NON-REPORTABLE

IN THE 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

J U D G M E N T

Dalveer Bhandari, J.

1. These  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.  

- 2 - 2. We  have  heard  the  learned  counsel  for  the  

parties.  

3. We propose to dispose of both these appeals by  

this Judgment.

4. Brief 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.).  

He  also  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)  

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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.  

5. First  accused  is  M/s.  Searle  India  Limited,  

Bombay  which  is  the  manufacturing  firm  of  the  Drug  

Heloperidol Tablet;   

Second  accused  is  Dr.  K.K.  Maheshwari,  

Production  Manager  of  M/s.  Searle  India  Limited,  

Bombay;  

Third  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 Company;

Fourth  accused  is  the  partner  by  name  

Padamchand Chordia representing the accused firm M/s.  

Sri Mahaveer Pharma Agencies;

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Fifth  accused  is  the  firm  by  name  M/s.  Sri  

Mahaveer Pharma Distributors who purchased, sold and  

stocked Haloperidol Tablet;

Sixth 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.

6. The  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 the Essential Commodities Act, 1955 read  

with Section 3(2)(c) of the said Act and sentenced them  

as follows:  

7. Accused No.1 – M/s. Searle India Limited was  

directed to pay a fine Rs.10,000/-. Accused No.2 – K.K.  

Maheshwari  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

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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.  

8. 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.

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10. To  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.  

tablet 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.  

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11. The  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.  

The recovered articles were sent to the Court with the  

requisition under Ex.P-7 to keep them in safe custody.  

He also 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.  

Apart 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

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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  

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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.  

This appears to be the substratum of the argument of  

the learned counsel appearing for all the accused.

13. In 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.

14. Para 20 of the DPCO, 1979 reads as under:-

“Retail price to be displayed on label of containers.  Every  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.”

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15. 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 any basis.

16. The  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 preceding paragraphs.   

17. In  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.  

18. In 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.

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19. We, 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.  

20. With 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)

New Delhi;   May 11, 2010.