NARENDRA SAHI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The Drug Inspector, Giridih, when inspected a whole sale medicine shop namely, M/s Kalyan Medical Agency, Giridih, he found one drug named as A to Z Gold Soft Gelatin Capsules manufactured by petitioner no. 1 and marketed by petitioner no. 2, was being sold as dietary supplement under the license granted under the Prevention of Food Adulteration Act though the active ingredients in each of the capsules had been in the therapeutic range as prescribed under Schedule V of the Drugs and Cosmetics Rules, 1945. It was further found that on the label of the said capsules Drug Manufacturing License number had not been mentioned though the capsules were the 'Drug' and not the dietary supplement as Vitamins in particular therapeutic range is prescribed by a Doctor in particular dosage to treat vitamins deficiency and, therefore, said capsules were required to be manufactured, marketed and to be sold out under a license to be issued under the Drugs and Cosmetics Act. On the said allegation, a complaint was lodged, which was registered as Complaint Case No.185 of 2005. Upon filing of the said complaint cognizance of the offences punishable under Section 27 read with Section 18(a)(VI), 18(b) and 18(c) of the Drugs and Cosmetics Act, 1940, was taken against the petitioners and summons were issued. In response to summons, the petitioners did appear and were granted bail. Thereupon, the case was fixed for evidence before charge. When the complainant failed to produce a single witness for his examination before charge at number of occasions, the Court vide its order dated 05/04/2007, closed the case and fixed the case for 10/04/2007 for passing order. On the same day, i.e. 05/04/2007, two witnesses appeared but they were not examined as the order had already been passed fixing the date as 10/4/2007 for passing order. On 10/04/2007, an application was filed on behalf of the complainant under Section 311 Cr.P.C for recalling the order dated 05/04/2007 and to examine the witnesses. On the said application an order was passed on 30/05/2007, whereby and whereunder the order, which had been passed on 05/04/2007 was recalled and the case was ordered to be fixed for 29/06/2007 for framing charge. Thereafter, an application was filed under Section 227 Cr.P.C on behalf of the petitioners stating therein that earlier the Court had called for the report but the same was not sent to the Court and, hence, nothing is there on the records to suggest that the products, which has been seized was a Drug and not a dietary supplement. That application was rejected vide order dated 04/09/2007 and the case was fixed for next dated for framing charge.

(2.) When the matter came up for hearing before the learned Single Judge, a plea was taken, on the basis of the order passed by Patna High Court on 04/02/2009 in C.W.J.C. No. 4065 of 2006, that A to Z Gold Soft Gelatin Capsule manufactured by the same company, which has manufactured A to Z Gold Capsule, is not a Drug, rather is a dietary supplement. On the other hand learned counsel appearing for O.P. No.2 by placing reliance on a decision reported in "AIR 202 Kerala, 357" submits that it has been held by Hon'ble Kerala High Court that vitamin capsules happen to be Drug and not a dietary supplement.

(3.) In the aforesaid circumstances, the learned Single Judge having found that two different High Courts have taken two different view which is diametrically opposite to each other, has been pleased to refer the matter before the Division Bench. That is how both these matters had come up before this Court.