State vs M/s. Uni Drug and Others

M.N. Moorthy, J.—This is an appeal filed by the State against the order passed by the XVI Metropolitan Magistrate, George Town,

Madras 1, in C.C, No. 27681 of 1974, acquitting the accused who were charged for an offence under Ss. 18(a)(i) and 27 of the Drugs and,

Cosmetics Act, 1940.

The prosecution case is as follows: Al is a firm situate at No. 177, Govindappa Naicken Street, Madras 1, licensed to repack and sell drugs as

provided under the Drugs and Cosmetics Act, hereinafter referred to as the Act. Accused 2 to 4 are the partners and A5 is the chemist of the said

firm. P.W. I is the Drug Inspector.

On 7th April, 1973, P.W. I visited the Government Medical Store Depot, Madras 3, and found there a stock of 3000 packets each 500 gms.

of purified talc I.P. Batch No. 639. He took four samples each of 500 gms. under Ex. Pl and sealed those four samples with his seal and also the

seal of the Government Medical Stores Depot and handed over one sample to the Manager. The second sample was sent for chemical analysis

under Ex. i-2. He kept the third female with him. He received the Government Analyst''s report, Ex. P4, stating that the sample was not of

standard quality. On 9th October, 1973 are went to M/s. Ramesh Medical Hall belonging to A3. He seized some records under Ex P5. The

manufacturer''s record of M/s. Uni Drug (Al) is Ex. P6. He seized a few records from Al firm. On 16th October, 1973 he wrote to the Deputy

Asst. Director General, Government Medical Stores Depot, with a copy of the Analyst''s report, Ex. P4, to furnish the name and address of the

supplier of the drug covered by Ex. P4, quantity received, the balance in hand and the ether distribution particulars, by letter, dated 16th

November, 1973 . On 16th November, 1973 he received a reply, Ex. P12. Then, a show cause memo, was issued to Al with a copy of Ex. 14 .

He tried to hand over the samples to accused 2 to 4 with the Analyst''s report and copy of the memo, but they declined to receive them. After

finding out the partners of Al firm with the help of the original partnership deed, he made a report to the Drugs Controller under Ex. PI 5 for

sanction which was duly granted by Ex. 16, 18th September, 1974. Then, the proceedings were launched against the accused under S. 18 (a)(i) of

the Act for having manufactured a drug which is not of standard quality.

P.W. 2, Manager of Government Medical Store Depot, testified that an order was placed with Al for supply of 1500 legs, of Talc Purified I.P.

under Ex. P 17, dated 12th February, 1973. 3000 packets, each containing 500 gms. bearing Batch No. 639 repacked by the Uni Drug (Al) was

delivered. Later, a copy of the report of the Government Analyst declaring the item as not conforming to the standards prescribed in the I.P. was

received with a request not to dispose of the stock. They then intimated Al by Ex. 18 about their rejection of the stock which was acknowledged

by Ex P19 by Al.

P.W. 3 is examined for the production of Ex. P20, the partnership deed of Al firm, which is dealing in drugs, and P.W. 4 is examined to speak

about P.W. I seizing records on 9th October, 1973 from Ramesh Medical Hall under Ex. P5 mahazar, which has been attested by him.

When the accused were examined, they denied their complicity in the crime. They examined four witnesses on their behalf. D.W.I is a retired

Public Analyst, King Institute, Guindy. Accordingly to him, Talcum Powder I.P. Batch No. 63y was analysed by one Bagyam Krishnaswamy and

he not was standing by her side when she anaylsed the sample.

D.W.2 was the Senior Scientific Assistant at Govt. Medical Stores Depot. He has analysed Talcum Powder I.P. Batch No. 639. The sample

was tested with dilute hydrochloric acid for about 15 minutes and then the filtrate was evaporated.

D.W.3, Senior Analyst of the King Institute, has deposed that she is not a Government Analyst. She carried out the test as mentioned in Ex. P4.

She stated that the Government Analyst was not present when she carried out the test.

9 D.W.4 is an employee of Al firm. He denied having sold any talcum powder Batch No. 639. No talcum powder was seized from him. He came

to know about the case only when he received summons from the Court.

The learned Magistrate acquitted the accused mainly on three grounds, viz., (i) where a Government Analyst does not carry out the analysis

himself, the prosecution cannot be permitted to rely upon the formal report of the analysis furnished by the Government Analyst, (ii) The sample

was taken on 7th April, 1973 and the analysis was carried out only on 21st September, 1973, i.e. after a lapse of 5 1/2 months, and the drugs and

cosmetics lose effectiveness and potency with the passage of time, and (iii) 1 he Government Analyst who issued Ex. P4 should have been

examined as a witness on the side of the prosecution.

Even though the State appeal was admitted as regards all the five respondents/ accused, the whereabouts of A4 having not been traced, he

could not be served with the notice of the appeal. Hence, as far as the case against A4 is concerned, the appeal against acquittal not being pursued

by the State, stands dismissed. There are only four respondents accused now before me.

The learned Public Prosecutor, assailing the order of the trial Court, contended that none of the grounds mentioned by the lower Court for

acquittal is sustainable. As regards the first ground, he brought to my notice R. 45 of the Drugs and Cosmetics Rules, 1945, which reads as

follows:

Duties of Government Analysts :- (1) The Government Analyst shall cause to be analysed or tested such samples of drugs and cosmetics as may

be sent to him by Inspectors or other persons under the provisions of Chapter IV of the Act and shall furnish reports of the results of test or

analysis in accordance with these Rules.

He contended, it is not obligatory on the part of the Government Analyst that he should analyse all the samples himself as it would not be

humanly possible and be could analyse some of the samples himself and whenever necessary direct such analysis to be carried out by his

subordinate officers. Merely because a Subordinate Officer has been permitted to analyse the sample, it could not be thrown out on the ground

there was no personal knowledge of the Government Analyst. When once the analysis has been done by the competent authority and the report

has been submitted, it should be presumed that all necessary acts have been performed. In support of his contention, my attention was drawn to

the judgment of the Supreme Court in Kassium Kunju Pookunju and Another v. K.K. Ramakrishna Crl. A. No. 29 of 1969, dt. 2nd December,

1968 Pillai and another. Their Lordships were dealing with a case under the Prevention of Food Adulteration Act and they made the following

observation:

The High Court relied on the principle that official acts must be presumed to have been regularly performed Under R. 7 the Public Analyst has to

compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the

sample for analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the rules and he must

have compared the specimen impression received by him with the seal of the container.

We do not find any error in the decision of the High Court on the above point.

The Supreme Court has thus accepted the principle that the official acts must be presumed to have been regularly performed.

It could also be a safe presumption under Illustration (e) to S. 114 of the Evidence Act, that an official performs the duties regularly and that he

acted in accordance with the Rules. In the present case, I do not find any infirmity in the test conducted by D.W.3 and the report Ex. P4, even

though D.W.I the Public Analyst was not bodily present at the time when the analysis was done. If there was any element of doubt as to the

genuineness of the analysis made by D.W.3,1 have no reason to doubt D.W.I would not have released Ex. P4. It is too much for an officer like the

Government Analyst to supervise each and every sample sent to the Institute for being analysed. I agree with the learned Public Prosecutor in this

respect. The reasoning of the trial Court for the first ground of acquittal is erroneous.

It was next contended, there was a delay of 5 months after the sample was taken and the analysis being made, but there is nothing elicited from

the witnesses to show that the passage of time makes an article like the talc lose its effectiveness and potency. The accused should have elicited

that the passage of time has an adverse effect. The accused examined the Government Analyst, the Senior Scientific Assistant and the Senior

Analyst, as D.Ws. 1 to 3 and they could have elicited materials from them regarding this aspect. Without any material one is at a loss to know for

certain that the delay in analysing has adverse effects on the sample. As the analysis of the sample was done and the report submitted by the

Government Analyst, I have to take it that there would not have been any change because of the time lapse between the seizure and the analysis of

the sample. The finding of the trial Court regarding this aspect of the matter in favour of the accused also fails.

As regards the third ground that the Government Analyst who issued Ex. P4 was not examined on the side of the prosecution, it has no

substance in it. The lower Court has proceeded on the basis that the Analyst should have been a witness to speak as to how and why he declared

the sample of Talcum powder in question as not of standard! quality and how it fell below the standard low down in the Indian ""Pharmacopoeia.

Failure to put him in the witness box, according to it, has denied an opportunity to cross examine him and establish infirmity in Ex. P4 report. S.

25(3) of the Act reads as follows:

Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such

evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have

been disclosed under S 18A has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court

before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversial of the report.

This in no uncertain terms makes a report signed by the Government Analyst evidence and such evidence shall be conclusive unless some steps are

taken to adduce evidence in controversial of the report. The report of the Public Analyst is admissible in evidence without any proof. The lower

Court has clearly erred on this aspect of the case. This ground of acquittal is also not maintainable.

Though the grounds of acquittal by the trial Court are not tenable, Mr. S. C. Shah, Learned Counsel appearing for the respondents, contended

that there were some more features in the prosecution case which the lower Court could have adverted to in sun-port of its order. He contended

that S. 3(b) of the Act defines a ''drug'' and the prosecution has not let in any evidence to show that talc is a drug and for what purposes it was

used. The learned Public Prosecutor countered this argument bringing to my notice the second schedule of the Act, dealing with standards to be

complied with by imported drugs and by drugs manufactured for sale, stocked sold, or exhibited for sale or distributed. Under Cl. (a) of item 5 of

the second schedule are drugs included in the Indian Pharmacopoeia. Talc is one of the items included in the Indian Pharmacopoeia. Hence, talc is

a drug within the meaning of the Act. The contention of the Learned Counsel is not tenable.

It was then contended that even though the accused were charged for an offence under S. 18, there is no specific accusation of contravention

either in the charge or in the evidence. S. 18 deals with manufacture for sale, sold, stocked or exhibited for sale or distributed, etc. The allegation

against the respondents is too vague for them to meet.

No doubt, the wording of the charge could have been more specific in its terms and pinpointed as to which clause under S. 8 of the Act is

contravened. But then, the learned Public Prosecutor relying on the decision reported in Amichand & Co v. State of Kamataka 1980 M.L.J. (Crl.)

577, as to contended that the objection as to the charge being defective should have been taken at the earliest stage. He contended that the charge

is specifically under S. 18(a)(i) of the Act in as much as the talc was not of standard quality. No prejudice has been caused and the accused has

understood the gravamen of the charge and the offence complained of quite satisfactorily. I am inclined to agree with the learned Public Prosecutor

that the accused knew the accusation against them and no prejudice has been caused because of any vagueness in the charge.

A faint attempt was made that some of the mandatory provisions relating to the sending of the sealed samples to the Analyst, as contemplated

under R. 57 which deals with the procedure for dispatch of sample to the Government Analyst, have not been complied with. But the evidence of

P.W. 1 and the documents produced in the case do satisfactorily establish that all the necessary formality s have been scrupulously complied with

in this case.

Next, it was contended that the accused had not sold any purified tale to the Government Medical Stores Depot but had only supplied to them

subject to approval and therefore, the accused cannot be made liable under the penal provisions of the Act as the Government Medical Stores

Depot was at liberty to and back the goods supplied to them if it was not satisfactory.

The word ""manufacture"" includes packing also. The accused have packed the tale and passed them on to the Government Medical Stores

Depot. What they have packed is of sub-standard quality punishable under S. 27 of the Act. The offence is complete when once there is a

manufacture of a sub-standard product. The recipient of the goods if he so chooses can return them on not being satisfied, is no ground to

exonerate the manufacturer. This view of mine derives support from the decision rendered in State of Karnataka v. Vikaram Chemical

Laboratories 1975 M.L.J. (Crl.) 8.

Lastly, it was contended by the counsel for respondents that accused 2 and 3 are the partners of the firm. The offence was committed without

their knowledge and in spite of exercising due care to prevent the commission of such offence. The partnership deed, Ex. P 20, makes it

abundantly clear that they could not have been looking after the day-to-day business to make them liable for 4he offence committed by the firm. It

is also submitted, A3 is running another shop by name Ramesh Medical Hall in a different place and he would not be in a position to know the

happenings of A1 firm in time. In support of this contention, the decision in State of Karnataka v. Pratap Chand and Others 128 L.T.R. 573 : AIR

1981 SC 372 was placed before me, wherein there Lordships have made the following observations:

the partner of a firm is also liable to be convicted for an offence committed by the firm if he was in charge of, and was responsible to the firm for

the conduct of the business of the firm or if it is proved that the offence was committed with the consent or connivance of, or was attributable to

any neglect on the part of the partner concerned.

A person should be in over-all control of the day-to-day business of the firm to be designated as a '' a person in-charge."" A 5 in this case is the

Chemist attached to A1 firm. No doubt, supervision alone is not enough to make a person liable. The learned Public Prosecutor, relying on the

terms of the partnership deed, Ex. P20, contended that the respondents are liable as they would satisfy the requirements contemplated under S. 34

of the Act. However, in view of the order I propose to make, it is not necessary to enter into the merits of the contentions raised on both sides

regarding this aspect of the case.

It has been brought to my notice that the partnership has been dissolved long ago and Al firm at present is not in existence. This is an offence

which is said to have taken place along time back, i.e. on 11th April, 1973, and no economic motive is alleged against the respondents. In view of

the circumstances narrated above, though the order of acquittal passed by the trial Court is not legally sound, there does not appear to be

adequate reasons for interference with the order as with my view, the public interest does not require such an interference at this belated stage.

Therefore, it appears expedient and necessary in the interest of justice to decline to interfere with the order of acquittal. For the aforestated

reasons, this appeal against acquittal stands dismissed.