, Faridabad from an open bottle for tests and analysis. He stated that sample was the product of M/s. Nectarine Pharmacy which was purchased by him from the supplier on 19.5.1978 through the bill Ex. PW -1/DA in the presence of Dr. D.P. Mittal. The bottle was opened in the presence of the doctor who took out four tablets. He further stated that the drug was properly stored and it remained in the same state from the time he received delivery; and denied that these tablets were seized in compliance with the mandatory provisions of the Act and the rules. It was pleaded that the prosecution based on the document PW -1/U (statement of M/s. Nectarine Pharmacy Chemical Analyst) is not sustainable. In support of his defence, accused examined Dr. D.P. Mittal DW -1 who produced one bottle (Ex.P1) containing chloroquine phosphate tablets purported to have been manufactured by M/s. Nectarine Pharmacy and demonstrated that tablets could be taken out from the bottle without interfering with the seal.