Mhc nirmal.kumar j full order -++–Seizure of drugs – Witnesses not supported case of prosecution – Confession as well as recovery from accused persons not proved.

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State v. M/s.National Pharmaceuticals [A-3], (Madras) : Law Finder Doc Id # 1727862
MADRAS HIGH COURT
Before:- M.Nirmal Kumar, J.

CRL.A.No.108 of 2010. D/d. 09.06.2020.

State rep. by, The Drugs Inspector, O/o. Director of Drugs Control, Tamil Nadu, No.359, Anna Salai, Chennai – 600 006. – Appellant

Versus

M/s.National Pharmaceuticals [A-3], A Division of Rider Pharmaceuticals Pvt. Ltd., No.19, Dr.Nayar Salai, T.Nagar, Chennai-17. Rep. by Kamalchand Jain, Director. 2.Kamalchand Jain [A-4] – Respondent

For the Appellant:- Mrs.M.Prabhavathy, APP.

For the Respondent No. 1:- No Appearance.

For the Respondent No. 2:- Mr.N.Chandrasekaran for Ms.M.F.Shabana, Advocate.

IMPORTANT

Seizure of drugs – Witnesses not supported case of prosecution – Confession as well as recovery from accused persons not proved.

Drug And Cosmetic Act 1940, Sections 18(a)(i) read with Section 17-B(b)(e) & (d) r/w Section 27(c) – Appeal against acquittal – Selling of spurious drug Fortum Injection – Seizure of drugs – Witnesses of M/s.Glaxo Industries admitted that they used to distribute through authorized agents who sell medicines to various pharmacies and thus, trading of Fortum injection by pharmacist is common in trade – Witnesses for seizure of medicines from accused shop not supported the case of the prosecution – Confession as well as recovery from accused persons not been proved – No interference.

[Paras 21, 22 and 24]

Case Referred :

Amery Pharmaceuticals v. State of Rajasthan (2001) 4 Supreme Court Cases 382

JUDGMENT
M.Nirmal Kumar, J. – This Criminal Appeal arises out of judgment of acquittal of A3 and A4/respondents rendered by the learned IV Metropolitan Magistrate, Saidapet, Chennai in C.C.No.7457 of 2002, dated 14.11.2006.

2. There are totally seven accused in C.C.No.7457 of 2002, namely M.Vijayakumar/A1, V.Prabhu/A2, M/s.National Pharmaceuticals, Division of Ridu Pharmaceuticals Private Limited/A3, represented by its Director A4/Kamal Chand Jain, G.Susilkumar/A5, Nareshkumar/A6, M.Rajan/A7. A4 to A6 are the Directors of A3 company and A7 is its Manager.

3. On conclusion of trial, the trial Court acquitted A3 to A7 and found A1 and A2 guilty and convicted them under Section 18(a)(i) r/w Section 17-B(b)(e) & (d) r/w section 27(c) of the Drugs and Cosmetics Act, 1940 and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.5,000/- each, in default to undergo three months simple imprisonment, against which A1 and A2 preferred an appeal before the learned V Additional Sessions Judge, Chennai in C.A.Nos.327 & 335 of 2006. The learned V Additional Sessions Judge, Chennai by Judgment dated 17.07.2007, set-aside the judgment of trial Court and acquitted A1 and A2 from the charges levelled against them. As against the Judgment of acquittal of A3 and A4/respondents, the State/appellant has filed this present appeal.

4. The brief facts of the case is as follows:-

(i)One Sengaiyan of Gummidipoondi manufactured and sold 800 vials spurious Fortum Injections which is a patented medicine manufactured by the firm M/s.Glaxo India Limited and sold them to one Devarajan of Minjur. The said Devarajan sold the said drugs to A1/Vijayakumar, who in turn distributed to distributors and also to A2/V.Prabhu. Out of his stock, A1 sold 360 vials of Fortum Injections to A2, from A2 it reached A3 who sold to PW2/M/s.Kalapan Medical, Indira Nagar, Adyar and St.Isable Hospital Pharmacy. Based on the information about the spurious drugs namely Fortum Injections available in the market, an investigation was carried out by the Drugs Control Department at various places. During one such investigation, PW1, the Drug Inspector, Adyar Range, on 13.12.1999 found one gram of Fortum Injection with PW2, M/s.Kalpana Medical, Indira Nagar, Adyar and seized the drug under Form 16 and Mahazar in presence of two independent witnesses. The Proprietor of M/s.Kalpana Medicals/PW2 informed that the Fortum Injection was purchased from A3 firm viz., National Pharmaceuticals, Chennai and produced the purchase bill/Ex.P6. PW2 replied by letter dated 31.03.2000 [Ex.P9] that the spurious drugs was purchased from the 1st respondent/A3 under purchase bill No.153170, dated 12.08.1999 [Ex.P6]. From the purchase bill, it is found that the Fortum Injection pertains to Lot No.N73. On physical verification of the outer cover of Injection, it is seen as Lot No.N730. PW2 was prosecuted for the same and pleaded guilty in C.C.No.922 of 2001 and he paid the fine amount. Notices were sent to A3 to A7 calling for explanation. On 12.12.2001, A3 to A7 sent replies [Exs.P23 to 26], stating that Fortum Injections were purchased by them from M/s.Selvam Pharmacy at Mylapore and further stated that the computer available with them could print only seven digits from left to right. Since the batch numbers (LOTN 731) comes eight digits, the computer ignored the last digit which is purely a clerical mistake.
(ii)PW1, thereafter, visited M/s.Selvam Pharmacy, Mylapore and found the pharmacy being closed and vacated and its Proprietor was no more. Thereafter, PW1 handed over the investigation to PW5, who continued the investigation and came to know about Sengaiyan of Gummidipoondi and Deverajan of Minjur who sold Fortum Injections to A1. In the meanwhile, the CBCID, Andhra Pradesh and CBCID Chennai, Metro, registered a case, conducted investigation. PW5 visited St.Isabel Hospital Pharmacy, got the particulars of purchase of Fortum Injections and sent notice to the M/s.Glaxo India Limited and examined them. A1 and A2 were arrested by CBCID police, recorded confession statements, 57 vials were seized from A1’s shop by PW12 in the presence of PW13 and PW15. The spurious drug/MO1 which was seized from PW2 was not sent for chemical analysis, since only one vial was available and it was not properly stored. PW6/the Pharmacist of M/s. Glaxo Company, compared physically MO1 with MO2 and gave Ex.P35 found difference in outer label. Hence, a complaint has been filed before the trial Court.
5. Before trial Court, prosecution examined 16 witnesses and marked 50 documents and seized 2 materials objects. On the side of the defence, no witnesses were examined and no documents were marked.

6. The learned Additional Public Prosecutor appearing for the appellant/State submitted that based on information about spurious drug Fortum Injection selling in the market, investigation was carried out by the Drugs Control Department, Chennai, at various places. During such investigation, PW1/the Drug Inspector, Adyar Range on 13.12.1999 found one vial of Fortum Injections 1gm at the pharmacy of PW2, who is the Proprietor of M/s.Kalpana Medicals, Adyar and seized the drug under Form 16 and mahazar in the presence of two independent witnesses. The bill produced by PW2 for purchasing Fortum Injection contained batch number LOTN 73, but in the outer cover, it was found as LOTN 730. PW2 informed that he purchased the Fortum Injection from A3’s firm. Notice was sent to A4 to A7, who are the Directors and Manager of A3 firm, to furnish the details. On receipt of the same, on 12.12.2001 they replied that the computer available with them could not print eight digits, the last digit was not printed in the bill and further stated that Fortum Injections were purchased by them from M/s.Selvam Pharmacy at Mylapore. When PW1 went to M/s.Selvam Pharmacy, Mylapore, it was found that the pharmacy was closed and vacated, since the Proprietor has died. PW1 spoke about conducting inspection at the shop of PW2, seizing spurious drugs in the presence of independent witness PW3, sending notices to A3 to A7. A3 admitted in his reply dated 12.12.2001 that they had supplied one gram vial of Fortum Injections to PW2 under Invoice No.153170 dated 12.08.1999 and the Fortum Injection was purchased from M/s.Selvam Pharmacy but they failed to produce any purchase bill.

7. The learned Additional Public Prosecutor further submitted that PW4/the Medical Superintendent, St.Isable Hospital, Myalpore, Chennai, stated the fact that the respondents had supplied 60 vials of Fortum Injections in LOTN 73 under Invoice No.151398 dated 07.08.1999 [Ex.P13] of which 57 vials were used for patients and did not use the remaining three vials, due to discolouration. PW4 further stated about purchase of 19 vials from M/s.Moti Company and handed over remaining three vials purchased from A3 firm and 19 vials purchased from Moti and Company to the Medical Representative of M/s.Glaxo Company, who is the original manufacturer to confirm the quality of the medicine. In Ex.P13, the batch number is mentioned as LOTN 73, not as LOTN 730.

8. A4 in his reply dated 12.07.2001 [Ex.P23] admitted that they supplied Fortum Injection to M/s.Kalpana Medicals, Indira Nagar, Adyar/A2. Further, A4 could not give any bill for purchasing of six vials from M/s.Selvam Pharmacy as could be seen from Ex.P23. PW6, the Analyst of M/s.Glaxo India Private Limited had verified and compared MO1, the Fortum Injection, seized from M/s.Kalpana Pharmacy with standard vial MO2, which was brought by him. PW6 has given his report [Ex.P35] stating that MO1 was a spurious drug. Further, PW8, the Regional Manager of M/s.Glaxo Company produced the distribution details [Ex.P37] and PW7 and PW16 had also produced the documents in this regard. The seized MO1 was produced before the learned IV Metropolitan Magistrate, Saidapet, Chennai on the next day of seizure i.e., on 14.12.1999 [Ex.P7]. The admission and conviction of PW2 for non production of purchase bill in C.C.No.922 of 2001 will not affect the case of the prosecution.

9. It is further submitted by the learned Additional Public Prosecutor that as per section 23(4) of the Drugs and Cosmetics Act, 1940, the Inspector should restore one portion of a sample to the person from whom he takes it. In this case, only one vial was seized. Hence it could not be sent to the Government Analysis for test. The Fortum Injection which was available in the said St.Isable Hospital was sent for analysis and found that the drug was not of standard quality by the Government analysis and a separate case has been initiated against M/s.Moti and Company, which is pending trial on the file of the III Assistant City Civil Court, Chennai in C.C.No.34 of 2014.

10. The learned Additional Public Prosecutor further submitted that it is proved by Ex.P6, Fortum Injections LOTN 730 MO1 seized from the premises of PW2, was supplied by the respondents. The respondents failed to produce the purchase bill for batch number LOTN 730. M/s.Glaxo India Private Limited, the original manufacturer of Fortum Injection had not supplied the Fortum Injection to the respondents. Further PW6 on physical examination of MO1 stated that MO1 is not the product of M/s.Glaxo India Private Limited. The respondents knowing well that they were dealing with spurious medicine, in order to hide the fact had deliberately prepared the sales Invoice by not mentioning the correct batch numbers. The respondent could not be exempted as per section 19(3) (b) of the Drugs and Cosmetics Act, 1940, since they have purchased spurious drugs in batch number LOTN 730 from A1 and A2 without producing the bill and sold the same by manipulating the batch number. In this case PW1 is the Drug Inspector, Adyar Range, who conducted the verification and inspection of Drugs in the premises of PW2, M/s.Kalpana Pharmacy and seized MO1. PW2 is the Proprietor of M/s.Kalpana Pharmacy who admitted about verification, seizure of MO1 and purchase from A3, PW3 is the witness for the seizure of MO1. PW4 and PW14 are the witnesses from St.Isable Hospital, who stated about the purchase of Fortum Injection from the respondents. PW11 is the Inspector of CBCID Chennai, Metro who stated about arrest of Sengaiyan and Devarajan by CBCID Police. From their confession, it is seen that A1 in this case had purchased 800 vials, out of which 360 vials was purchased by A3 through A2. A4 to A7 who are the Directors and Manager of A3 firm has knowingly dealt with the spurious drugs.

11. Further, MO1 was not manufactured by M/s.Glaxo India Private Limited, which is proved by PW6 by comparing MO1 with MO2. The witnesses from M/s.Glaxo India Limited PW7, PW8 and PW16 clearly stated the batch numbers of Fortum Injection and supply of the same to its authorized dealer M/s.Glaxo had not supplied any Fortum Injection to A3. The witnesses/PW2 and PW3 had clearly spoken about the seizure of MO1 by PW1. The Drug Inspectors PW1, PW5, PW9, PW10 and PW12 have clearly spoken about the Special Investigation conducted by them. PW5 conducted major portion of the investigation in this case, sent notices to A3 to A7 and received the reply. In the reply [Exs.P23 to P26] it is found that A3 to A7 admitted about the supply of Fortum Injection to PW2. The missing of last digit of batch numbers was due to constrain of the computer used by them. This Fortum Injection was purchased by them from M/s.Selvam Medicals. When PW1 and PW5 went to the premises of M/s.Selvam Medicals, it was closed and vacated. The Proprietor of Selvam Pharmacy was not available. Thereafter, the Controller of Drug lodged a complaint to E-1 Mylapore Police in Crime No.166 of 1999, later it was transferred by the order of DGP to the CBCID Police, who arrested Sengaiyan and Devarajan, they confessed about manufacture and selling of spurious drugs. The said Devarajan sold the spurious drugs to A1 medical shop, 57 vials of Fortum Injection was seized from A2, who dealt with spurious drugs handed over the same to A3. Thereafter A3 had supplied to PW2 and St.Isable Hospital which could be seen from the confession of Sengaiyan and Devarajan and was also on the confession of A1 and A2.

12. The trial Court failed to look into these facts and acquitted the respondents/A3 and A4 on a wrong premise. Hence, prayed for setting aside the judgment of trial Court.

13. The learned counsel for the respondent submitted that in this case the said Sengaiyan and Devarajan had not been arrayed as accused. In view of the same, any confession given by them is not admissible as per section 30 of the Indian Evidence Act. It is seen from the evidence of PW11, the Inspector of Police, CBCID Metro Chennai that PW5/Drug Inspector collected statements of A1 and A2 from PW11. Thereafter, A1 and A2 were compelled to give statement implicating A3 to A7 in this case. PW1 conducted inspection on the shop of PW2 on 13.12.1999 and seized one vial of Fortum Injection/MO1 and the same was sent to the Court on 14.12.1999. As per the condition prescribed the Fortum Injection has to be kept below 25 degree centigrade and stored in a dark and cold place. Admittedly, in this case, the said medicine was not preserved as per the conditions. The said drug was also not sent to Government analysis. A1 and A2 who were convicted by the trial Court preferred appeals before the learned V Additional Sessions Judge in C.A.Nos.327 & 335 of 2006. Both the appeals were allowed by the Judgment dated 17.07.2007, against which no appeal has been filed.

14. The learned counsel for the respondents submitted that the witnesses from M/s.Glaxo India Private Limited admitted that they have not produced the register for manufacture of concerned batch of Medicine which would prove and the fact that what is produced and supplied to whom cannot be correlated and proved. The practise of purchasing of their products from the stockist by Pharmacist and others were vouge in the trade. PW6, the Analyst of M/s.Glaxo India Private Limited admitted that no chemical test was conducted in the laboratory. Further he does not have any knowledge of printing technology and he does not have expertise in comparison of words and figures. Thus his report Ex.P35 is of no value.

15. In this case admittedly, MO1 was already marked as material object in C.C.No.922 of 2001 in which PW2 was prosecuted, who pleaded guilty on 25.04.2001 and has also paid the fine amount. Thereafter, PW5 filed a petition for return of the same on 07.12.2001 and once again it is marked as material object in this case on 26.03.2004.

16. In such circumstances, coming into existence of Ex.P35 causes a doubt on which basis the appellant had proceeded against the respondents. Hence, the trial Court had given a well reasoned judgment of acquittal, which need not be interfered with.

17. In order to substantiate his arguments, the learned counsel for the respondent relied upon the citation of Hon’ble Supreme Court in the case of Amery Pharmaceuticals and another v. State of Rajasthan reported in (2001) 4 Supreme Court Cases 382 and drawn the attention of this Court in paragraph Nos.11 to 16 that “Where the Hon’ble Supreme Court laid down the obligation of the Drug Inspector (who takes the sample from a retailer) in the case of where the Drug or Medicine has passed from the manufacturer to a wholesaler (a distributor) and then to retailer as for giving portion of the sample would endup by giving it to the retailer and also to the distributor (from whom the retailer bought the drug)”. In this case no such portion of sample was given to the respondents. It is admitted by the appellant that the drug was not sent to the Government Analyst. In view of the same the said citation is of any axiom to the respondent’s contention.

18. This Court considered the rival submissions and perused the materials placed before.

19. It is seen that one Sengaiyan of Gummidipoondi, who manufactured and sold 800 vials of Fortum injections through Devarajan of Minjur, who in turn sold to A1, A2 sold 360 vials to A3 company. A3 to A7 are the Directors and Manager of A3’s firm. A3, the National Pharmaceuticals had sold one vial of Fortum medicine batch LOTN 730 to PW2, the Proprietor of M/s.Kalapana Pharmacy on 12.08.1999 in bill No.153170. On 13.12.1999 PW1 the Drug Inspector Adyar conducted investigation, verified the stocks in M/s.Kalpana Pharmacy and seized MO1. Ex.P6 is the purchase bill produced by PW2. Since the LOT number found in Ex.P6 and in MO1 not tallied, prosecution was launched against PW2 in C.C.No.922 of 2001. PW2 pleaded guilty on 25.04.2001 for not producing the purchase bill for MO1. Notices were sent to A3 to A7 who replied and explained the reason for missing of eight digits due to the computer constrain and further stated that they have purchased the Fortum injection from M/s.Selvam Pharmacy at Mylapore. M/s.Glaxo India Limited had lodged a complaint with the Controller of Drugs about availability of spurious drugs in the name of their product Fortum injection. The controller of Drugs had directed Drug Inspector to conduct investigation in this regard. The Drug Inspectors PW1, PW5, PW9, PW10 and PW12 conducted inspections.

20. During inspection, the involvement of Sengaiyan and Devarajan had come to light, both accused were elusive absconding. In the meanwhile CBCID Andhra Pradesh as well as the CBCID Chennai, Metro had registered a case and was investigating. The said Sengaiyan and Devarajan were arrested, who gave confessions about their involvement in this case. Strangely in this case the said Sengaiyan and Devarajan have not been arrayed as accused. The prosecution wanted to rely on the confession of Sengaiyan and Devarajan in this case which is hit by section 30 of the Indian Evidence Act.

21. PW11, the Inspector CBCID admitted that he had given the copies of confession to PW5. A1 and A2 had retracted their confession and the witnesses to the confession of A1 and A2 were not examined in this case. Likewise, the witnesses for seizure of medicines from A1 shop had not supported the case of the prosecution. Hence, the confession as well as recovery from A1 and A2 had not been proved and the chain leading to A3 to A7 has snapped. MO1 is seized from PW2, PW2 for seizure of MO1 was prosecuted in C.C.No.922 of 2001 and pleaded guilty and paid the fine amount. That being the admission, Ex.P6 coming into existence becomes doubtful. Further, it is the admitted case that MO1 has not been sent to any Government analysis for chemical examination.

22. PW6, the witness from M/s.Glaxco who physically examined MO1 with MO2, on comparison found difference in printing and font of the letters and stated that MO1 was spurious. PW6 admitted that he is not a person who has acquired any technical knowledge of printing and not an expert. Giving a finding about the drug being spurious, adulterated and misbranded can be done only by a Government analyst and report from the Government analysis will be proof of the same and not from the private manufacturer. Thus the letter Ex.P35 of PW6 is of no consequence.

23. As regards the supply of seizure of Fortum injection to St.Isable Hospital, it is the case that only three vials were left over on the supply of A3 and 19 vials was supplied by M/s.Moti and Company, totally 22 were handed over to one Ramasamy of M/s.Glaxco India Private Limited. The said Ramasamy was not examined in this case. PW4, PW14 as well as the Drug Inspector/PW5 admitted that it cannot be specifically identified which of the three belongs to the respondents among the 22 vials. The appellant had launched a separate prosecution against M/s.Moti and Company, which is pending in C.C.No.34 of 2014 before the concerned Court. In that case, the respondents are not arrayed as accused. The witnesses of M/s.Glaxo Industries admitted that they used to distribute through authorized agents who sell medicines to various pharmacies and thus, trading of Fortum injection of M/s.Glaxo India Private Limited by pharmacist is common in trade.

24. Further, the witnesses PW7, PW8 and PW16 from M/s.Glaxo India Private Limited stated that they are not certain about the batch number which was in circulation and the relevant records could not be produced by them. The seizure from A1 could not be proved.

25. Considering all these aspects, the trial Court on proper analysis of evidence had rightly acquitted the respondents as well as the other accused A5 to A7. In view of the above, this Court finds no reason to interfere with the judgment of the trial Court. Hence, the appeal is dismissed.

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