After conviction, drug manufacturer can’t be tried separately for same offence: HC
JAMMU, Dec 19: Once convicted for preparation of sub-standard drug a manufacturer cannot be tried separately under Drugs and Cosmetics Act, 1940 even if the samples of same drug are lifted from different places and the same would amount to double jeopardy.
This was held by Justice Wasim Sadiq Nargal while dealing with a petition filed by M/s Eaton Laboratories, Zainakote Srinagar seeking quashing of criminal proceedings initiated against the company under Drugs and Cosmetics Act, 1940 in the court of Chief Judicial Magistrate, Anantnag and 4th Additional District Judge Srinagar respectively with alternate prayer to club the two complaints for composite trial.
The first complaint was lodged after the Drug Inspector Bijbehara under the authority conferred on him by Section 22 of the Drugs and Cosmetic Act lifted a sample of drug namely Emlo-A Batch No.9159 manufactured by M/s Eaton Laboratories from the pharmacy shop namely M/s Zargar Medical Agency Bijbehara.
On testing the Government analyst declared the drug sample to be “not of standard quality”. The copy of the test report was sent to M/s Eaton Laboratories and later a complaint was filed against the company as well as pharmacy shop under Section 18 (a)(i) read with Section 27 (d) of the Drugs and Cosmetics Act, 1940 before the court of Chief Judicial Magistrate, Anantnag.
Exactly eight days later, the Drug Inspector lifted the same drug sample and with same batch number from the premises of M/s Eaton Laboratories and the same was also found to be “not of standard quality” and accordingly separate complaint was filed against the company before the court of 4th Additional Sessions Judge Srinagar.
In respect of complaint before the court of CJM Anantnag the drug manufacturer and pharmacy made confessional statements and accordingly the court held the company guilty for manufacturing the substandard drug and pharmacy for sale of such drugs, which constitute offence under Section 18 (a)(i) read with Section 27 (d) of the Drugs and Cosmetics Act, 1940. However, the court asked the company as well as the pharmacy to pay fine only to the tune of Rs 20,000 each with a warning for future conduct.
The question before the High Court was whether the continuation of proceedings in the second complaint before the court of 4th Additional Sessions Judge Srinagar would amount to the petitioner being tried twice for the same offence on the same facts.
After hearing both the sides, High Court observed that Section 18 (a) (i) read with Section 27 (d) postulate only four separate categories of cases—manufacture for sale; manufacture for distribution; actual sale and stocking or exhibition for sale or distribution of any drugs.
Stating that petitioner’s case falls within the category of manufacture for sale, High Court said, “the petitioner has already been convicted for committing an offence under Section 18 (a) (i) read with Section 27 (d) of Drugs and Cosmetics Act, 1940 for manufacturing for sale of a drug as such continuation of subsequent complaint for the same offence on the same set of facts will amount to petitioner being prosecuted and punished for the same offence more than once”.
In both the complaints the only allegation against the petitioner was that it manufactures for sale a drug which was found to be “not of standard quality”, which for all purposes will constitute a single occurrence because test of law will be “manufacture for sale” not the “actual sale” as per Section 18 (a) (i) read with Section 27 (d) of Drugs and Cosmetics Act, 1940, High Court said.
“In essence, M/s Eaton Laboratories has been convicted for an offence–manufacture for sale of sub-standard drug by the court of Chief Judicial Magistrate, Anantnag. As such, the petitioner cannot be tried for commission of offence subsequently in another court”, Justice Nargal said, adding “it is well settled law that no person shall be brought to trial for the same offence and the same subject matter twice”.
Pointing towards the Supreme Court judgment, High Court held that continuation of proceedings in the second complaint would amount to double jeopardy. Accordingly, High Court allowed the petition and resultantly, the proceedings pending before the court of 4th Additional District & Sessions Judge Srinagar against the petitioner initiated under the provisions of Drugs and Cosmetics Act, 1940 were quashed in entirety.