Source: Punjab and Haryana High Court

Why in News?

Justice Manjari Nehru Kaul has observed that the police have no authority to search or seize the alleged illegal product in contravention of the Drugs and Cosmetics Act,1940, the power to seize would lie with the Inspector appointed under the act.

• The Punjab and Haryana High Court gave this judgment in the case of Gaurav Chawla v. State of U.T. Chandigarh.

What is the Background of Gaurav Chawla v. State of U.T. Chandigarh?

• The petitioner was booked under the Drugs and Cosmetics Act, 1940 for allegedly offering to sell Remdesivir injections at a price exceeding the regulated rate, without being in possession of any requisite licence.
• The police seized alleged injections and a First Information Report (FIR) was registered against the petitioner, a director of the company who started to manufacture the injections, along with the other co-accused.
• The court observed that any search and seizure not conducted in accordance with law, as seen in the instant case, would hold no weight during trial for convicting the accused based on such evidence.
• Therefore, owing to the defective recovery process, there would arise no possibility of imposition of penalty under Section 7 of the Essential Commodities Act, 1955.
• It further considered the question of whether the police possessed the power to seize the injections and conduct an investigation with respect to offences under Chapter IV of The Drugs and Cosmetics Act, 1940 read with Section 7 of the Essential Commodities Act.
• The Drugs and Cosmetics Act, 1940 being a special enactment supersedes the Code of Criminal Procedure, 1973 (CrPC) and Essential Commodities Act, thereby precluding the police from taking refuge under the CrPC or Essential Commodities Act to usurp the authority of a Drugs Inspector.

What was the Court’s Observation?

• It is abundantly clear that the police had no power to conduct investigation qua offences under Section 27 of The Drugs and Cosmetics Act,1940 and even the FIR could not have been registered under the said provisions.

What is Drugs and Cosmetics Act,1940?

• The Drugs and Cosmetics Act, 1940 is an act of the Parliament of India which regulates the import, manufacture and distribution of drugs in India.
• The primary objective of the act is to ensure that the drugs and cosmetics sold in India are safe, effective and conform to state quality standards.

What are the Legal Provisions Involved?

• Section 22 of Drugs and Cosmetics Act, 1940:
  • Section 22 deals with ‘Power of Inspector', which says that the power to conduct any search and seizure is vested solely with the Drug Inspector.
• Section 27 of Drugs and Cosmetics Act, 1940:
  • Section 27: Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.
  • Whoever, himself or by any other person on his behalf, manufactures 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 and 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,1860 (IPC) 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 ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more]:

Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause:

Provided further that where the use of the adulterated or, spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realised from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulterated or spurious drugs referred to in this clause.

Explanation-For the purposes of the second proviso, the expression ‘relative’ means-

(i) spouse of the deceased person; or

(ii) a minor legitimate son, and unmarried legitimate daughter and a widowed mother; or

(iii) parent of the minor victim; or

(iv) if wholly dependent on the earnings of the deceased person at the time of his death, a son or a daughter who has attained the age of eighteen years; or

(v) any person, if wholly or in part, dependent on the earnings of the deceased person at the time of his death-

(a) the parent; or

(b) a minor brother or an unmarried sister; or

(c) a widowed daughter-in-law; or

(d) a widowed sister; or

(e) a minor child of a pre-deceased son; or

(f) a minor child of a pre-deceased daughter where no parent of the child is alive; or (g) the paternal grandparent if no parent of the member is alive;]

(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 (c) of Section 18

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 one lakh rupees or three times the value of the drugs confiscated, whichever is more]:

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 three years and of fine of less than one lakh 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 less than seven years but which may extend to imprisonment for life and with fine which shall not be three lakh rupees or three times the value of the drugs confiscated, whichever is more]:

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 seven years but not less than three years and of fine of less than one lakh rupees];

(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 which shall not be less than twenty 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.]