S. KATHIRVEL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner herein is a wholesaler possessing valid licence under the Drugs and Cosmetics Act. The case of the prosecution is that during the investigation conducted by the Drug Inspectors, the petitioner was found in possession of certain medicines, which were under the standard quality due to irregularity in the manufacturing process. The test report given by the Government Analyst dated 02.09.2010 also confirmed the same. Pursuant to the Government Analyst's report, a show cause notice was issued to the petitioner on 15.02.2010, for which a reply was given by the petitioner on 14.10.2010. Not being satisfied with the petitioner's reply and relying upon the investigation report, a complaint was lodged against the petitioner, after obtaining the proper sanction of prosecution against the petitioner and others for contravention under Section 18(a)(i) punishable under section 27(d) of Drugs and Cosmetics Act. In the said complaint, the manufacturer was arrayed as first accused and the petitioner was arrayed as second accused. Challenging the said complaint, the present proceedings has been filed.

(2.) Heard Mr. K.P.Prabu Raj, learned counsel appearing for the petitioner and Mr. N.Rajan, learned Senior Central Government Standing Counsel appearing for the respondent.

(3.) Mr. K.P.Prabu Raj, learned counsel appearing for the petitioner submitted that the petitioner is the wholesaler of drugs. According to him, the petitioner had purchased the tablets against proper invoice, after payment of sale price. Pursuant to the purchase, the petitioner had also properly stored the drugs in the licensed premises. Since the petitioner was not the manufacturer of the alleged substandard drug, he cannot be made liable for the offence. The learned counsel also relying upon section 19(3) of the Drugs and Cosmetics Act has stated that since the petitioner was not the manufacturer of the drugs and he secured it from the duly licensed manufacturer and sold it properly in the licensed premises, he has the benefit of defence taken under section 19(3) of the Drugs and Cosmetics Act. The learned counsel for the petitioner also submitted that the burden of proof to prove that the tablets are substandard is on the part of the prosecution and not on them.