The Drugs and Cosmetics Act, 1940




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COMMENTS

    The State's obligation of enforce production of qualitative drugs and elimination of the injurious ones from the market must take within its sweep an obligation to make useful drugs available at reasonable price so as to be within the common man's reach; Vincent Panikurlangara v. Union of India; AIR 1987 SC 990.


[27.  Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter (Note: Subs. by Act 68 of 1982, sec.22, for sections 27 and 27A (w.e.f. 01.02.1983))– Whoever, himself or by any other person on his behalf, manufacturers for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,--
(a) any drug deemed to be adulterated under section 17A or spurious under section 17B or which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to a term of life and with fine which shall not be less than ten thousand rupees ;
        (b) any drug—
(i) deemed to be adulterated under section 17A, but not being a drug referred to in clause (a), or
(ii) without a valid licence as required under clause © of section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees :
        Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year and of fine of less than five thousand rupees:
(c) any drug deemed to be spurious under section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than five thousand rupees :
        Provided that the Court may, for any adequate and special reasons, to be recorded in the judgement, impose a sentence of imprisonment for a term of less than three years but not less than one year,
(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine :
        Provided that the Court may for any adequate and special reasons to be recorded in the judgement impose a sentence of imprisonment for a term of less than one year.
COMMENTS
The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purposes of sale and unless all the ingredients of this category are satisfied, section 27 of the Act would not be attracted; Mohd Shabir v. State of Maharashtra, (1979) 1 SCC 568.

27A.  Penalty for manufacture, sale, etc., of cosmetics in contravention of this Chapter –
Whoever himself or by any other person on his behalf manufacturers for sale or for distribution, or sells, or stocks or exhibits or offers for sale –
(i)        Any cosmetic deemed to be spurious under section 17C shall be punishable with imprisonment for a term, which may extend to three years and with fine;
(ii)      Any cosmetic other than a cosmetic referred to in clause (I) above in contravention of any provisions of this Chapter or any rule made thereunder shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both.]

28. Penalty for non-disclosure of the name of the manufacturer, etc. (Note: Subs. by Act 13 of 1964, sec.19, for section 28 (w.e.f. 15.09.1964)) –
Whoever contravenes the provisions of section 18A [(Note: Ins. by Act 68 of 1982, sec.23 (w.e.f. 01.02.1983)) or section 24] shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to [(Note: Subs. by Act 68 of 1982, sec.23, for "five hundred rupees" (w.e.f. 01.02.1983)) one thousand rupees,] or with both.]

28A.  Penalty for not keeping documents, etc., and for non-disclosure of information (Note: Sections 28A and 28B Ins. by Act 68 of 1982, sec.24 (w.e.f. 01.02.1983))–
Whoever without reasonable cause or excuse, contravenes the provisions of section18B shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both.


28B.  Penalty for manufacture, etc., of drugs or cosmetics in contravention of section 26A –

Whoever himself or by any other person on his behalf manufacturers or sells or distributes any drug or cosmetic in contravention of the provisions of any notification issued under section 26A, shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to five thousand rupees.]



29.  Penalty for use of Government Analyst’s report for advertising –
Whoever uses any report of a test or analysis made by the Central Drugs Laboratory or by a Government Analyst, or any extract from such report, for the purpose of advertising any drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27.07.1964)) or cosmetic], shall be punishable with fine which may extend to five hundred rupees.

30. Penalty for subsequent offences (Note: Subs. by Act 11 of 1955, sec.14, for section 30)–


[(1) (Note: Subs. by Act 68 of 1982, sec.25, for sub-section (1) (w.e.f. 01.02.1983)) Whoever having been convicted of an offence, --
(a)      Under clause (b) of section 27 is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to six years and with fine which shall not be less than ten thousand rupees:
        Provided that the Court may, for any adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than two years and of fine of less than ten thousand rupees:
(b)      Under clause (c) of section 27, is again convicted of an offence under that clause shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to four years or with fine which shall not be less than five thousand rupees, or with both.]
(c)      Under clause (d) of section 27, is again convicted of an offence under that clause shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to four years or with fine which shall not be less than five thousand rupees, or with both.]
[(1A) (Note: Ins. by Act 21 of 1962, sec.20 (w.e.f. 27.07.1964)) Whoever, having been convicted of an offence under section 27A is again convicted under that section, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to [(Note: Subs. by Act 68 of 1982, sec.25, for "one thousand rupees" (w.e.f. 01.02.1983)) two thousand rupees], or with both.]
(2) Whoever, having been convicted of an offence under (Note: The words and figures "section 28 or" omitted by Act 13 of 1964, sec.20 (w.e.f. 15.09.1964)) section 29 is again convicted of an offence under the same section, shall be punishable with imprisonment which may extend to [(Note: Subs. by Act 13 of 1964, sec.20, for "two years") ten years], or with fine, or with both.]
COMMENTS
The first and the second or the subsequent offences must all relate to the branches of the provisions of this Act; Kamal Singh v. State , 1957 All LJ 9.

31. Confiscation –
[(1)(Note: Re-numbered as sub-section (1) by Act 35 of 1960, sec.9 (w.e.f. 16.03.1961))] Where any person has been convicted under this Chapter for contravening any such provision of this Chapter or any rule made thereunder as may be specified by rule made in this behalf, the stock of the drug [(Note: Ins. by Act 21 of 1962, sec.21 (w.e.f. 27.07.1964)) or cosmetic] in respect of which the contravention has been made shall be liable to confiscation [(Note: Added by Act 13 of 1964, sec.21 (w.e.f. 15.09.1964)) and if such contravention is in respect of –
[(i)  (Note: Subs. by Act 68 of 1982, sec.26, for clause (i) (w.e.f. 01.02.1983)) Manufacture of any drug deemed to be misbranded under section 17, adulterated under section 17A or spurious under section 17B ; or]
(ii) [(Note: Subs. by Act 68 of 1982, sec.26, for certain words (w.e.f. 01.02.1983)) manufacture for sale, or for distribution, sale, or stocking or exhibiting or offering for sale,] or distribution of any drug without a valid licence as required under clause (c) of section 18, any implements or machinery used in such manufacture, sale or distribution and any receptacles, packages or coverings in which such drug is contained and the animals, vehicles, vessels or other conveyances used in carrying such drug shall also be liable to confiscation].
[(2) (Note: Sub-section (2) ins. by Act 35 of 1960, sec.9, subs. by Act 21 of 1962, sec.21 (w.e.f. 27.07.1964)) Without prejudice to the provisions contained in sub-section (1), where the Court is satisfied, on the application of an Inspector or otherwise and after such inquiry as may be necessary that the drug or cosmetic is not of standard quality [(Note: Subs. by Act 13 of 1964, sec.21, for "or is a misbranded drug" (w.e.f. 15.09.1964)) or is a [(Note: Subs. by Act 68 of 1982, sec.26, for certain words (w.e.f. 01.02.1983)) misbranded, adulterated or spurious drug or misbranded or spurious cosmetic,] such drug or, as the case may be, such cosmetic shall be liable to confiscation.]
31A.  Application of provisions to Government departments (Note: Ins. by Act 13 of 1964, sec.22 (w.e.f. 15.09.1964)) –
The provisions of this Chapter except those contained in section 31 shall apply in relation to the manufacture, sale or distribution of drugs by any department of Government as they apply in relation to the manufacture, sale or distribution of drugs by any other person.]
32. Cognizance of offences –
(1) No prosecution under this Chapter shall be instituted except by an Inspector [(Note: Ins. by Act 71 of 1986, sec.3 (w.e.f. 15.09.1987)) or by the person aggrieved or by a recognised consumer association whether such person is a member of that association or not.]
(2)      No court inferior to that of [(Note: Subs. by Act 68 of 1982, sec.27, for "a Presidency Magistrate or of a Magistrate of the first class" (w.e.f. 01.02.1983)) a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter.
(3)      Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission, which constitutes an offence against this Chapter.

32A.  Power of Court to implead the manufacturer, etc. (Note: Ins. by Act 13 of 1964, sec.23 (w.e.f. 15.09.1964)) –
Where, at any time during the trial of any offence under this Chapter alleged to have been committed by any person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, the Court is satisfied, on the evidence adduced before it, that such manufacturer or agent is also concerned in that offence, then, the Court may, notwithstanding contained [(Note; Subs. by Act 68 of 1982, sec.28, for "in sub-section (1) of section 351of the Code of Criminal Procedure, 1898" (w.e.f. 01.02.1983)) in sub-sections (1), (2) and (3) of section 319 of the Code of Criminal Procedure, 1973], proceed against him as though a prosecution had been instituted against him under section 32.]

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