THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1385 of 2007
04-08-2014
BETWEEN:
The Drugs Inspector, Amalapuram, Represented by its Public Prosecutor High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh …..Appellant AND M/s. S.K. Health Care Private Limited And another …..Respondents/Accused THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO
CRIMINAL APPEAL No.1385 of 2007
JUDGMENT:
The Criminal Appeal is preferred by the State challenging the Judgment dated 24.11.2005 passed in C.C. No.53 of 2004 by the Court of Additional Judicial First Class Magistrate, Razole, whereby the learned Judge acquitted the accused for the offence under Section 27 (D) of Drugs and Cosmetics Act.
The case of the prosecution, as recorded by the trial Court, is as follows:
The brief facts of charge sheet are that the Drug Inspector by name Sri Vijaya Sekhar on 11.9.2002 inspected M/s. Sri Medical & General Stores, D.No.19-B, Main Road, Malkipuram, E.G.Dt., in the presence of the proprietor of the medical shop by name M.V.Satyanarayana Kumar and taken sample of drug Betaclox – 500m.g, batch No.BCF-2041 by following the due procedure laid down u/s 23 of Drugs and Cosmetics Act and on 1.1.2003 sent one of the sample portion to Government analyst, Drugs control laboratory. The Drug Inspector received the report from the analyst that the drug is not of standard quality as the sample contains only 201m.g of Cloxacillin against the required content of 250m.g per capsule. On receipt of the said report, the Drug Inspector furnished a copy of the report to M/s Sri Medical & General Stores asking for disclosing the name, address and other particulars of source of the drug in question, on which the proprietor of M/s. Sri Medicals & General Stores sent his reply that he received the said drug from M/s. Sri Sainath Distributors of Kakinada. In turn, the Drug Inspector addressed a letter to M/s. Sainath Distributors, Kakinada to disclose the source in supply of the drug who in turn sent reply that the drug is supplied by S.K.Health Care Pvt.Ltd., Kakinada, and in turn the Drug Inspector addressed a letter to M/s. S.K.Health Care Pvt. Ltd., Kakinada and that he received reply from the said firm that the drug is supplied by M/s. S.K. Health Care Pvt.Ltd., Secunderabad.
On receiving the information, the Drug Inspector addressed a letter to M/s. S.K. Health Care Pvt. Ltd., Secunderabad to furnish copies of manufacturing, distribution and other records and along with a 3rd portion of sample of the subject drug and copy of the report of analyst, but the Drug Inspector did not receive any information from M/s. S.K. Health Care Pvt. Ltd., Secunderabad, in spite of sending reminder. Then the Drug Inspector on 5.9.03 got the attested copies of manufacturing license and other particulars of M/s. S.K.Health Care Pvt. Ltd., Secunderabad, through the Director of Drugs Control Administration, Vengalrao Nagar, Hyderabad and later he received letter from M/s. S.K.Health Care Pvt. Ltd., Secunderabad that the drug is manufactured and supplied by the firm and also furnished certificate of raw material, purchase invoice and other things and later the Drug Inspector filed charge sheet against the firm and its Managing director as the drug is not of standard quality.
To substantiate the case of the prosecution, during the course of trial, P.Ws.1 to 3 were examined and Exs.P.1 to P.26 and M.O.1 were marked. No oral evidence was adduced on behalf of the accused, but marked Exs.D.1 and D.2.
The learned trial Judge, after perusing the record and appreciating the evidence, found the accused not guilty for the offence under Section 27(d) of the Drugs and Cosmetics Act and accordingly acquitted them observing as under.
The P.W.1 is a Drug Inspector. His evidence in chief is repetitions of facts mentioned in the charge sheet. In his cross-examination, he stated many customers came to shop of P.W.2 for purchasing drugs, when the inspection was going on but he did not obtain signature of any of such customers to show that the shop is inspected by him. The samples are sent to analyst on 30.9.03. The report is received on 1.1.03. There is a gap of 4 months. The Ex.P.4 (report) does not disclose on which date the samples are put to test. The P.W.1 categorically deposed that the drug in question is hydroscopic in nature which means it is prone to absorb the moisture very easily. He admitted that when a drug is of such a quality there is heavy deterioration of quality of the drug. He also admitted the shop of P.W.2 is on costal belt and the drug is seized in the month of September. He further admitted that every drug will have some margin of substandardness. The drug in question shall have standard of 250 mg of Cloxacillian content. But the drug contains only 201 mg. In view of the admission the evidence of P.W.1 this substandardness cannot be attributed to the manufactures alone, more over the P.W.1 admitted that the drug is being manufactured by M/s. Sree Devi Pharmaceuticals Pedamberpet, for M/s. S.K. Health Care Pvt. Ltd., as lone license. The P.W.1 admitted that though he knows the said fact, he did not examine any of the employees of the said company. The Ex.D.1 to D.4 also reveal that the manufacturer is M/s. Sri Devi Pharmaceuticals but not by S.K.Health Care Pvt.Ltd., Kakinada. The P.W.1 further deposed that even after knowing the drug is of substandard quality, he did not give instructions to the medical shops directing not to sell the drug. Though he stated that he gave oral instructions, even the P.W.2 did not depose that he returned the drug to the Distributors as instructed by the P.W.1. When a drug is of substandard, the Drug Inspector shall see that the drugs is sent back to the distributors from all the medical shops under his jurisdiction. But the P.W.1 did not make such efforts. The evidence of P.W.2 is that he is the owner of medical shop by name Sri medical and General Stores, Malikipuram and that in the year 2002, the P.W.1 inspected the shop and purchased 250 capsules of Betaclox and on receiving notice from P.W.1 that the drug is substandard quality, he returned the drug to M/s. Sainath Medical Distributors, Kakinada, and intimated the same to P.W.1. The P.W. 2 in cross-examination stated that at the time of inspection apart from P.W.2 there is another worker in the shop who is aged about years. But the P.W.1 did not obtain even his signature on the inspection report. The P.W.2 categorically stated that a part of portion in Ex.P.2 is written by P.W.2 as per the dictation of P.W.1. The said portion is the crux of the inspection. When it is written as per the dictation of P.W.1 it shows that the P.W.2 is under the control of P.W.1. More over the P.W.2 deposed that he returned the drug to M/s. Sainath Distributors, Kakinada. The manager of the said firm is examined as P.W.3. His evidence in chief is that more than 2 years back, he has signed on a letter in token of receiving back the betaclox capsules from the medical shops of East and West Godavari Districts. He categorically stated the shops in East Godavari are Amalapuram, Peddapuram, Kakinada and Samarlakota. He did not depose at all that he received the drug from Malikipuram also. The prosecution did not try to elicit such fact from the P.W.3, though it is a material aspect for the prosecution. The P.W.3 in cross- examination deposed that he did not receive any summons and he cannot produce any proof to show that he is the manager of M/s.Sainath Distributors, Kakinada. The P.W.3 deposed that has not seen the contents of the letter signed by him.
Heard and perused the record.
This Court is of the view that the Court below has considered the evidence in proper perspective and the reasoning given above while acquitting the accused is also in accordance with law. The Judgment of the trial Court does not suffer from any perverse findings and the acquittal recorded by the trial Court needs no interference by this Court. The criminal appeal fails and is liable to be dismissed.
The Criminal Appeal is accordingly dismissed. Miscellaneous applications, if any pending in this appeal, shall stand dismissed.
JUSTICE RAJA ELANGO 04.08.2014 pln