The Rajasthan High Court has observed that Section 18A of Drugs and Cosmetics Act, 1940 requires disclosure of name of manufacturer also and not only of the stockists and thus, he is entitled to receive one portion sample of seized drugs in terms of Section 23(4) of the Act.
Section 18A of the Act deals with the disclosure of the name of the manufacturer, etc. It states, "Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.".
Section 23(4) r/e 23(3) provides that where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall divide the sample into four portions and restore one portion of it to the person from whom he takes it, and shall retain the remainder.
Essentially, the Drug Inspector sent a notice to the petitioner stating that certain drugs, which were manufactured by petitioner, were seized from the Drug Store CHC, Kota, which were in turn procured from the District Drug Warehouse, Kota. As per the notice, the Drugs were not of standard quality.
The petitioner filed an application before Chief Judicial Magistrate for supplying one portion of the sample of the Drugs out of the total four samples required to be prepared in view of the provisions of Section 23(3) of the Act.
The Chief Judicial Magistrate refused this prayer stating therein that one part of the sample was already provided to the District Drugs Warehouse Keeper, hence, there is substantial compliance of the law. The Sessions Judge confirmed the said order. Aggrieved, the petitioner challenged both the orders in this petition filed under Article 226.
Justice Birendra Kumar, while allowing the petition and quashing the orders passed by both the lower courts, observed,
"A bare perusal of the provisions of Section 23(4)(iii) above, would make it clear that one part of the sample shall be sent to the person, whose name and address has been disclosed under Section 18A as manufacturer. Section 18A of the Act requires disclosure of the name of manufacturer and not only of the Stockists."
The court directed that the petitioner be supplied with a part of the sample seized under the Act. It was held that both the courts below have failed to exercise jurisdiction vested leading to miscarriage of justice.
Moreover, the court observed that under Section 18A, the name of the manufacturer is also to be disclosed besides other disclosures of procurement of the Drugs in question. The court opined that from the perusal of Drugs Inspector's notice, it is clear that under Section 18A name of the petitioner was disclosed as manufacturer. Therefore, petitioner was entitled for a part of the seized sample under Section 23(4)(iii) of the Act, added the court.
In this regard, the court said,
"Notice to the petitioner reveals that name of the petitioner was disclosed as manufacturer under Section 18A. Therefore, the petitioner is entitled for one sample of the seized Drugs to protect/defend his right and interest in the pending proceedings."
The counsel for the petitioner submitted that the four sets of samples were to be acted upon as provided in Section 23(4) of the Drugs and Cosmetics Act. He argued that from the notice, it is evident that the District Drugs Warehose, Kota, disclosed under Section 18A of the Act that the Drug was procured from the petitioner. Therefore, the law under Section 23(4)(iii) read with Section 18A of the Act, requires that the petitioner should be provided with one set of the sample of the Drugs, he argued.
The counsel for the respondents contended that there is substantial compliance of law as the Drugs were seized from the Drugs Store, CHC, Vigyan Nagar, Kota and that authority disclosed under Section 18A that he had] obtained the drug from District Drugs Warehouse, Kota, to whom one of the sample was already supplied. He added that the petitioner was nowhere having any right for a sample under the provisions of Section 23 of the Drugs and Cosmetics Act.
Case Title: M/s Vivek Pharmachem (India) Ltd. v. State Of Rajasthan & Anr.Citation: 2022 LiveLaw (Raj) 166