MEDISCARCH LABORATORIES Vs. STATE OF GOA

JUDGEMENT

(1.) ASSISTANT Drugs Controller, State Of Goa, Panaji inspected the premises of M/s. Goa Pharma, Panaji on 3-8-1987 and took sample of 4 X 3 X 5 ml. OTOCHLOR Chloramphenicol ear drops, Batch No. G/170, bearing date of manufacture as 6/87 and expiry date 11/88, which was manufactured by M/s. Medisearch Laboratories, Thane Maharashtra, petitioner No. 1 in this revision. Samples of other drugs were also taken. These drugs were stocked/exhibited for sale in the said premises of M/s. Goa Pharma, Panaji. The said sample of ear drops was sent for analysis to Government Analyst, Drug Testing Laboratories, Bombay, who declared that the same was not of standard quality. Report No. GO-100/87-dated 30-10-1987 of the Government Analyst found that the said sample contained antibiotic activity equivalent to 3. 5 percent of chloramphenicol which is 72% of the labelled amount of chloramphenicol. Show cause notice dated 17-11-1987 along with the copy of the test report of the Govt. Analyst was sent to M/s. Goa Pharma, Panaji, who disclosed vide letter dated 27-11-87 in reply to show cause that they had purchased the said drug from M/s. Entod Pharmaceuticals, Bombay vide invoice No. 335 dated 14-7-1987. The said M/s. Entod Pharmaceuticals is petitioner No. 3 in this petition. Thereafter, show cause notice dated 27-1-88 was issued to M/s. Entod Pharmaceuticals, Bombay and G. V. Masurkar, who is petitioner No. 4 in this revision, and is proprietor of M/s. Entod Pharmaceuticals Bombay who replied vide letter dated 15-2-1988 that they had purchased the said drugs from M/s. Medisearch Laboratories, Bombay vide invoice No. 04 dated 9-7-1987. Thereafter, sealed portion of the said drug and copy of test report dated 30-10-1987 was sent to M/s. Medisearch Laboratories, Bombay, who, vide letter dated 4-1-1988, addressed to the Joint Commissioner, Food and Drugs Administration, Maharashtra, challenged the (sic) Test Report of the Government Analyst. On 9-8-1988, stock of 19 x 5 ml. OCTOCHLOR Chloramphenicol ear drops, batch No. G/170 was seized by Asst. Drugs Controller, State of Goa, Panaji under Section 22 (1) of the Drugs and Cosmetics Act, 1940, receipt in Form 16 of the stock of drugs seized was given to Mr. G. R. Naik, Manager, Goa Pharma, Panaji, who acknowledged the receipt thereof. Thereafter, statements of Production Manager of M/s. Medisearch Laboratories and proprietor of M/s. Entod Pharmaceuticals were recorded. After obtaining written sanction from the Drugs Controller and the controlling authority to launch prosecution, complaint for contravention of provisions of Section 18 (a) (i), read with Section 16 (1) (a) and Section 17 (c) read with Section 27 (d) of the Drugs Act, 1940 was filed.

(2.) THE said complaint had been filed against M/s. Medisearch Laboratories, who manufactured the said ear drops, petitioner No. 1, its proprietor, petitioner No. 2, M/s. Entod Pharmaceuticals, petitioner No. 3 who had purchased the said drugs from M/s. Medisearch Laboratories and from whom the drug was purchased by M/s. Goa Pharma, Panaji and also proprietor of M/s. Entod Pharmaceuticals, who is petitioner No. 4. No prosecution was launched against M/s. Goa Pharma, from whom the sample was taken.

(3.) THE petitioners raised the question of jurisdiction of the J. M. F. C. Panaji, who tried the offence in question on the sole ground that the Court had no jurisdiction as M/s. Goa Pharma had not been joined as a party. The Magistrate accepted the contention of the petitioners and discharged them. Asst. Drugs Controller filed revision against the said order in the Court of Sessions and Learned Addl. Sessions Judge Mapusa allowed the revision by setting aside the order of discharge, passed by the Magistrate and remanded the matter for proceeding in accordance with law. This order is dated 31-8-1995, which is challenged in this revision, In the revision also the sole objection raised, is relating to jurisdiction on the ground that M/s. Goa Pharma had not been joined as party and, as such, the petitioners could not be tried by J. M. F. C. Panaji.