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TMI Blog1991 (1) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... Essential Commodities Act, 1955 (hereinafter referred to as the Act ) and accordingly convicted under Section 7 of the Act. Respondent No. 1 firm was sentenced to a fine of Rs. 2,000/- while respondents 2 and 3 who were the managing partner and pharmacist of the firm were sentenced to three months simple imprisonment. The High Court of Kerala at Ernakulam (hereinafter referred to as the High Court ) allowed their appeal against the conviction and sentence and acquitted all of them. Hence, this special leave petition against their acquittal. 2. Leave granted. 3. The allegation on which the prosecution of the respondents was based is that they collected Rs. 90/- in excess of the maximum retail price fixed for the sale of 15 tablets of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drugs also). In the result, I allow this appeal and set aside the conviction and sentence. The appellants are acquitted and are directed to be set at liberty. 5. The real question for decision in the present case is the correctness of the construction made by the High Court of the provisions of the Order . Shri P.S. Poti, learned counsel for the appellants contended that the grievance in this appeal is really to the construction made by the High Court of the provisions of the Order which is affecting a large number of similar matters and not to the outcome of individual matter before us. Learned counsel contended that the appellants are not much interested in assailing the acquittal in the present individual matter, but the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every manufacturer or importer of a formulation to furnish to the dealers, State Drug Controllers and the Government, a price list showing the price at which the formulation is sold to a retailer and every dealer is required to display the price list at a conspicuous part of his business premises. Part 20 requires every manufacturer, importer or distributor of a formulation to display on label of the container the maximum retail price of that formulation. Paras 18, 21 and 22, the construction of which is in dispute, read as under:- 18. Certain provisions of this Order to apply to formulations not included in Category I, Category II or Category III of Third Schedule. The provision of this Order, other than those contained in paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of the retail price fixed for their sale is not a contravention of any provision of the Order to attract the punishment provided under Section 7 of the Essential Commodities Act, 1955. It has also been held by the High Court that none of these two medicines is a formulation as defined in clause (f) of para 2 of the Order but merely a bulk drug, which fact also excludes the application of para 21 of the Order. It appears that this position was not seriously contested even by the learned public prosecutor in the Courts below. In our opinion, such a view results from a mis-reading of the material provisions of the Order. 8. The definition of bulk drug given in clause (a) of para 2 shows that it means any substance which is used as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to attract the punishment provided in Section 7 of the Essential Commodities Act, 1955? In our opinion, it is not so. There is no controversy that by an amendment made in 1987 to which we shall refer later, the matter has been placed beyond the scope of any argument. However, even prior to that amendment, the matter is clear by the express provision contained in para 18 as it existed even then. 10. Para 18 clearly says that the provisions of this Order other than those contained in paragraphs 10 to 14 (both inclusive) shall apply to any formulations not specified in Category I, Category II or Category III of the Third Schedule. It is plain that the provisions of the Order except paragraphs 10 to 14 which have been expressly excluded, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the sale of these two medicines for an amount in excess of the maximum retail price fixed is not punishable under para 21 read with para 18 of the Order. 12. The only question now is of the order we should make in this matter. Shri T.S. Krishnamurthy Iyer, learned counsel for the respondents very fairly stated that the construction we have made of the several provisions of the 1979 Order including paras 18 and 21 thereof cannot be seriously disputed. However, he contended that the respondents had raised several defences none of which has been considered by the High Court since it acquitted the respondents only on the construction it made of these provisions. He, therefore, argued that setting aside the High Court s order should no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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