Drug Retailer Cannot Escape Liability In Case Of Spurious Drug Merely Because He Obtained It From Licensed Dealer: JKL High Court

Justice Sanjay Dhar clarified that a retailer can seek discharge only if he shows that he has acquired the drug from a duly licensed manufacturer, distributor or dealer and that he did not know and could not, with reasonable diligence, ascertain contravention of the provisions of the section and further that the drug or the cosmetic was properly stored and remained in the same state as, when he acquired it.

However, the burden to prove the aforesaid three conditions would be upon the concerned retailer.

The observations were made while hearing a plea in terms of which the petitioner had challenged the complaint filed by the respondent-Drugs Inspector, Doda alleging commission of offence under section 18(a)(i), read with section 27 (c) of the Drugs and Cosmetics Act, 1940.

The petitioner had primarily challenged the complaint and the proceedings emanating therefrom on the ground that once it was shown that it is a case of spurious drugs and there is evidence on record to show that the said petitioner had purchased the subject drug from a duly licenced dealer, he could not have been prosecuted.

The Petitioner further contended that even if it is a case of sub-standard quality of the drug, still then in view of the provisions contained in Section 19 (3) of the Act, unless it is shown that the drug was not properly stored, he could not have been prosecuted.

After considering the contentions Justice Dhar observed whether it is a case of spurious drug or sub-standard quality drug, the retailer cannot escape his liability merely because he has obtained the same from a licensed dealer.

Elaborating further on the matter Justice Dhar observed that section 27 of the Act clearly provides that any person, who manufacturers for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes any drug, deemed to be spurious drug under section 17 B of the Act, is liable to punishment.

"There is material on record as also a specific allegation in the impugned complaint that the petitioner had stored the drug in question and exhibited it for sale in his shop and the said drug was found to be spurious in nature", the bench recorded, while adding "Once there is material on record to support this allegation, it cannot be stated that no offence is made out against the petitioner".

The court observed that there is nothing on record to show that while the drug was in possession of the petitioner, it had been properly stored and remained in the same state as when he acquired it. These are the facts, which have to be established by the petitioner during the course of the trial, said the court.

Accordingly the bench found the petition devoid of any merit and dismissed the same.

Case Title: Sundaram Surgicals Vs Drug Inspector Doda.

Citation: 2023 LiveLaw (JKL)

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