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TMI Blog1981 (1) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... he term 'manufacture' occurring in section 3(f) of the Act which is as follows:- manufacture in relation to any drug or cosmetic includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its sale and distribution but does not include the compounding or dispensing of any drug, or the packing of any drug or cosmetic in the ordinary course of retail business; and 'to manufacture' shall be construed accordingly; On February 27, 1970 on a search of the business premises of the first appellant, a Drugs Inspector seized 42 items of drugs from a room, 33 of which were not in the approved list of drugs appended to the licence issued to the first appellant. The third appellant who is the Manager of the firm and was present during the search failed to disclose the source from which these drugs had been acquired. To a notice issued under section 18A of the Act calling upon the first appellant to disclose the source of acquisition of the drugs seized, the reply, signed by the third appellant on behalf of the firm, was a denial of the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed on the third appellant were directed to run concurrently. The only contention raised before us by Mr. A. K. Sen for the appellants was that the additional sentence of imprisonment on the third appellant for the same offences was illegal. Mr. Sen's contention is right. But in sentencing the second and the third appellants to pay a fine only for the offence under section 18(c), the High Court appears to have overlooked the provisions of section 27 (a) (ii) which makes a sentence of imprisonment compulsory. Chapter IV of the Act, headed Manufacture, Sale and Distribution of Drugs and Cosmetics includes section 16 of section 33A. Section 18 provides inter alia : no person shall himself or by any other person on his behalf: (a) Manufacture for sale, or sell, or stock or exhibit for sale or distribute- (i) any drug or cosmetic which is not of standard quality: (b) x x x (c) manufacture for sale, or sell, or stock or exhibit for sale or distribute any drug or cosmetic, except under, and in accordance with the conditions of a licence issued......... x x x Section 18A in these terms: Disclosure of the name of manufacture:- Every person not being th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act if he proves that the offence was committed without his Knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.- For the purpose of this section- (a) 'company' means a body corporate, and includes a firm or other association of individuals; and (b) 'director' in relation to a firm means a partner in the firm. The High Court held and rightly that by virtue of section 34(1) of the Act, it will have to be held that both respondents 2 and 3 [present appellants 2 and 3] are deemed to be guilty of these offences committed by respondent No. 1 [the first appellant in this Court] . In view of the explanation appende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 28. For the contravention of provisions of section 18A, section 28 prescribes imprisonment for a term which may extend to one year or with fine which may extend to five hundred rupees or with both. Clearly therefore no fine in excess of five hundred rupees could be imposed for an offence under section 18A. In the result, while maintaining the conviction of the appellants, we remit the case to the High Court; the High Court will consider again on the findings already recorded the question of sentence-(a) for the offence under section 18(c) punishable under section 27(a) (ii) so far as appellants 2 and 3 are concerned, and (b) for the offence punishable under section 28 of which all the three appellants have been found guilty,-and pass appropriate sentences. The appeal is allowed to the extent and in the manner indicated above. Writ Petition No. 2929 of 1980 The writ petition questions the validity of the order of the High Court punishing the third appellant in the above appeal (Criminal appeal No. 120 of 1975) twice for the same offences with the aid of section 34(2) of the Act. In view of our decision in the appeal no order is necessary on the writ petition. Criminal App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir stock and exhibiting for sale drugs not of standard quality and further that they were guilty of an offence under section 18(a)(vi) for disposing of the aforesaid quantities of Liquid Paraffin I.P. Batch No. 1 in spite of the prohibitory order under section 22(1) (c) thus contravening rule 54A of the Rules framed under the Act. Both these offences are punishable under section 27(b) of the Act. The trial court acquitted the accused but on appeal preferred by the State of Karnataka the High Court set aside the order of acquittal and convicted the accused under section 18(a)(i) and section 18(a)(vi), and sentenced each of the accused to pay a fine of ₹ 1000/- on each count : the second and the third appellants were to undergo simple imprisonment for one month in default of payment. We see no reason to interfere with the findings of fact recorded by the High Court. The only point argued before us on behalf of the appellants which was also urged in the High Court was that they got the supplies of these drugs from the firm Rajasthan Pharmaceutical Laboratory who were the packers and the appellants did not know that the drugs were sub- standard. The High Court rightly pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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