THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.R.C.No.379 OF 2009 ORDER The accused Nos.1 and 2 in C.C.No.315 of 2003 on the file of the Court of I Additional Junior Civil Judge, Tenali were convicted for the offence under Section 18(c) of the Drugs and Cosmetics Act,1940 ( for short “the Act”) and Accused No.2 was sentenced to undergo Simple Imprisonment for One year and to pay a fine of Rs.5,000/- in default to undergo Simple Imprisonment for one month and Accused No.1 was sentenced to pay a fine of Rs.5,000/- and in default to suffer Simple Imprisonment for one month, which was confirmed in an appeal viz., Crl.A.No.287 of 2006 on the file of the Court of XI Additional District and Sessions Judge,(F.T.C.) Guntur at Tenali, are the revision petitioners herein. The case of the prosecution is that on 17-02-2003 PW.1-Drug Inspector inspected M/s.Sri Vasavi Poultry and Medicals owned by PWs.2 and 3 and there he found a drug Deworal Levamisole Hydrochloride Powder and samples were drawn and sent for an analysis. After the analysis, it was found to be a substandard one and in response to the letter PWs.1 and 2 have stated that the said drug was purchased from M/S. E.K.Medicals, Nellore and M/S.E.K.Medicals in turn has stated that it was purchased from the revision petitioners herein. Thereafter, a notice was given to the revision petitioners herein and as the revision petitioners were not having licence for manufacturing of the said drug, a prosecution has been launched against the revision petitioners herein. The revision petitioners herein pleaded that the above material is not a drug as defined under Section 3 (b) (ii) of the Act and further it was pleaded that it is only a “poultry feed” which is exempted under Schedule. “K” (subject No.12) of the Act and consequently no licence is required. Both the courts have not accepted this contention and accordingly convicted the revision petitioners. Now the point that arises for consideration is:- Whether the conviction and sentence imposed against the revision petitioners for the offence under Section 18(c) read with 27 (b)(ii) of the Act is legal and sustainable? POINT:- The learned counsel for the revision petitioners contends that the sample that was taken for analysis was essentially a “feed” and it was not a drug as defined under Section 3(b)(ii) of the Act and no notification was issued by the Central Government to that effect and from the counter filed by the prosecution in the application to discharge, it was declared as a poultry feed and consequently it attracts the exemption under Schedule.’K” as no licence is required and, therefore, the conviction and sentence is to be set aside. The lower courts have taken into consideration that from the description given in the label of the said sample, it was shown as a medicine and there is no dispute about the fact even if the said medicine is used for treatment of the animals, it attracts the definition of a drug under Section 3(b)(ii). The question is as to whether the said drug attracts the definition under Section 3(b)(i) or Section 3(b) (ii) of the Act. In case, it falls within the definition under Section 3(b)(i) of the Act, there is no need for a notification by the Central Government and in case it falls within the definition of Section 3(b)(ii) of the Act, the specification of the drug and notification by the Central Government is necessary. Therefore, the whole issue will be depending upon the nature of the drug or the material that has been used and for the purpose for which it is being used. Evidently, the material on record does not show for what purpose it is being used. Suppose it is being used for the purpose of eliminating the vermin or insects of the animals and to protect them from the disease then it comes within the definition of Section 3(b)(ii) of the Act. In this connection, the evidence of the complainant-PW.1 is silent about the nature of the use of the drug. The accused have filed an application for discharge and a counter is filed by the prosecution pleading that the label of the drug contained poultry feed supplement not for human purpose and meant for animal use only. In fact, in the counter it was stated by the prosecution that the contention of the revision petitioners is that above sample is useful for eradication of all round worms of Gastro intestinal tract and on layers Cattle, Sheep, Goats, Pigs and Poultry and thereby treating helminthiasis. It was further pleaded that the above claim is not disputed by the prosecution for the simple reason that it has got the properties of Antihelminitic. Therefore, from the material admission made by the prosecution and also further counter which goes to show that it has also classified as vermicide, which kills the worms. Further more, in the counter, the substance Levamisole Hydrochloride is intended to be used for the destruction of vermin(worms) which causes diseases in animals as claimed by the accused and that it is a drug as per Section 3(b) (ii) of the Act. Assuming to be that it attracts the definition of a drug under Section 3(b)(ii) of the Act, then essentially the definition clearly lays down that it should be notified as a drug by the Central Government. In the absence of which no prosecution can be laid down. Further more, when the sample itself is disclosed that it is a substitute for poultry feed, then naturally the purpose of it is also otherwise. Taking any view of the matter, there is any amount of doubt about the tenability of the prosecution case and the accused are entitled for a reasonable benefit of doubt and accordingly the conviction and sentences imposed against the revision petitioners are set aside and the fine amount shall be returned to the revision petitioners. Accordingly, the Criminal Revision Case is allowed. _______________________ N.R.L. NĀGESWARA RĀO,J 14-12-2011 TSNR