The Drugs and Cosmetics Act, 1940




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COMMENTS

        On a reading of section 18A and sub-section (4) of section 23 together, it is clear that out of the four portions into  which the sample has been divided one portion should be sent to the person, if any, whose name and address and other particulars have been disclosed under section 18A; In re: R. Dayalan, 1978 Cri Lj 1852. (1979) 1 FAC 29.




18A. Disclosure of the name of the manufacturer, etc. –

Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.]



18B.  [Note: Ins. by act 68 of 1982, sec. 15) w.e.f. 01.02.1983)) Maintenance of records and furnishing of information —
Every person holding a licence under clause (c) of section 18 shall keep and maintain such records, registers and other documents as may be prescribed and shall furnish to any officer or authority exercising any power or discharging any function under this Act such information as is required by such officer or authority for carrying out the purposes of this Act.]

19. Pleas –
(1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic] in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale.
(2) [(Note: Subs. by Act 13 of 1964, sec.15, for certain words (w.e.f. 15.09.1964)) For the purposes of section 18 a drug shall not be deemed to be misbranded or [(Note: Subs. by Act 68 of 1982, sec.16, for "adulterated" (w.e.f. 01.02.1983) adulterated or spurious] or to be below standard quality nor shall a cosmetic be deemed to be misbranded or to be below standard quality] only by reason of the fact that –
(a). There has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or preparation of the drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic] as an article of commerce in a   state fit for carriage or consumption, and not to increase the bulk, weight or measure of the drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic] or to conceal its inferior quality or other defects; or
(aa)    (Clauses (aa) inserted by Act 11 of 1955, sec.10, omitted by Act 13 of 1964, sec. 15 (w.e.f. 15.09.1964))
(b)       In the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it; provided that this clause shall not apply in relation to any sale or distribution of the drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic] occurring after the vendor or distributor became aware of such intermixture.
[(3) (Note: Subs. by Act 13 of 1964, sec.15, for sub-section (3) (w.e.f. 15.09.1964)) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves –
(a)      That he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;
(b)       That he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened and remained in the same state as when he acquired it.]

COMMENTS

        All that the prosecution is required to prove in order to establish the contravention of section 18 is the fact that the accused had sold or exhibited for sale the drug which was not of standard quality or which was a misbranded drug. If the accused want to get rid of the effect of the effect of the prosecution evidence then it is for them to establish the defences which are available to them under sub-section (3) of section 19 of the Act; Public Prosecutor v. Hatambhai, AIR 1969 AP 99.


 

[20.  Government Analysts (Note: Subs. by Act 35 of 1960, sec.4, for the original sections 20 and 21 (w.e.f. 16-3-1991))–


(1) The State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Government Analysts for such areas in the State and in respect of such drugs or [(Note: Subs. by Act 21 of 1962, sec.16, for "class of drugs" (w.e.f. 27.07.1964)) classes of drugs or such cosmetics or classes of cosmetics] as may be specified in the notification.
(2) The Central Government may also, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Government Analysts in respect of such drugs or [(Note: Subs. by Act 21 of 1962, sec.16, for "class of drugs" (w.e.f. 27.07.1964)) classes of drugs or such cosmetics or classes of cosmetics] as may be specified in the notification.
(3)      Notwithstanding anything contained in sub-section (1) or sub-section (2), neither the Central Government nor a State Government shall appoint as a Government Analyst any official not serving under it without the previous consent of the Government under which he is serving.
[(4)      (Note: Ins. by Act 68 of  1982, sec.17 (w.e.f. 01.02.1983)) No person who has any financial interest in the import, manufacture or sale of drugs or cosmetics shall be appointed to be a Government Analyst under sub-section (1) or sub-section (2) of this section.]

COMMENTS

        The Director of Central Laboratory is also a Government Analyst; Ram Shankar Misra v. State of U.P., (1980) 1 SCC 255.



21. Inspectors –
(1) The Central Government or a State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be.
(2)    The powers which may be exercised by an Inspector and the duties which may be performed by him, the drugs or [(Note: Subs. by Act 21 of 1962, sec.17 for "class of drugs" (w.e.f. 27.07.1964)) classes of drugs or cosmetics or classes of cosmetics] in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed shall be such as may be prescribed.
(3)    No person who has any financial interest [(Note: Subs. by Act 21 of 1962, sec.17, for "in the manufacture, import or sale of drugs" (w.e.f. 27.07.1964)) in the import, manufacture or sale of drugs or cosmetics] shall be appointed to be an Inspector under this section.
(4)    Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, and shall be officially subordinate to such authority [(Note: Ins. by Act 68 of 1982, sec.18 (w.e.f. 01.02.1983)), having the prescribed qualifications,] as the Government appointing him may specify in this behalf.]

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