Punjab-Haryana High Court
Bhupinder Singh vs State Of Haryana Th District Drug ... on 25 March, 2025
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
I. CRR-1830-2014
Ved Parkash and Another . . . . Pe&&oners
Vs.
State of Haryana . . . . Respondent
II. CRR-1860-2014
A(ar Singh Phogat . . . . Pe&&oner
Vs.
State of Haryana through District Drug Inspector . . . . Respondent
III. CRR-1861-2014
Bhupinder Singh . . . . Pe&&oner
Vs.
State of Haryana through District Drug Inspector . . . . Respondent
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Reserved on: 18.03.2025
Pronounced on: 25.03.2025
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
Argued by:- Mr. Sanket Bhandari, Advocate for the
pe!!oners in CRR-1830-2014.
Mr. Jagjeet Beniwal, Advocate for the
pe!!oner in CRR Nos.1860 and 1861 of 2014.
Mr. R.K.S. Brar, Addl. AG, Haryana.
****
DEEPAK GUPTA, J.
The three criminal revisions !tled above have arisen out of the
same case in the following facts and circumstances.
2. Complaint was filed by State of Haryana through District Drug In-
spector under Sec!on 18(a)(i) read with Sec!on 17A, 17B and 18B of The Drugs
and Cosme!cs Act, 1940 [hereina er referred as 'the Act'] and Rules made
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thereunder, against as many as ten accused as named below:
Manufacturer:
1) M/s Burnent Pharma 974 MIE, Bahadurgarh
2) Sh. Surender Kumar Seth son of Inder Sain
3) Sh. H.S. Rathi son of Sh. Sahu Ram
4) Sh. Jai Gopal son of Sh. Luxami Chand
5) Sh. Darshan Arora son of Sh. Des Raj
Dealer/Distributor:
6) M/s Kavita Medico Agencies, Rohtak
7) Sh. Ved Parkash son of Sh. Gian Dev
Retailer:
8) M/s Super Medicos, Charkhi Dadri
9) Sh. Bhupinder Singh son of Sh. Dalip Singh
10) A@ar Singh Phogat son of Sh. Bhola Ram Phogat
3.1 As per complaint, on 24.07.2003, Drug Inspector, Bhiwani visited
the premises of M/s Super Medicos i.e. accused No.8 along with Medical Officer,
General Hospital, Charkhi Dadri, where accused Nos.9 and 10 i.e. proprietor and
pharmacist of the said retailer were present. Vials of Diclofenac Sodium Injec-
!on 12 x 30m bearing on its label B>No.DF-04, Date of Manufacture 8/2002, Ex-
piry Date 07/2004, manufactured by M/s Burnet Pharma 9074 MIE Bahadurgarh
124507 were found, along with other allopathic drugs stocked for sale. Samples
of the aforesaid drugs were taken as per prescribed rules.
3.2 On analysis through the Government Analyst, Haryana of one of
the drug sample, the same was found to be not of standard quan!ty, as it con-
tained small white par!cles as suspended ma@er; and assay of Diclofenac
Sodium was less that IP (Indian Pharmacopoeia). As per standards in IP limits,
drug was required to be free from par!culate ma@er, hence, the injec!on was
not fit for consump!on for human beings and was injurious to health. The drug
Diclofenac Sodium (DS in short) claimed per ML on the label as 25mg, whereas
the Government analyst found it to be 2.6mg/ml and thus, drug falls within the
defini!on of being spurious, the manufacture and sale of which is prohibited un-
der Sec!on 18(a)(i) of the Act.
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3.3 No!ce under Sec!on 18-A of the Act was issued to accused Nos.8
and 9 on 05.11.2003 by the Drug Inspector, Bhiwani requiring them to disclose
the name, address and other par!cular of the person, from whom they had ac-
quired the drug. The said accused disclosed the name and address of M/s Kavita
Medico Agencies Rohtak i.e. accused No.6, from whom they had acquired the
drug. Purchase bill number 4218 dated 22.07.2003 was also produced by them.
3.4 At this, the Drug Inspector, Bhiwani issued no!ce to accused Nos.6
and 7 i.e. M/s Kavita Medicos and its proprietor Ved Parkash under Sec!on 18-A
of the Act requiring them to disclose the name and par!culars of the persons,
from whom they had acquired the drugs. As per the reply received from them,
the name of the manufacturer was M/s Burnet Pharma i.e. accused No.1, from
whom they had acquired the drug. As per the label found on the drug while
sampling, the manufacture of the drug was accused No.1. Accused Nos.6 and 7
also enclosed copy of the purchase bill No.1395 dated 28.11.2002 issued by ac-
cused No.1.
3.5 Upon the aforesaid informa!on being supplied, Drug Inspector,
Bhiwani issued no!ce on 12.01.2004 under Sec!on 18-B to accused No.1 i.e.
manufacturing firm through its partner- accused No.2 along with copy of the
test report of the drug in ques!on and a sealed por!on of the sample. Accused
No.2 Surender Kumar Seth, disclosed that accused No.4 Jai Gopal was the man-
ufacturing chemist and person responsible to manufacturing the drug in ques-
!on; whereas accused No.5 Darshan Arora owes the responsibility of tes!ng the
drugs and releasing the same for sale as per the undertaking submi@ed to the li-
censing authority.
3.6 It was alleged in the complaint that accused Nos.2 and 3 are in the
control of all opera!ons of manufacturing firm i.e. M/s. Burnet Pharma, Ba-
hadurgarh including those of manufacture and sale of drugs being the partners
of the said firm and that they were present during inspec!on showing their di-
rect control over the manufacturer of the drugs and as such, they are responsi-
ble persons for the manufacture and sale of the spurious, adulterated and non-
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standard quality of drug in context.
3.7 On the request of accused No.4 Jai Gopal, second sample of the
drug was also sent to Central Drugs Laboratory, Calcu@a but the result was the
same. AHer taking requisite permission from the competent authority, prosecu-
!on was then launched against all the accused, as have been named above so as
to prosecute them in this complaint.
4. On finding prima facie case, the accused were charge-sheeted un-
der Sec!on 18(a)(i) read with Sec!on 17-B, 17-A and 18-B of the Drugs and Cos-
me!cs Act, 1940. Accused Nos.3 to 5 were declared proclaimed offenders. The
other accused, who faced trial pleaded not guilty and claimed trial. However,
aHer holding the trial, the Court of learned Chief Judicial Magistrate, Bhiwani
held all of them to be guilty of Sec!on 28 and 27(b)(i) of the Act vide judgment
dated 12.03.2011. Vide a separate order dated 15.03.2011, the accused were
sentenced as under:
Under Sec!on 28 of RI for one year and fine of ₹1,000/- with default sentence
the Act of 03 months
Under Sec!on RI for one year and fine of ₹5,000/- with default sentence
27 (b)(i) of the Act of 03 months
Both the substan!ve sentences were directed to run concurrently.
5. Against the aforesaid convic!on and sentence. three separate ap-
peals were filed. Accused No.2 Surender Kumar Seth as one of the partners of
the manufacturing firm filed one appeal. Second appeal was filed by distributor
firm i.e. accused No.6 and its proprietor Ved Parkash; whereas third appeal was
filed by accused Nos.9 and 10 i.e. proprietor and pharmacist of the retailer firm
M/s Super Medicos. However. all these three appeals were dismissed by ld. Ad-
di!onal Sessions Judge, Bhiwani vide common judgment dated 06.06.2014.
6. Against the aforesaid dismissal of the appeals, these three revi-
sions have been filed. Criminal Revision No.1830 of 2014 has been filed by the
distributor firm i.e. M/s Kavita Medico Agencies and its proprietor Ved Parkash
i.e. accused Nos.6 and 7. Criminal revision No.1861 of 2014 has been filed by ac-
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cused No.9 - Bhupinder Singh i.e. proprietor of retailer firm M/s Super Medicos;
whereas, criminal revision No.1860 of 2014 has been filed by accused No.10 At-
tar Singh i.e. pharmacist of the retailer firm i.e. M/s Super Medicos.
7. Arguments in all the three revisions have been heard together, as
they have arisen out of same impugned judgment.
8.1 It is contended by learned counsel represen!ng the distributor
firm M/s Kavita Medicos and its proprietor that as per the allega!ons, the drug
in ques!on was purchased from the said firm by retailers i.e. accused No.8 & 9
and that on the no!ce received by these pe!!oners i.e. distributors, they had
disclosed to the Drug Inspector the name of the manufacturer i.e. accused No.1
M/s Burnet Pharma under Sec!on 18-B of the Act. That fact is duly admi@ed in
para Nos.6 and 7 of the complaint itself and as such, Courts below commi@ed a
grave error in convic!ng the pe!!oners under Sec!on 28 of the Act. It is further
contended that pe!!oners had disclosed the full par!culars of the manufac-
turer and so, the pe!!oners were protected under Sec!on 19(3) of the Drugs
and Cosme!cs Act and as such, their convic!on under Sec!on 27(b)(i) has been
wrongly recorded. With these submissions, prayer is made for seNng aside the
convic!on and sentence as imposed by the trial Court and upheld by the first
Appellate Court.
8.2 On behalf of pe!!oners Bhupinder and A@ar Singh, similar con-
ten!ons have been raised by learned counsel represen!ng them to the effect
that on being no!fied, they had disclosed to the Drug Inspector, the name of
the distributor firm, from whom they had acquired the drug i.e. M/s Kavita
Medicos and as such, they were not liable to be prosecuted under Sec!on 28 of
the Act. They also claimed protec!on under Sec!on 19(3) of the Act and so,
contended that their convic!on under Sec!on 27(b)(i) of the Act has been
wrongly recorded. With these submissions, counsel represen!ng these pe!!on-
ers also prayed for their acqui@al by seNng aside the convic!on and sentence
recorded by the Courts below.
9. On the other hand, learned State counsel represen!ng the respon-
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dent has defended the judgments as passed by the Courts below and prayed for
dismissal of all the revisions.
10. This Court has considered submissions of both the sides and have
appraised the record carefully.
11. Apart from Sec!on 27(b)(i), convic!on of the pe!!oners has been
recorded under Sec!on 28 of the Act. Sec!on 28 is read as under:-
"28. Penalty for non-disclosure of the name of the manufacturer, etc.--Who-
ever contravenes the provisions of sec"on 18A or sec"on 24 shall be punishable
with imprisonment for a term which may extend to one year, or with fine, which
shall not be less than twenty thousand rupees or with both."
12. As is evident, Sec!on 28 of the Act is a@racted, when there is con-
traven!on of the provisions of either Sec!on 18-A or Sec!on 24 of the Act.
These provisions read as under:
"18A. Disclosure of the name of the manufacturer, etc.--Every person, not be-
ing the manufacturer of a drug or cosme"c or his agent for the distribu"on
thereof, shall, if so required, disclose to the Inspector the name, address and
other par"culars of the person from whom he acquired the drug or cosme"c.
24. Persons bound to disclose place where drugs or cosme!cs are manufac-
tured or kept. -- Every person for the "me being in charge of any premises
whereon any drug or cosme"c; is being manufactured or is kept for sale or dis-
tribu"on shall, on being required by an Inspector so to do, be legally bound to
disclose to the Inspector the place where the drug 1or cosme"c is being manu-
factured or is kept, as the case may be."
13. Concededly, Sec!on 24 of the Act is not applicable to the facts of
this case. As far as Sec!on 18-A is concerned, every person, not being the manu-
facturer of the drug or cosme!c or his agent for the distribu!on thereof, is re-
quired to disclose to the inspector the name, address and other par!culars of
the person from whom he acquired the drug or cosme!c.
14. In the present case, pe!!oners before this Court are either the re-
tailer firm and its representa!ve; or the distributor firm and its proprietor. It is
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the own case of the drug inspector as men!oned in the complaint that aHer re-
ceiving the report of the Government Analyst, no!ce was issued to M/s Super
Medicos i.e. the retailer firm to disclose the name, address and other par!culars
of the person from whom they had acquired the drug and upon this no!ce, ac-
cused Nos.8 and 9 disclosed the name and address of M/s Kavita Medicos Agen-
cies, Rohtak, from whom they had acquired the drug and even produced pur-
chase bill No.4218 dated 22.07.2003 in this regard. Thus, once the retailers had
provided all the necessary details as required under Sec!on 18-A of the Act to
the Drug Inspector, there was complete compliance of Sec!on 18-A of the Act
and as such, the convic!on of the pe!!oners i.e. proprietor and pharmacist of
the retailer firm under Sec!on 28 of the Act is absolutely illegal and not war-
ranted. Said convic!on is hereby set aside.
15. Similarly, aHer being disclosed about the name, address and other
par!culars of the distributor firm by the retailers, when the Drug Inspector no!-
fied to accused Nos.6 and 7 i.e. the distributor firm and its partner as to from
whom they had acquired the drugs, the Drug Inspector received the reply of
these accused N: 6 & 7, as per which they had purchased the drugs from M/s
Burnet Pharma, Bahadurgarh i.e. accused No.1. Even as per the label found on
the drug, while taking the sample, the manufacturer's name of the drug was
men!oned as accused No.1. Accused No.6 had also enclosed copy of the pur-
chase bill No.1395 dated 28.11.2002 issued by accused No.1 in this regard.
Thus, the distributor firm also made compliance of Sec!on 18-A of the Act by
disclosing all the par!culars of the manufacturing firm and once it is so, the con-
vic!on of these pe!!oners M/s Kavita Medicos and Ved Parkash under Sec!on
28 of the Act is held to be unsustainable and so, the same is set aside.
16. Convic!on of all the pe!!oners has also been recorded under Sec-
!on 27(b)(i) of the Drugs and Cosme!cs Act, 1940. This provision reads as un-
der:
"27. Penalty for manufacture, sale, etc., of drugs in contraven!on of this
Chapter--Whoever, himself or by any other person on his behalf, manufactures
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for sale or for distribu"on, or sells, or stocks or exhibits or offers for sale or dis-
tributes,--
(a) xxxxxxx
(b) any drug--
(i) deemed to be adulterated under sec"on 17A but not being a drug re-
ferred to in clause (a), or
(ii) without a valid licence as required under clause (c) of sec"on 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 "mes the value of the drugs confiscated,
whichever is more:
Provided that the Court may, for any adequate and special rea-
sons 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"
17. Offence under Sec!on 28(b)(i) is punishable, in case the accused
manufactures for sale or for distribu!on or sells or stock or exhibits or offers for
sell or distributes any drug, which is deemed to be adulterated under Sec!on
17-A but not being a drug referred to in clause (a); or without a valid licence as
required under clause (c) of Sec!on 18.
18. In the present case, it is not the allega!on of the complainant that
any of the pe!!oners i.e. retailer firm or the distributor firm were not having
the valid licence as required under Sec!on 18 (c) of the Act.
19. As far as the contraven!on of Sec!on 17-A is concerned, it reads
as under:
"17A. Adulterated drugs.-- For the purposes of this Chapter, a drug shall be
deemed to be adulterated,--
(a) if it consists in whole or in part, of any filthy, putrid or decomposed sub-
stance; or
(b) if it has been prepared, packed or stored under insanitary condi"ons
whereby it may have been contaminated with filth or whereby it may have
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been rendered injurious to health; or
(c) if its container is composed, in whole or in part, of any poisonous or deleteri-
ous substance which may render the contents injurious to health; or
(d) if it bears or contains, for purposes of colouring only, a colour other than
one which is prescribed; or
(e) if it contains any harmful or toxic substance which may render it injurious to
health; or
(f) if any substance has been mixed therewith so as to reduce its quality or
strength."
20. In the present case, as has been no!ced by both the Courts below,
the report of the Government Analyst as well as that of the Central Drug Labora-
tory, found the sample drug on analysis to be not of standard quality, as it con-
tained small white par!cles as suspended ma@er and assay of Diclofenac
Sodium per ml was less than the IP i.e. Indian Pharmacopoeia. The drug has
been found to be spurious as well as adulterated within the meaning of Sec!on
17-A and 17-B of the Act, the manufacturer for sale, and sale of which is prohib-
ited under Sec!on 18(a)(i) of the Act. However, convic!on of the pe!!oners has
not been recorded for manufacturing or selling spurious drugs as per Sec!on
17-B of the Act and rather, convic!on has been recorded only for contraven!on
of Sec!on 17-A of the Act. Reports of the Government Test Laboratory as well as
that of the Central Laboratory confirmed that drugs in ques!on, the sample of
which was drawn, was found to be adulterated. There can be no dispute to this
finding.
21. However, all the pe!!oners have claimed protec!on under Sec!on
19(3) of the Act. Sec!on 19 of the Drugs and Cosme!cs Act, 1940 read as under:
19. Pleas.--(1) Save as hereina er provided in this sec"on, it shall be no de-
fence in a prosecu"on under this Chapter to prove merely that the accused was
ignorant of the nature, substance or quality of the drug or cosme"c in respect
of which the offence has been commi=ed or of the circumstances of its manu-
facture or import, or that a purchaser, having bought only for the purpose of
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test or analysis, has not been prejudiced by the sale.
(2) For the purposes of sec"on 18 a drug shall not be deemed to be misbranded
or adulterated or spurious or to be below standard quality nor shall a cosme"c
be deemed to be misbranded or to be below standard quality only by reason of
the fact that--
(a) there has been added thereto some innocuous substance or ingredi-
ent because the same is required for the manufacture or prepara"on of
the drug or cosme"c as an ar"cle of commerce in a state fit for carriage
or consump"on, and not to increase the bulk, weight or measure of the
drug or cosme"c or to conceal its inferior quality or other defects; or
(b) in the process of manufacture, prepara"on or conveyance some ex-
traneous substance has unavoidably become intermixed with it: provided
that this clause shall not apply in rela"on to any sale or distribu"on of
the drug or cosme"c occurring a er the vendor or distributor became
aware of such intermixture.
(3) A person, not being the manufacturer of a drug or cosme!c or his agent
for the distribu!on thereof, shall not be liable for a contraven!on of sec!on
18, if he proves--
(a) that he acquired the drug or cosme!c from a duly licensed manu-
facturer, distributor or dealer thereof;
(b) that he did not know and could not, with reasonable diligence,
have ascertained that the drug or cosme!c in any way contravened the
provisions of that sec!on; and
(c) that the drug or cosme!c, while in his possession, was properly
stored and remained in the same state as when he acquired it."
22. As is evident on perusal of the aforesaid provision, the protec!on
under Sec!on 19(3) is not available either to the manufacturer or to his agent
for the distribu!on thereof. The said protec!on is available only to a person,
who is neither the manufacturer nor the agent for the distribu!on thereof of
the manufacturer.
23. As such, pe!!oner M/s Kavita Medicos and its proprietor Ved
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Parkash cannot claim any protec!on under Sec!on 19 (3) of the Act being the
distributor of the manufacturing firm. In para No.10 of the revision itself, it has
been specifically admi@ed by these pe!!oners that they were only agents to
distribute the drugs and not manufacturers, having effec!ve and genuine li-
censes to sell the drugs. Once it is found that these pe!!oners are the agents
for the distribu!on of the drug on behalf of the manufacturer, they cannot claim
any protec!on under Sec!on 19(3) of the Act.
24. As far as pe!!oners Bhupinder and A@ar Singh i.e. representa!ve
of the retailer firm M/s Super Medicos are concerned, they can claim protec!on
under Sec!on 19(3) of the Act, provided all the condi!ons men!oned therein
are fulfilled i.e.,
(i) Drug is acquired from a duly licenced manufacturer, distributor or
dealer thereof;
(ii) That they i.e. retailer did not know or could not with reasonable dili-
gence have ascertained that the drug in ques!on contravened the provi-
sions of the sec!on; and
(iii) The drug in ques!on while in their possession was properly stored
and remained in the same state as when they acquired it.
25. The use of the words 'if he proves -' men!oned in Sec!on 19(3)
makes it quite clear that burden of proof is upon such accused to prove that he
is en!tled for the protec!on of the said sec!on.
26. In the present case, no such evidence has been produced by the
accused retailers i.e. Bhupinder and A@ar Singh that they did not know or with
reasonable diligence could not have ascertained that drug in ques!on, the sam-
ple of which was drawn in any way contravened the provisions of the Act; and
that the drug in ques!on while in their possession was properly stored and re-
mained in same state when they had acquired it. Of course, they had produced
before the Drug Inspector the purchase bill to show that they had purchased the
drug in ques!on from the licensed agent or distributor of the manufacturing
firm but other two condi!ons to a@ract Sec!on 19(3) of the Act are not fulfilled.
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27. In view of the aforesaid circumstances, it is held that the convic-
!on of the pe!!oners under Sec!on 27(b)(i) of the Act has been rightly
recorded. There is no illegality or perversity in the finding. The said convic!on is
hereby maintained.
28. Thus, these revisions against convic!on are partly allowed by set-
!ng aside the convic!on recorded under Sec!on 28 of the Act, but maintaining
the convic!on under Sec!on 27(b)(i) of the Act.
29. As far as the impugned order of sentence is concerned, as per Sec-
!on 27(b)(i), as it was applicable at the relevant !me in July 2003, the minimum
sentence provided was one year imprisonment and fine of ₹5,000/-. Trial Court
has imposed the minimum sentence as provided in the Act and the Appellate
Court has affirmed it.
30. However, it is no!ced by this Court that the offence in ques!on
was commi@ed way back in July, 2003 i.e. more than 21½ years back. Pe!!oner
Ved Parkash has remained in actual custody for a period of 12 days as per the
custody cer!ficate. Pe!!oner A@ar Singh has remained in 16 days actual cus-
tody as per the custody cer!ficate. Pe!!oner Bhupinder has remained in cus-
tody since 06.06.2014 to 20.06.2014, as his sentence was suspended vide order
dated 20.06.2014 and thus, he remained in custody for a period of 15 days. The
sentence of all these pe!!oners was suspended by this Court in June, 2014 i.e.
more than 10 years back. The custody cer!ficates do not indicate that any of the
pe!!oners is involved in any other criminal case.
31. In the aforesaid facts and circumstances, par!cularly the fact that
all the pe!!oners had in fact acquired the drugs from the manufacturing firm
i.e. M/s Burnet Pharma, it will be in the fitness of things, if the benefit of proba-
!on under Sec!on 4 of the Proba!on of Offenders Act, 1958 is extended to
them.
32. The said benefit of proba!on can be granted even in a case, where
minimum sentence is provided as has been held by Hon'ble Supreme Court in
"Lakhvir Singh v. State of Punjab" AIR 2021 SC 555 and reiterated in "Tarak
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Nath Keshari v. The State of West Bengal" 2023 SCC Online SC 605.
33. As such, the order of sentence as passed by the trial Court and
affirmed by the Appellate Court, is hereby modified. Pe!!oners Bhupinder, A@ar
Singh and Ved Parkash are hereby directed to be released on proba!on under
Sec!on 4 of the Proba!on of Offenders Act on entering into their separate
bonds in the sum of ₹50,000/- each with two sure!es of like amount by each of
them, to ensure that they maintain peace and good behavior for the remaining
part of sentence, failing which they can be called upon to serve the remaining
sentence.
34. At the same !me, the pe!!oners are burdened with the cost of
the proceedings as per Sec!on 5 of the Proba!on of Offenders Act. Pe!!oners
Bhupinder & A@ar Singh are directed to pay ₹25,000/- each as cost of proceed-
ings; whereas pe!!oner Ved Parkash, the proprietor of distribu!on firm M/s
Kavita Medicos is burdened with cost of ₹50,000/- towards the prosecu!on
cost. All the three pe!!ons shall stands disposed of accordingly. Compliance of
this order be made within 30 days from the date of this order, failing which their
revision pe!!on(s) shall be deemed to have been dismissed. A copy of this or-
der be sent to the Court of learned Chief Judicial Magistrate, Bhiwani for strict
compliance. Ordered accordingly.
A photocopy of this order be placed on the file of connected cases.
(DEEPAK GUPTA)
JUDGE
25.03.2025
Nee"ka Tuteja
Whether speaking/reasoned? : Yes/No
Whether reportable? : Yes/No
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