The perusal of Ex.P8 would reveal that the Drugs Controller authorized the Assistant Drugs Controller [Vigilance] to conduct further investigation in the matter but, nowhere there is any mention of the sanction to prosecute the respondents for the offence punishable under Sections 27(c) and (d) of the Act. Apart from this document at Ex.P8, the prosecution has not produced any such document to prove that, indeed a sanction was obtained by the appellant. Though a feeble effort was made by learned High Court Government Pleader contending that though a copy of the order has been produced, in fact, none of 12 Crl.A 1569/04 the documents have been admitted in the evidence and the prosecution has not examined any person granting the sanction to prosecute the respondents.
On this aspect of the matter, learned counsel for the respondents has placed reliance on the decision of the Punjab and Haryana, reported in 2011(2) Drugs Cases (DC) 36 Punjab & Haryana High Court [Gursewak Dass and others Vs. State of Haryana and another]; wherein, the High Court took into consideration the provisions and the prosecution of the accused underSection 27(b)(i), 27(c), 27(d), 28(A) and 22(3) of the Act. There was non-compliance of the provisions of Section 33M of the Act. The High Court held that the complaint having been filed without obtaining previous sanction of the competent authority, an order of acquittal was granted.
13 Crl.A 1569/04 The High Court of Madras has also took up similar view in the decision reported in 2003 Cri.L.J. 2116 [P.S.Singarayan Vs. The State by Drugs Inspector]. So, in the absence of prior sanction, there cannot be any prosecution. That apart, there is no seizure mahazar while drawing the sample. The seizer mahazar-Ex.P11 though was produced, the attesting witnesses have not been examined and therefore the first appellate Court on perusal of the material placed on record was justified in granting an order of acquittal on the aforesaid ground.1
Karnataka High Court
The State Of Karnataka By Sri B R ... vs M/S Tejpal & Company (Karnataka) on 21 July, 2014
The State has challenged the Judgment and Order of the learned Sessions Judge, acquitting the respondents for the charge under Sections 27(c) and (d) of the Drugs and Cosmetics Act[hereinafter referred to as "the Act" for short], 3 Crl.A 1569/04 by setting aside the Judgment and Order of conviction and sentence by the learned Magistrate, in a trial before him.
2. The facts relevant for the purpose of this appeal are as under:
The 1st respondent is a company, of which the other respondents are the Proprietor, Production Chemist and Quality Control Chemist respectively. The company was manufacturing drugs particularly, Framycetin skin cream 1% w/w under the trade name "Freemycin" with the composition "Framycetin Sulphate". An inspection was held by P.W.3, Drug Inspector and at that time, the said medicine was seized by P.W.3. The sample was taken and it was sent for examination. The reports were secured and it revealed that the drug was sub-standard and spurious. It is in the aforesaid circumstances, investigation was held and after recording the statements of the witnesses, collecting required 4 Crl.A 1569/04 documents, the respondents were prosecuted before the Court.
During the trial, the prosecution examined P.Ws.1 to 15 and in their evidence documents Exs.P1 to 305 and M.Os.1 to 8 were marked. On behalf of the respondents, D.W.1 was examined and in his evidence Exs.D1 to 26 were marked.
The trial Court after hearing the counsel for the parties and on appreciation of the evidence on record, convicted the respondents for the charge under Sections 27(c) and (d) of the Act and they were ordered to undergo simple imprisonment for one year and to pay a fine with default sentence. Aggrieved by the conviction and sentence, the respondents preferred an appeal before the Sessions Court in Crl.A. No.92/2003. The learned Sessions Judge has allowed the appeal and granted an order of acquittal. Aggrieved by the said 5 Crl.A 1569/04 Judgment and Order of the learned Sessions Judge, the present appeal has been filed.
3. I have heard learned High Court Government Pleader for the appellant/State and also learned counsel for the respondents.
4. The point that arises for my
consideration is;
Whether the appellant/State has
made out any grounds to warrant
interference in the Judgment and Order impugned, granting acquittal to the respondents?
5. Learned High Court Government Pleader submits that there is consistent and cogent evidence to prove that the respondents had manufactured sub-standard spurious drugs and the trial Court convicted the respondents on the available evidence, whereas the first appellant 6 Crl.A 1569/04 Court committed an error in granting an order of acquittal.
On the other hand, learned counsel for the respondents would submit that there was no sanction to prosecute the respondents and the documents at Ex.P8 is not a sanction at all. It is also his submission that the samples were not seized under a mahazar-Ex.P11 and no attesting witnesses have been examined to prove Ex.P11. Therefore, he submits that the first appellate Court was justified in granting an order of acquittal.
6. The 1st respondent company was permitted to manufacture (1) Pre-medicine [Framycetin Skin Cream 1% w/w], (2) Freedex [composition Dexamethasone Acetate U.S.P. 0.1% and (3) Framycetin Sulphate B.P. 1.0%]. The above drugs should contain an active ingredient "Framycetin Sulphate" and it is alleged against the respondents that instead of including the above 7 Crl.A 1569/04 active ingredient, the respondents used new "Neomycin Sulphate" as active ingredient. It is in the aforesaid circumstances, it is the case of the prosecution that the respondents did not include the active ingredient, which was required to be used in the manufacture of the drugs and as the sample was examined by the experts, who issued the test reports-Exs.P147 to 149 and they opined that the drugs were sub-standard and spurious. It is in the aforesaid circumstances that the respondents were prosecuted and the evidence was placed on record.
7. The scrutiny of the material placed on record would reveal that P.Ws.1 to 4 are the persons, who were present at the time when the sub-standard and spurious drugs were seized in the shop of the 1st respondent. Though for the seizure, a mahazar was held as per Ex.P11, there was no mahazar so far as drawing up of samples are concerned and on this ground, learned counsel for 8 Crl.A 1569/04 the respondents submits that the Judgment and Order of acquittal cannot be interfered with. In fact, the prosecution has not examined the attesting witness to prove Ex.P11-seizure mahazar. That apart, admittedly, there is no seizure mahazar for drawing the sample. On this aspect of the matter, learned counsel for the respondents has placed on the decision of the Apex Court reported in 2007(2) EFR 109 [State of Goa Vs. Tejpal P.Pandia Proprietor and another]; wherein, the Apex Court while taking into consideration the provisions under Section 27of the Act and Sections 94(2) r/w. 100(4) Cr.P.C., found that the sample indeed was not seized under the mahazar in the presence of the attesting witness/es as contemplated under Section 100(4) Cr.P.C. In the aforesaid circumstances, the Apex Court held that the seizure was without corroborative evidence to strengthen the case of the prosecution and therefore, the acquittal order was not interfered 9 Crl.A 1569/04 with by the Apex Court. The above Judgment of the Apex Court is in between the State and the respondents/accused in respect of the very medicine seized in the medicine shop at Goa; wherein, there was a similar prosecution against the respondents on the same set of facts and the Apex Court granted an order of acquittal.
Secondly, so far as the sanction is concerned, under Section 33M of the Act, the Court can take cognizance of the offences only in case, if there is previous sanction of the authority specified under sub-Section (4) of Section 33G of the Act. The aforesaid provision is extracted herein for the sake of convenience:
"33M. Cognizance of offences:
(1) No prosecution under this Chapter shall be instituted except by an Inspector with the previous sanction of the authority specified under sub- section (4) of section 33G.
10 Crl.A 1569/04 (2) No court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the first class shall try an offence punishable under this Chapter".
Under the aforesaid provision, whenever, any cognizance is to be taken by the Magistrate for the offence committed under the provisions of the aforesaid Act, the law contemplates the sanction. As could be seen from the facts on hand, Ex.P8 is said to be the sanction to prosecute the respondents. The perusal of Ex.P8 would reveal that the Office Order No.DCD/40/DCP/95-96, dated 26.05.1995. The relevant portion of this office order is extracted hereunder for the sake of convenience:
"The file or files pertaining to the complaint against M/s. Tejpal & Co. (Karnataka), Bangalore, in the case of preparations containing 'Framycetin Sulphate' is ordered to be handed over 11 Crl.A 1569/04 to Assistant Drugs Controller (Vigilance) with immediate effect by the concerned for further investigation in the matter.
Sri. B.G.Prabhakumar, Asst. Drugs Controller (HQ) will co-ordinate along with the Assistant Drugs Controller (Vigilance)."
8. The perusal of Ex.P8 would reveal that the Drugs Controller authorized the Assistant Drugs Controller [Vigilance] to conduct further investigation in the matter but, nowhere there is any mention of the sanction to prosecute the respondents for the offence punishable under Sections 27(c) and (d) of the Act. Apart from this document at Ex.P8, the prosecution has not produced any such document to prove that, indeed a sanction was obtained by the appellant. Though a feeble effort was made by learned High Court Government Pleader contending that though a copy of the order has been produced, in fact, none of 12 Crl.A 1569/04 the documents have been admitted in the evidence and the prosecution has not examined any person granting the sanction to prosecute the respondents.
On this aspect of the matter, learned counsel for the respondents has placed reliance on the decision of the Punjab and Haryana, reported in 2011(2) Drugs Cases (DC) 36 Punjab & Haryana High Court [Gursewak Dass and others Vs. State of Haryana and another]; wherein, the High Court took into consideration the provisions and the prosecution of the accused underSection 27(b)(i), 27(c), 27(d), 28(A) and 22(3) of the Act. There was non-compliance of the provisions of Section 33M of the Act. The High Court held that the complaint having been filed without obtaining previous sanction of the competent authority, an order of acquittal was granted.
13 Crl.A 1569/04 The High Court of Madras has also took up similar view in the decision reported in 2003 Cri.L.J. 2116 [P.S.Singarayan Vs. The State by Drugs Inspector]. So, in the absence of prior sanction, there cannot be any prosecution. That apart, there is no seizure mahazar while drawing the sample. The seizer mahazar-Ex.P11 though was produced, the attesting witnesses have not been examined and therefore the first appellate Court on perusal of the material placed on record was justified in granting an order of acquittal on the aforesaid ground.
9. This is an appeal against acquittal and the appellate Court will be slow to interfere in such orders. Even if a second view is possible, the one accepted by the Court below cannot be disturbed. Considering the material placed on record and in the context of the aforesaid principle, I am of the view that the State has not 14 Crl.A 1569/04 made out any grounds to warrant interference in the impugned Judgment and Order.
Consequently, the appeal fails and it is accordingly dismissed.
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