R.P.G. Life Sciences Ltd. & Ors. Vs. State of Tamil Nadu  INSC 390
(11 May 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1033
OF 2002 M/S. RPG LIFE SCIENCES LTD. & ANR. Appellants VERSUS STATE OF TAMIL
NADU Respondent WITH
CRIMINAL APPEAL NO. 1034 OF 2002 M/S. SRI MAHAVEER PHARMA AGENCIES & ORS.
Appellants VERSUS STATE OF TAMIL NADU Respondent
appeals have been preferred by the appellants against the judgment and order
dated 7.6.2002 passed by the High Court of Judicature at Madras in Criminal
Appeal No.149 of 1996 and Criminal R.C. No. 155 of 1996, whereby the High Court
has confirmed the order of conviction and sentence of the appellants passed by
the Trial Court.
have heard the learned counsel for the parties.
propose to dispose of both these appeals by this Judgment.
facts which are necessary to dispose of these appeals are recapitulated as
under:- On 29.11.1985, the then Drugs Inspector, Park Town, II Range, Office of
the Assistant State Drugs Controller Zone-1, inspected the premises of M/s. Sri
Mahaveer Pharma Agencies (appellant no. 1 in Crl. A. No. 1034 of 2002) and
found 68 bottles containing 100 Tablets each of Haloperidol, 5 Mg. Tablets,
B.P. Lot 060, which was manufactured in March 1985 by M/s. Searle India Limited
(now M/s. RPG Life Sciences Ltd.).
found that the bottles do not contain the labels indicating the maximum retail
price of the Drug as contemplated under the Drugs (Prices Control) Order, 1979
(hereinafter referred to as 'DPCO 1979'). The said bottles were frozen on
29.11.1985 and at the same time, he also found that there were no purchase
details for the purchase of the said bottles. Acknowledging the same,
Padamchand Chordia, partner of the firm M/s. Sri Mahaveer Pharma Agencies,
submitted a letter (Ex.P1) - 3 - stating that the labels do not indicate the
maximum retail price and they agreed to furnish the purchase and sale details
of Haloperidol 5 Mg. Tablets. On 2.12.1985, the Drugs Inspector drew samples
from the bottles under Form No.17, marked as Ex.P.-3 and attested by P.W.3.
Based on the above, show cause notices were sent to the respective firms and on
the replies from the accused and the reports from the analyst, a complaint was
filed by the Drugs Inspector against seven accused persons.
accused is M/s. Searle India Limited, Bombay which is the manufacturing firm of
the Drug Heloperidol Tablet;
accused is Dr. K.K. Maheshwari, Production Manager of M/s. Searle India
accused is the firm by name M/s. Sri Mahaveer Pharma Agencies, who had
purchased, sold and stocked the drug Haloperidol Tablets manufactured by A- 1
accused is the partner by name Padamchand Chordia representing the accused firm
M/s. Sri Mahaveer Pharma Agencies;
- 4 -
Fifth accused is the firm by name M/s. Sri Mahaveer Pharma Distributors who
purchased, sold and stocked Haloperidol Tablet;
accused is the partner by name Padamchand Chordia of M/s. Mahaveer Pharma
Distributors (A-5) who purchased, sold and stocked the drug Haloperidol; and
Seventh accused by name, Raghavan, is the Proprietor of the firm M/s. Sripathy
Distributors Madras, who purchased and sold Haloperidol Tablet.
above seven accused were charged for violation of para 20 of the DPCO 1979
punishable under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955
read with Section 3(2)(c) of the said Act. The Special Judge, Essential
Commodities Act, Madras tried the charges and found the accused appellants
guilty of the charges and convicted all of them under Section 7(1)(a)(ii) of
Commodities Act, 1955 read with Section 3(2)(c) of
the said Act and sentenced them as follows:
Accused No.1 - M/s. Searle India Limited was directed to pay a fine
Rs.10,000/-. Accused No.2 - K.K.
was sentenced to undergo rigorous imprisonment for three months. Accused No.3
was directed to pay fine of Rs.5,000/-. Accused No. 4 was - 5 - sentenced to
rigorous imprisonment for three months and to pay a fine of Rs.3,000/-. Accused
No.5 was directed to pay a fine of Rs.5,000/-. Accused No.6 was sentenced to
rigorous imprisonment for three months and to a fine of Rs.3,000/-. Accused
No.7 was sentenced to rigorous imprisonment for three months and to a fine of
Rs.5,000/-. In default of payment of fine, they were directed to undergo
further imprisonment for two months. Since accused Nos. 4 and 6 are the same,
he has to undergo the punishment in the same period.
Against the order of conviction and sentence dated 31.1.1996 passed by the
Special Judge, Essential Commodities Act, Madras, accused Nos. 1 & 2 preferred
appeal before the High Court while accused Nos.3 to 7 preferred revisions
against the said judgment. The High Court confirmed the conviction and sentence
of the appellants and dismissed their appeal and revisions.
9. Six of
the accused have preferred appeals, by special leave, before this Court. Mr.
Raghavan, who was the proprietor of M/s. Sripathy Distributor, has not filed
any appeal before this Court.
establish the guilt of the accused, the prosecution had examined 4 witnesses on
its side and mark Ex.P-1 to Ex.P-25. The evidence of the Drug Inspector, P.W.1
is that he visited the premises of A-3 on 29.11.1985 and found 68 bottles of
Haloperidol 5 Mg.
containing about 100 Tablets each, without the label which indicates the
maximum retail price. With regard to the same, a letter was given by A-4, the
Partner of A-3 Firm, marked as Ex.P-1, admitting the fact that maximum retail
price column has not been furnished on the label of the bottle and the details
regarding the purchase of the bottles will be furnished. Hence, P.W.1 had
frozen the articles and had given Ex.-2, giving out the details about the
consignment. In continuation of his inspection made on 29.11.1985, he again
inspected the premises of A-3 firm on 2.12.1985 at about 9.30 a.m. and after
observing all the formalities, seized the samples of Haloperidol Tablet under
Ex.P-3, attested by P.W.3, Ex.P-4 is the list detailing about the price of 4
bottles of Haloperidol obtained from A-3 firm. M.O.1 series (68 bottles of
Haloperidol) had been recovered under Mahazar Ex.P-5, attested by P.W.4.
Delivery Challan/Invoice for the goods delivered from A-1 firm to A-3 firm
containing the product namely Haloperidol was recovered under Ex.P.-6.
recovered articles were sent to the Court with the requisition under Ex.P-7 to
keep them in safe custody.
made arrangements to send the M.O.2 Series (2 bottles of Haloperidol Tablet)
for analysis through Form No.18, marked as Ex.P-8. Show cause notices were sent
to A-1 and A-3 firm under Ex.P-9 and Ex.P-10 respectively. A-4 on behalf of A-3
had sent a letter dated 3.12.1985 about the purchase details with regard to 30
bottles of Haloperidol Tablet, marked as Ex.P-11.
from the above, A-4 on behalf of A-3 had also sent a reply to the show cause
notice, marked as Ex.P- 12, wherein A-4 had stated that they expressed their
regrets and that by mistake they have not noticed the label of the drug, which
does not show the maximum retail price and requested P.W.1 to kindly condone
the mistake and oblige. Thereafter, P.W.1 having come to know that A-5 firm was
also involved in the purchase and sale of Haloperidol, issued a show cause notice
under Ex.P-13 dated 10.1.1986 and A-5 sent a reply of which Ex.P-15 is the
verbatim copy of Ex.P.12, admitting that they had not noticed the absence of
maximum retail price in the bottle and requested him to - 8 - condone the
mistake and oblige. He had also come to know by virtue of Ex.P-15 that 15
bottles had been sold to A-7 and on the basis of Ex.P-16, the copy of the bill,
show cause notice was issued to A-7, marked as Ex.P-17. Ex.P-18 is the reply
sent by A-7 and in addition to his notice, had also supplied the bills, on the
basis of which he had purchased Haloperidol from A- 3. After receiving the
replies from the respective accused and after obtaining the sanction, P.W.1 had
filed the complaint.
12. It is
an undisputed fact that the recoveries have been made at the respective firms
and hence it may not be necessary to dwell upon the issue. However, the
specific case of the accused is that Haloperidol is available in its generic
sense and when it is sealed, packed and distributed in the brand name, it is
named as Serenas Tablets. In other words, according to the accused, it is not
the case of the prosecution that the tablet was either misbranded or does not
conform with the quality prescribed, but the only infringement is that the
maximum retail price has not been printed on the bottle. They would further
claim that the Drug had been marketed and sold in the generic name Haloperidol,
exclusively for hospital supplies and the cost of it has been printed in the
price list. The same product - 9 - is marked as Sarenas by its brand name for
retailers in strips of 10 in Aluminium foil. Hence, in short, their claim is
that the bottle need not contain the maximum retail price, if the Tablets in
generic form, namely as Haloperidol had been supplied to hospitals and only in
the case of the Drug being sold in the trade name Serenas, the maximum retail
price should be mentioned.
appears to be the substratum of the argument of the learned counsel appearing
for all the accused.
order to substantiate the above, the learned counsel for the accused had drawn
our attention to the answers given by P.W.1 in cross examination, wherein
according to Pharmacopea, Haloperidol is the generic name and the Trade Name is
Serenas. Ex.P-21-A is the price list in which the price of Seranas 5 Mg. has
been marked. The price relates to 10 tables and the price of which is Rs.21.14.
20 of the DPCO, 1979 reads as under:- "Retail price to be displayed on
label of containers.
manufacturer or distributor of a formulation intended for sale shall display in
indelible print mark on the label of the container of the formulation or the
minimum pack thereof offered for retail sale, the maximum/retail price of that
formulation with the words "retail price not to exceed" preceding it,
and "local taxes extra" succeeding it."
According to para 20 of DPCO, 1979 either the manufacturer or the distributor
of a specific medicine has to print that the medicine is for sale on the bottle
and also the maximum retail price has to be mentioned. Hence in this case the
accused come under punishable offence as per para 20 of DPCO 1979. Hence as per
the arguments of the counsel for the accused that Haloperidol is not meant for
retail sale and therefore not covered by para 20 of DPCO 1979, does not have
accused appellants were convicted under para 20 of DPCO 1979 and were punished
by the Special Judge under the Essential Commodities Act, 1955
sentencing them to three months' imprisonment and fine, as indicated in the
the present case, the incident is of 31.5.1985 and in the peculiar facts of
this case it may not be desirable to send the appellants to jail after a lapse
of about 25 years.
the facts and circumstances of this case, we are of the considered view that
ends of justice would meet if while maintaining the conviction of the
appellants, instead of sending them to serve out three months of imprisonment,
the sentence of fine is substantially increased.
therefore, direct Appellant No.1 Company to pay a fine Rs.2 lakhs, instead of
Rs.10,000/-, as directed by the Trial Court and confirmed by the High court.
Other appellants i.e accused Nos.2 to 6 are directed to pay a fine Rs.25,000/-
each. We extend this order to one Mr. Raghavan (accused No.7) who has not filed
an appeal before this Court. The accused are directed to pay the said amount of
fine within a period of six weeks from today. In case the aforesaid amount of
fine is not paid within six weeks, this order would not be of any avail to the
accused and they will have to serve out the sentences as directed by the Trial
Court and confirmed by the High Court.
this modification of the Trial Court order as affirmed by the High Court, these
appeals are disposed of in the aforementioned terms.
......................J. (Dalveer Bhandari)
......................J. (Aftab Alam)
May 11, 2010.