No Prosecution Under Drugs & Cosmetics Act Against A "Purported Manufacturer"; Must Ascertain Identity Of Actual Manufacturer: JKL High Court

The petitioner M/s Sundaram Surgicals, purported to be the manufacturer of the drug, which was found to be of sub-standard quality, contended that during the investigation of the case, respondent-Drugs-Inspector had collected the material, suggesting that the petitioner is not the manufacturer of the drug in question yet they chose to launch prosecution against the petitioner.

Petitioner further submitted that once it was established that the drug in question was not manufactured by the petitioner, Sundaram Surgicals, it could not have been prosecuted for the offence relating to sub-standard quality of the drug, as it was a case of spurious drugs which attracts the provisions of sec 17 (B) e of the Drugs and Cosmetics Act and hence the purported manufacturer could not be prosecuted.

Contesting the plea the respondent argued that that the question whether or not the petitioner was the actual manufacturer of the drug in question, cannot be decided by this Court in these proceeding.

After considering the rival contentions Justice Sanjay Dhar observed that the record reveals that Director of Drugs Control, Tamil Naidu has intimated to the Drugs Controller, Jammu that the subject drug was not manufactured by the petitioner.

Observing that since it has been established that the subject drug was not truly a product of petitioner, M/s Sundaram Surgicals, of whom it purports to be a product, the court found out it to be a case of spurious drug as defined in Section 17 B (e) of the Act.

"The prosecution for commission of offence under section 18 (a) (i), read with section 27 (c) of the Act cannot be launched against a purported manufacturer of whom the subject drug is truly not a product. It is only the dealer, retailer and actual manufacturer, who can be prosecuted for sale, stock or exhibition of spurious drug", the bench explained.

Pointing out to the fact that since respondent/complainant has not conducted any investigation in the case so as to ascertain the identity of the actual manufacturer of the subject drug, after it came to know that the petitioner is not the actual manufacturer of the drug in question, the court concluded that on the basis of insufficient material, which does not prima facie show complicity of the petitioner, it could not have been prosecuted.

Accordingly, the prosecution launched against the petitioner, M/s Sundaram Surgicals, is liable to be quashed, the bench concluded.

Case Title: M/s Sundaram Surgicals Vs Drug Inspector Doda.

Citation: 2023 LiveLaw (JKL) 31

Coram: Justice Sanjay Dhar

Counsel For Petitioner: Mr. Sachin Gupta, Advocate Mr. Hamzah Hussaini, Advocate

Counsel For Respondent: Mr SS Nanda Sr AAG

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