THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL APPEAL No.1466 OF 2009 JUDGMENT : The present appeal, under Section 378 (3) and (1) of the Code of Criminal Procedure, 1973, is filed against the judgment dated 18.12.2008 passed in C.C.No.564 of 2002 by the learned II Additional Judicial Magistrate of First Class, Rajahmundry, whereby the respondent herein /accused was acquitted for the offences punishable under Sections 27 (d) and 28 A of Drugs and Cosmetics Act, 1940. 2. Case of the prosecution is that, PW1-Drug Inspector had inspected and lifted the sample of Brox Tablet manufactured by M/s.Oxford Laboratories, Nidamanuru on 13.06.2001 for analysis and sent the same to the Government analyst and on 13.09.2001, PW1 received report with covering letter, wherein, the Government Analyst declared the said drug (Brox Tablet) is not of standard quality and gave reasons that sample does not comply the test for disintegration as per I.P.96 under uncoated tablets and, thereafter, PW1 issued a notice under Section 18A to the Proprietor of M/s. Sai Pharma Traders to disclose the name and address of the person from whom he received the product and the 2 proprietor of the said shop informed that he purchased the said product from one M/s.Winphar Remedies and later PW1 issued notice to M/s. Winphar remedies on 26.09.2001 to disclose the source of supply under Section 18A of the Act and sent a copy of the analyst report as per the procedure, and PW1 addressed a letter to PW2/Drug Inspector, who served the notice under Section 18A and a copy of the analyst report etc., documents to the Winphar Remedies, Vijayawada and PW1 received reply stating that he had served the sample portion and the analysis report to the Winphar Remedies on 25.10.2001 along with acknowledgement from the Dealer and PW1 also received a reply notice dated 03.11.2001, wherein, it is mentioned that M/s.Winphar Remedies are not having any stock of the said batch and, thereafter, PW1 issued a notice to M/s. Winphar Remedies, Vijayawada asking them to disclose the source of said product and received reply from M/s. Winphar Remedies on 08.12.2001 along with Purchase Bill, wherein, the dealer has mentioned that he has purchased the product from M/s. Oxford Laboratories, Vijayawada and, subsequently, PW1 issued a notice to M/s.Oxford Laboratories, Vijayawada on 15.01.2002 to submit the purchase and sales constitution and drug license copy of the firm, however, PW1 T. Narayana Rao, did not receive any reply from M/s. Oxford 3 Laboratories and on 06.04.2002 from the Directorate, Drugs Control Administration, Hyderabad, collected the affidavit, drugs license copy and approved list of drugs etc., and after completion of the investigation, PW1 filed charge sheet against the accused under Sections 27 (d) and 28 A of the Act. 3. The learned Magistrate took cognizance of the offences against the accused for the offences under Sections 27 (d) and 28A of the Act. After appearance of the accused A1 and A2 before the court, copies of the documents were furnished to them under Section 207 of Cr.P.C and were examined under Section 251 Cr.P.C., explaining to them in Telugu the contents of complaint and accusation made against them. The accused A1 and A2 denied the accusation made against them and the particulars of the offences punishable under Section 27 (d) and 28 A of the Act, were read over and explained to the accused A1 and A2 in Telugu and the accused pleaded not guilty and claimed to be tried. 4. To substantiate the case of the prosecution, PWs.1 to 3 were examined and Exs.P1 to P24 and MO.1 was got marked. On behalf of the accused, Ex.D1 and D2 are marked. 5. After closing the evidence of prosecution, the accused were examined under Section 313 Cr.P.C., to explain the incriminating 4 evidence against them in the evidence of prosecution witnesses. The accused denied the incriminating evidence of prosecution witnesses and have further pleaded that they have no further evidence, but, filed written statement under Section 243 (1) of Cr.P.C. 6. The learned Magistrate, upon appreciation of the evidence on record, found the respondent/A.1 & A2 not guilty of the charges levelled against them and accordingly acquitted them of the said charges. Challenging the same, State preferred the present Criminal Appeal. 7. Learned Additional Public Prosecutor appearing on behalf of the State submits that the Drug Inspector served notice under Section 18A on M/s.Winphar Remedies, Vijayawada. PW1 received reply from PW2 stating that he served sample along with acknowledgment from the dealer and PW1 also received reply notice stating that they are not having any stock of the said batch. Thereafter, PW1 has issued notice to M/s.Winphar Remedies, Vijayawada to disclose the source of said product. 8. Learned Additional Public Prosecutor further submitted that in response to the notice issued by the Drug Inspector, M/s.Winphar Remedes, categorically stated that they purchased 5 product from M/s. Oxford laboratories, Vijayawada. Basing on the analysis report and the statement of the M/s.Winphar Remedies, Vijayawada, it shows that the product was not a standard quality. He further submitted that learned Magistrate erred in acquitting the accused on flimsy grounds. 9. Though notice has been served, none appeared on behalf of the accused/respondents 10. Now, the point for determination is whether the prosecution has proved the case against the accused manufacturing tablets which are not of standard quality and failed to disclose the information regarding documents maintained by them? 11. A perusal of the material on record goes to show that there is absolutely no material to connect the accused with the crime. It is mentioned in the complaint that a notice was issued to A1 on 15.01.2002 to submit purchase and sale constitution and to produce drug license copy of the firm, however, no reply was received till date and PW1 had obtained information from Directorate, Drugs Control Administration, Hyderabad. 12. The contention of PW1 is that he has served notice by a registered post on M/s. Oxford laboratories, Vijayawada but surprisingly, PW1 has not filed any details as to on which data he 6 sent the letter to M/s. Oxford laboratories, Vijayawada. To that extent, even the charge sheet does not disclose any of the contention that has been raised by PW1. Apart from the same, PW1 categorically admit that the address mentioned in Ex.A18 and that the address mentioned in Ex.P22 and P23 of the affidavit are not one and the same. He further admitted that he did not make any effort to serve notice on the residential address. It is pertinent to mention here that Ex.P23 affidavit contained full address particulars of all the partners of the firm. Despite the fact that Ex.P23 contains all the necessary particulars however, PW1 did not choose to send any notice to the partners of laboratory in their individual claims. 13. The evidence of PW1 goes to show that though the address particulars of manufacturer of M.O.1 is very much available on MO.1, he has addressed a letter to PW3 to furnish the source of supply and, thereafter, again he sought such information from M/s.Winphar Remedies, Vijayawada, for the reasons best known to him. The evidence of PW3 further goes to show that he has not filed any documentary proof to show that he sent the Government Analyst report and other materials to the accused even though their residential address particulars are available with him, which were obtained by him from the Directorate, Drugs Control 7 Administration, Hyderabad. In such circumstance, the evidence of PW1 is not helpful to the case and any amount of suspicion can be entertained in respect of the conduct of PW1 in inspecting investigation and dealing with the case. 14. PW2/Drug Inspector, who was worked in District Licensing Authority in Drugs Control Administration, Visakhapatnam, has stated that he received letter from PW1 under Ex.P13 along with Section 18A notice, Analyst Report in Form No.13 and also sealed portion of the sample and he personally served the same on the accused and obtained acknowledgment under Ex.P15 on 25.10.2001 and later he forwarded Ex.P15 to PW1 along with his covering letter under Ex.P14. In the cross examination, PW2 has stated that the accused here is A. Srinivasa Rao of M/s.Oxford Laboratories and he does not know the capacity of the said Srinivasa Rao. He has admitted that as per Ex.P13, he has served a notice on M/s.Winphar Remedies, Governorpet, Vijayawada and he served the said notice on M/s.Winphar Remedies, Vijayawada, however, he does not know the role of M/s.Winphar Remedies in respect of the Drug in dispute. In the further cross examination, PW2 has stated that Section 18A notice was served on M/s.Winphar Remedies, Vijayawada and Winphar Remedies was asked to inform the source of supply and on seeing the record, he 8 came to know that M/s.Oxford Laboratories is being prosecuted in the present case. He stated that the signature on Ex.P15 is that of the accused and further stated that M/s.Winphar Remedies have sent reply to the Drug Inspector by marking copy to him under Ex.D1, dated 03.11.2001. He has specifically denied the suggestion that he has served the notice on the wholesale merchant of M/s.Winphar Remedies, but not on the accused. 15. Admittedly, PW1 is the competent officer to investigate the matter. The name of the manufacturer is very much available on MO.1 and there is no necessity to seek information of the accused through other person. However, the sample that was drawn itself contains the address particulars of the manufacturer. Despite that, PW1 has sought information from PW3 and M/s. Winphar Remedies for the reasons best known to him. Though the address and particulars of the accused persons are available with PW1, it is not known as to why PW1 has not taken any steps to serve the copy of the Government Analyst Report on the accused either personally or through PW2 or by Registered Post. Except making any averments in the complaint, there is no material to show that either he sent for Government Analyst report through accused and at the same time, no postal receipt has been filed or acknowledgment card or any document to show that he has taken 9 steps to serve notice on the accused. In the absence of issuance of notice through the accused, the learned Magistrate has rightly come to a conclusion and dismissed the complaint. This Court has perused the entire record and come to a conclusion that the order of the learned Magistrate requires no interference. 16. Accordingly, the Criminal Appeal is dismissed confirming the judgment dated 18.12.2008 passed in C.C.No.564 of 2002 by the learned II Additional Judicial Magistrate of First Class, Rajahmundry. As a sequel, pending miscellaneous petitions, if any, shall stand closed. __________________________________ JUSTICE K. SREENIVASA REDDY 20.06.2025 PKR 10 THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY 261 CRIMINAL APPEAL No.1466 OF 2009 20.06.2025 PKR