The Drugs and Cosmetics Act, 1940




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COMMENTS

(i)  As required by sub-section (4) (iii) of section 23 read with section 18A, it is the duty of the Drugs Inspector to supply to the person whose particulars are disclosed under section 18A the third portion of the sample; Agarwal Medical and General Stores v. State of M.P. AIR 1973 MP 255.


(ii)  The validity of the first proviso to section 23(3) cannot be challenged on the ground that it offends equal protection of law guaranteed by Article 14 of the Constitution as there is no purpose in having an extra portion in cases where the drug is seized from the manufacturer himself; T. Babulal v. Drugs Inspector, Madras, 1969 Cri LJ 699: (1970) 1 MLJ 124.
(iii)  When the procedure mentioned in section 23 is not followed in a case, the report of the Government Analyst cannot be treated as conclusive evidence; Dharam Deo Gupta v. State, AIR 1958 All 865: 1958 Cri LJ 1453.

24. Persons bound to disclose place where drugs or cosmetics are manufactured or kept –
Every person for the time being in charge of any premises whereon any drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic] is being manufactured or is kept for sale or distribution shall, on being required by any Inspector so to do, be legally bound to disclose to the Inspector the place where the drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic] is being manufactured or is kept, as the case may be.
25. Reports of Government Analysts –
(1) The Government Analyst to whom a sample of any drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic] has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it is signed report in triplicate in the prescribed form.
(2)      The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken [(Note: Subs. by Act 13 of 1964, sec.17, for certain words (w.e.f. 15.09.1964)) and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18A], and shall retain the third copy for use in any prosecution in respect of the sample.
(3)      Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken [(Note: Subs. by Act 13 of 1964, sec.17, for "or the said warrantor" (w.e.f. 15.09.1964)) or the person whose name, address and other particulars have been disclosed under section 18A] has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report.
(4)    Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in contravention of a Government Analyst’s report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused cause the sample of the drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic] produced before the Magistrate under sub-section (4) of Section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
(5)      The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct.

COMMENTS

(i)     Section 25 does not offend Article 21 of the Constitution as it has sufficiently protected the basic right of an accused to defend himself; T. Babulal v. Drugs Inspector, Madras, 1969 Cri LJ 699: (1970) 1 M LJ 124.


(ii)     There can be no prejudice to the accused if the Drugs Inspector, instead of sending the sample to the Government Analyst, sends it to a higher authority namely the Central Drugs Laboratory; Ram Shankar Misra v. State of U.P., (1980) 1 SCC 255.
(iii)     The Public Analyst can analyse the sample himself or cause it to be analysed by some other person; Bechan v. State, AIR 1966 All 91:1966 Cri LJ 122.
(iv)     It is not necessary to mention in the analysis report the methods or technological processes adopted by the Analyst; Dhian Singh v.Municipal Board, Saharanpur, AIR 1970 SC 318: (1969) 2 SCC 371.
(v)     If accused wants to call the Public Analyst as a witness it is his duty to take appropriate steps; Municipal Corporation of Delhi v. Asa Ram, 1972 Cri LJ 1651 (Del.).

26. Purchaser of drug or cosmetic enabled to obtain test or analysis –
Any person [(Note: Ins. by Act 71 of 1986, sec.2 (w.e.f. 15.09.1987)) or any recognised consumer association, whether such person is a member of that association or not] shall, on application in the prescribed manner and on payment of the prescribed fee, be entitled to submit for test or analysis to a Government Analyst any drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic] [(Note: Subs. by Act 71 of 1986, sec.2) purchased by him or it] and to receive a report of such test or analysis signed by the Government Analyst.
Explanation [(Note: Added by Act 71 of 1986, sec.2)– For the purposes of this section and section 32, "recognised consumer association" means a voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force.]

26A.  Powers of Central Government to prohibit manufacture, etc., of drug and cosmetic in public interest (Note: Ins. by Act 68 of 1982, sec.21 (w.e.f. 01.02.1983)) –
Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied, that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic value claimed or purported to be claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do, then, that Government may, by notification in the Official Gazette, prohibit the manufacture, sale or distribution of such drug or cosmetic.]

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