AMERY PHARMACEUTICALS AND ANR. versus STATE OF RAJASTHAN

Citation: [2001] 2 S.C.R. 449 · Decided: 16-03-2001 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed

Judgment (excerpt)

AMERY PHARMACEUTICALS AND ANR. 
A 
v. 
~ 
STATE OF RAJASTHAN 
MARCH 16, 2001 
[K.T. THOMAS AND R.P. SETHI, JJ.] 
B 
Drugs and Cosmetics Act, 1940-Sections 18A, 23(4)(iii), 25, 27, 32A-
Drug sample ob1ainedf1vm re1ailer found lo be adulteraled, misbranded and 
spurious-Man4acturer sold !he drug tl11vugh a distributor to 1~taile1~ 
Pmseculion pmceedings againsl !he manufac1u1u-Right of manufactuiu lo c 
gel a sample of !he drug and repo11 of Govemmenl Analyst-Held, manufac-
lurer no/ enlilled lo oblain sample and repon of Govemmenl Analysl-
Man~factwu has altemalive remedy lo direcl Coun to give sample lo Cenlral 
Drugs Laboratory-Acquilling offending manufacturer on legislalive lacuna 
would be hazanious lo public health-Constitulion of India, 1950-A11icle 21. 
D 
Drug Inspector purchased a drug formulation from a medical retail 
shop for the purpose of sampling it under the provisions of Drugs and 
Cosmetics Act, 1940. The sample was found to he a misbranded, adulter-
ated and spurious drug after testing hy a Government Analyst. Appellant-
concern was found to he manufacturer of the drug, who through a dis-
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trilmtor, sold it to the retailer. A complaint was filed hy the Inspector 
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against the appellant-concern and its proprietor, distributor and retailer, 
for offences under Section 27(h), (c) and (d) of the Act. The Magistrate 
framed charges against the appellants and discharged the remaining ac-
cosed. The Appellate Court dismissed the revision petition of the appcl-
lants hut deleted the charge under section 27(c) of the Act. The High Court 
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dismissed the appeal of the appellants. 
1f' 
In appeal to this Court, the appellants contended that the Inspector 
did not give a portion of the sample to the appellants on which charges 
were framed thereby depriving a valuable right to test the correctness of 
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the report of the Government Analyst; that the provisions contained in 
Section 23(4)(iii) of the Act were not complied with; that the report of the 
Government Analyst would not be binding on the ground of non-supplying 
the sample; that the provision in the Act which di•11bles an accused from 
disproving the correctness of the facts contained in a document is unfair, 
unreasonable and oppres.,ive; and that it amounts to violation of the fun-
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449 
450 
SUPREME COURT REPORTS 
[2001] 2 S.C.R. 
A 
damental right under Article 21 of the Constitution. 
B 
c 
D 
The respondent-State contended that it is open to the manufacturer 
in prosecution cases against him to aduce evidence for controverting the 
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facts stated in the reports of the Government Analyst under the provisions 
of the Act. 
Dismissing the appeal, the Court 
HELD : I. The obligation of the Inspector under Section 23(4) read 
with Section ISA· of the Drugs and Cosmetics Act, 1940 is to give one 
portion of the sample to the person from whom be took the sample, the 
second portion to the Government Analyst, the third portion to the Court 
and the fourth portion to the person whose name and address, etc. were 
disclosed by the vendor. Thus, in a case where the drug or medicine has 
passed from the manufacturer to a distributor and then to the retailer, the 
obligation of the Inspector as for giving portions of the sample would end 
up by giving it to the retailer and also to the distributor from whom the 
retailer bought the drug. (455-E; F] 
Stale of Haryana v. Brij Lal Mittal, (1998] 5 SCC 343, referred to. 
Drugs Inspector v. Mis Modem Drugs & Anr., (1982) Drugs Cases 26 
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(Madras); Kiran Dev Singh v. State of Himachal Pradesh, (1990) Drugs 
Cases 324 (HP) and Vetcha Venkata Raju v. Stale of Andhra Pradesh, (1994) 
Drugs Cases 94 (AP), referred to. 
2. Any legal provision which snarls an indicted person without af· 
fording any remedy to him to disprove an item of evidence which could 
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nail him down cannot be approved as consistent with the philosophy en-
shrined in Article 21 of the Constitution of India, 1950. (459-D] 
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3. The Court should lean to an interpretation as would avert the 
.,. 
consequences of depriving an accused of any remedy against such evi-·· 
deuce. He must have the right to disprove or controvert the facts stated in 
such a document at least at the first tier. It is possible to interpret the 
provisions in such a way as to make a remedy available to him. The 
conclusiveness meant in section 25(3) of the Act need be read in juxtaposi-
tion with the persons referred to in the sub-section. In other words, ff a

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