The Jammu and Kashmir and Ladakh High Court on Thursday held that a person, other than a manufacturer of a drug, cannot be held liable for contravention of Section 18 of the Drugs and Cosmetic Act if he shows that he has acquired the drug or cosmetic from a duly licensed manufacturer.
A bench comprising Justice Sanjay Dhar was collectively hearing petitions wherein the petitioners had challenged the complaint filed by the government authority Ladakh against them alleging commission of offences under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940, which was stated to be pending before the Court of Chief Judicial Magistrate, Kargil.
The petitioners had challenged the said complaint and the order whereby process had been issued by the trial Magistrate against the petitioners on the ground that there is no allegation against the petitioners in the impugned complaint that the drug in question was not properly stored by them.
The petitioners further contended that they cannot be held responsible for the sub standard quality of the drug in question, of which they were only dealers and not the manufacturers.
Perusal of the record revealed that the respondent Drugs Inspector, Kargil, had lodged the impugned complaint against the petitioners alleging that sample of the drug Tablet Uspas Forte collected from the shop of a co-accused was found to be not of standard quality. Record further revealed that after completion of the necessary formalities and investigation, the Drugs Inspector lodged the impugned complaint against said co-accused shopkeeper and as well as against other accused in their capacity as distributors, dealers and manufacturers.
Adjudicating upon the matter Justice Dhar observed that Sec 19(3) of the Drugs and Cosmetics Act 1940 is crystal clear that a person other than a manufacturer of a drug, cannot be held liable for contravention of Section 18 of the Act if he demonstrated three essentials :-
- That he has acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof
- That he did not know or could not, with reasonable diligence, ascertain the contravention of the provisions of the Section
- That the drug or cosmetic, while in his possession, was properly stored and remained in the same state when he acquired it.
Justice Dhar further observed,
"The burden to prove the aforesaid conditions would be upon the concerned dealer but then in the instant case there are averments in the impugned complaint which indicate that the drug in question was stored properly by the petitioners who had, admittedly, acquired the same from a duly licensed manufacturer"
The bench noted that the averments made in the impugned complaint amply demonstrate that the complainant after investigation of the case, had itself found that the manufacturer of the drug in question had breached the provisions of the Act by manufacturing and distributing not of standard quality drug which clearly implied that the the Drug Inspector had found no evidence that the drug in question was not stored in a proper condition by the petitioners, who happened to be the dealers and had admittedly obtained the supply of the drug from a licensed manufacturer.
"Once it is shown from the material on record that the conditions mentioned in Section 19(3) of the Drugs and Cosmetics Act have been satisfied by the petitioners, they could not have been prosecuted by the respondent Drugs Inspector" the bench underscored.
Allowing the petition the bench quashed the impugned complaint and the proceedings emanating from it.
Case Title : Neena Gupta Vs UT of Ladakh
Citation : 2022 LiveLaw (JKL) 87