THE DRUGS AND COSMETICS ACT, 1940



CHAPTER I-INTRODUCTORY

1. Short title, extent and commencement. — (1) This Act may be called the Drugs and Cosmetics Act, 1940.

(2) It extends to the whole of India.

(3) It shall come into force at once; but Chapter III shall take effect only from such date as the Central government may, by notification in the Official Gazette, appoint in this behalf, and Chapter IV shall take effect in a particular State only from such date as the State Government may, by like notification, appoint in this behalf:

Provided that in relation to the State of Jammu and Kashmir, Chapter II shall take effect only from such date after the commencement of the Drugs and Cosmetics (Amendment) Act, 1972 (19 of 1972), as the Central Government may, by notification in the Official Gazette, appoint in this behalf.

2. Application of Other laws not barred. — The provisions of this Act shall be in addition to, and not in derogation of, the Dangerous Drugs Act, 1930 (2 of 1930) and any other law for the time being in force.

3. Definitions. — In this Act, unless there is anything repugnant in the subject or context, —

(a) “ [1] [Ayurvedic Siddha or Unani] drugs” includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of [2] [disease or disorder in human beings or animals, and manufactured] exclusively in accordance with the formulae described in, the authoritative books of [3] [Ayurvedic, Siddha and Unani Tibb systems of medicine, specified in the First Schedule;]

(aa) “the Board” means —

(i) in relation to [4] [Ayurvedic, Siddha or Unani drug] the [5] [Ayurvedic, Siddha and Unani drugs, Technical Advisory Board] constituted under section 33C; and

(ii) in relation to any other drug or cosmetic, the Drugs Technical Advisory Board constituted under Section 5;

(aaa) “cosmetic” means any article intended to be rubbed, powered, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic, [6] [***]

(b) “drug” includes —

[7] [(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for on in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;]

(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;]

[8] [(iii) all substances intended for use as components of a drug including empty gelatin capsules; and

(iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;

(c) “Government Analyst” means —

(i) in relation to [9] [Ayurvedic, Siddha or Unani drug , a Government Analyst appointed by the Central Government or a State Government under Section 33F; and

(ii) in relation to any other drug or cosmetic, a Government Analyst appointed by the Central Government or a State Government under Section 20. [10] [*******]

(e) “Inspector” means —

(i) in relation to [11] [Ayurvedic, Sidha or Unani drug] an Inspector appointed by the Central Government or a State Government under Section 33G; and

(ii) in relation to any other drug or cosmetic, an Inspector appointed by the Central Government or a State Government under Section 21;

(f) “manufacture” in relation to and drug for cosmetic includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug or cosmetic with a view to its [12] [sale or distribution] but does not include the compounding or dispensing [13] [of any drug, or the packing of any drug or cosmetic,] in the ordinary course of retail business; and “to manufacture” shall be construed accordingly;

(g) “to import”, with its grammatical variations and cognate expressions means to bring into India;

[14] [(h) “patent or proprietory medicine” means, —

(i) in relation to Ayurvedic, Sidha or Unani Tibb systems of medicine all formulations containing only such ingredients mentioned in the formulae described in the authoritative books of Ayurveda, Siddha or Unani Tibb systems of medicine specified in the First Schedule, but does not include a medicine which is administered by parenterate route and also a formulation included in the authoritative books as specified in clause (a)

(ii) in relation to any other systems of medicine, a drug which is a remedy or prescription presented in a form ready for internal or external administration of human beings or animals and which is not included in the edition of the Indian Pharmacopoeia for the time being or any other Pharmacopoeia authorised in this behalf by the Central Government after consultation with the Drugs Technical Advisory Board constituted under Section 5;]

(i) “prescribed” means prescribed by rules made under this Act.

3A. Construction of references to any law not in force or any functionary not in existence in the State of Jammu and Kashmir. — Any reference in this Act to any law which is not in force, or any function not in existence, in the State of Jammu and Kashmir, shall, in relation to that State, be construed as a reference to the corresponding law in force, or to the corresponding functionary in existence, in that State.

4. Presumption as to poisonous substances. — Any substance specified as poisonous by rule made under Chapter III or Chapter IV or Chapter IVA shall be deemed to be a poisonous substance for the purposes of Chapter III or Chapter IV for Chapter IVA as the case may be.

CHAPTER II-THE DRUGS TECHNICAL ADVISORY BOARD, THE CENTRAL DRUGS LABORATORY AND THE DRUGS CONSULTATIVE COMMITTEE

5. The Drugs Technical Advisory Board. – (1) The Central Government shall, as soon as may be, constitute a Board (to be called the Drugs Technical Advisory Board) to advise the Central Government and the State Governments on technical matters arising out of the administration of this Act and to carry out the other functions assigned to it by this Act.

2. The Board shall consist of the following members, namely: –

(i) the Director general of Health Services ex officio, who shall be Chairman;

(ii) the Drugs Controller, India, ex officio;

(iii) The Director of the Central Drugs Laboratory, Calcutta, ex officio;

(iv) The Director of the Central Research Institute, Kasauli, ex officio;

(v) the Director of the Indian Veterinary Research Institute, Izatnagar, ex officio;

(vi) the President of the Medical Council of India, ex officio;

(vii) the President of the Pharmacy Council of India, ex officio;

(viii) the Director of the Central Drug Research Institute, Lucknow, ex officio;

(ix) two persons to be nominated by the Central Government from among persons who are in charge of drugs control in the States;

(x) one person, to be elected by the Executive Committee of the Pharmacy Council of India, from among teacher in pharmacy or pharmaceutical chemistry or pharmacognosy on the staff of an Indian University or a college affiliated thereto;

(xi) one person, to be elected by the Executive Committee of the Medical Council of India, from among teachers in medicine or therapeutics on the staff of an Indian university or a college affiliated thereto;

(xii) on person to be nominated by the Central Government from the pharmaceutical industry;

(xii) one pharmacologist to be elected by the Governing Body of the Indian Council of Medical Research;

(xiv) one person to be elected by the Central Council of the Indian Medical Association;

(xv) one person to be elected by the Council of the Indian Pharmaceutical Association;

(xvi) two persons holding the appointment of Government Analyst; under this Act, to be nominated by the Central Government.

(3) The nominated and elected members of the Board shall hold office for three years, but shall be eligible for re-nomination and re-election :

Provided that the person nominated or elected, as the case may be under clause (ix) or clause (x) or clause (xi) or clause (xvi) of sub-section (2) shall hold office for so long as he holds the appointment of the office by virtue of which he was nominated or elected to the Board.

(4) The Board may, subject to the previous approval of the Central Government, make bye-laws fixing a quorum and regulating its own procedure and the conduct of all business to be transacted by it.

(5) The Board may constitute sub-committees and may appoint to such sub-committees for such periods, not exceeding three years, as it may decide, or temporarily for the consideration of particular matters, person who are not members of the Board.

(6) The functions of the Board may be exercised notwithstanding any vacancy therein.

(7) The Central Government shall appoint a person to be Secretary of the Board and shall provide the Board with such clerical and other staff as the Central Government considers necessary.

6. The Central Drugs Laboratory. – (1) The Central Government shall, as soon as may be, established a Central Drugs Laboratory under the control of a Director to be appointed by the Central Government, to carry out the functions entrusted to it by this Act or any rules made under this Chapter;

Provided that, if the Central Government so prescribes, the functions of the Central Drugs Laboratory in respect of any drug or class of drugs or cosmetic or class of cosmetics shall be carried out at the Central Research Institute Kasauli, or at any other prescribed Laboratory and the functions of the Director of the Central Drugs Laboratory in respect of such drug or class of drugs or such cosmetics class of cosmetics shall be exercised by the Director of that Institute or of that other Laboratory, as the case may be.

(2) the Central Government may, after consultation with the board, make rules prescribing –

(a) the functions of the Central Drugs laboratory;

[15] [ * * * * * * * ]

(d) the procedure for the submission to the said Laboratory under Chapter IV or Chapter IVA of samples of drugs or cosmetics for analysis or test, the forms of the Laboratory$s reports thereon and the fees payable in respect of such reports;

(e) such other matters as may be necessary or expedient to enable the said Laboratory to carry out its functions;

(f) the matters necessary to be prescribed for the purposes of the proviso to sub-section (1).

STATE AMENDMENTS

Uttar Pradesh

In its application to the State of Uttar Pradesh, in Section 6 (1), after the existing proviso, insert the following proviso:

“Provided further that the State Government may, with the prior approval of the Central Government, direct that the functions of the Central Drugs Laboratory and of the Director may be carried out in Uttar Pradesh by such Authority and such officer respectively as may be specified by the State Government by notification in the official Gazette, and any reference in this Act to the Central Drugs Laboratory or the Director shall then be construed as a reference to such Authority or officer, as the case may be.”

[U.P. Act 47 of 1975]

West Bengal

In its application to the State of West Bengal, in Section 6 (1), after the existing proviso, insert the following proviso:

“Provided further that the State Government may, with the prior approval of the Central Government, direct that the functions of the Central Drugs Laboratory and of the Director may be carried out in West Bengal by such Authority and such officer respectively as may be specified by the State Government by notification in the official Gazette and any reference to this Act to the Central Drugs Laboratory or the Director shall then be construed to mean such Authority or officer, as the case may be.”

[W.B. Act 42 of 1973]

7. The Drugs Consultative Committee. – (1) The Central Government may constitute an advisory committee to be called “the Drugs Consultative Committee” to advise the Central Government, the State Governments and the Drugs Technical Advisory Board on any matter tending to secure uniformity throughout India in the admistration of this Act.

(2) The Drugs Consultative Committee shall consist of two representatives of the Central Government to be nominated by that Government and one representative of each State Government to be nominated by the State Government concerned.

(3) The Drugs Consultative Committee shall meet when required to do so by the Central Government and shall have power to regulate its own procedure.

7A. Sections 5 and 7 not to apply to [16] [Ayurvedic, Siddha or Union] drugs. – Nothing contained in Section 5 and 7 shall apply to [17] [Ayurvedic, Siddha or Unani] drugs.

 

CHAPTER IV-MANUFACTURE, SALE AND DISTRIBUTION OF [32] [DRUGS AND COSMETICS]


16. Standards of quality. — (1) For the purposes of this Chapter, the expression “standard quality” means —(a) in relation to a drug, that the drug compiles with the standard set out in the Second Schedule, and

(b) in relation to a cosmetic, that the cosmetic complies with such standard as may be prescribed.

(2) The Central Government after consultation with the Board and after giving by notification in the Official Gazette not less than three months$ notice of its intention so to do, may by a like notification

add to or otherwise amend the Second Schedule for the purposes of this Chapter, and thereupon the Second Schedule shall be deemed to be amended accordingly.

[33] [17. Misbranded drugs. — For the purposes of this Chapter, a drug shall be deemed to be misbranded, —

(a) if is so coloured, coated, powdered or polished that damage is concealed or if it is made to appear of better or greater therapeutic value than it really is ; or

(b) if it is not labelled in the prescribed manner; or

(c) if its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular.

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 substance; or

(b) if it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or

(c) if its container is composed, in whole or in part, of any poisonous or deleterious 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.

17B. Spurious drugs. — For the purposes of this chapter, a drug shall be deemed to be spurious, —

(a) if it is manufactured under a name which belongs to another drug; or

(b) if it is an imitation of, or is a subtiute for another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label or container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug; or

(c) if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist; or

(d) if it has been substituted wholly or in part by another drug or substance; or

(e) if it purports to be the product of a manufacturer of whom it is not truly a product.

17C. Misbranded cosmetics. — For the purposes of this Chapter, cosmetic shall be deemed to be misbranded, —

(a) if it contains a colour which is not prescribed; or

(b) if it not labelled in the prescribed manner; or

(c) if the label or container or anything accompanying the cosmetic bears any statement which is false or misleading in any particular.

17D. Spurious cosmetics. — For the purposes of this Chapter, a cosmetic shall be deemed to be spurious, —

(a) if it is manufactured under a name which belongs to another cosmetic; or

(b) if it is an imitation of, or a substitute for, another cosmetic or resembles another cosmetic in a manner likely to deceive or bears upon it or upon its label or container the name of another cosmetic unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other cosmetic; or

(c) if the label or container bears the name of an individual or a company purporting to be the manufacturer of the cosmetic which individual or company is fictitious or does not exist; or

(d) if it purports to be the products of a manufacturer of whom it is not truly a product.]

18. Prohibition of manufacture and sale of certain drugs and cosmetics. — From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf —

(a) [34] [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute —

[35] [(i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious.

(ii) any cosmetic which is not of a standard quality or is misbranded or spurious;]

(iia) any adulterated drug]

[36] [(iii) any patent or propriety medicine unless there is displayed in the prescribed manner on the label or container thereof [37] [the true formula or list of active ingredients contained in it together with the quantities thereof];

(iv) any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims [38] [to prevent, cure or mitigate] any such disease or ailment, or to have any other effect as may be prescribed;

(v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended;

(vi) any drug or cosmetic in contravention of any of the provision of the Chapter or any rule made thereunder;

(b) [39] [sell, or stock or exhibit or offer or distribute any drug or cosmetic which has been imported or manufactured in contravention of any of the provision of this Act or any rule made thereunder]

(c) [40] [manufacture for sale or for distribution, or sell stock or distribute any drug or cosmetic, except under, and in accordance exhibit or offer for sale], or with the conditions of a licence issued for the purpose of examination, test or analysis;

Provided further that the Central Government may; after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the manufacture for sale or for distribution, sale stocking or exhibiting or offering for sale or distribution of any drug or class of drugs not being of standard quality.

Explanation — [41] [ * * * * ]

Comments

Expression `offer for sale$ — The manner of keeping or exhibiting them in a shop would assume relevance and importance to see if they were really offered for sale. State of Karnataka v. M/s. Kannika Stores, Mysore and others. 1994 Cri.L.J. 743 = ILR (Kar) 1993 57 = 1993(1) Kant LJ 48 (Kant.)

Ayurvedic Practitioner — Is not authorized to stock Allopathic medicines. State of Punjab v. Lashkar Singh. 1992 Cri.L.J 1745 = 1992(1) Recent Cr 185 = (1992) 2 CCR 613 (P&H)

18A. disclosure of the name of the manufacturer, etc. — Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.

[42] [18B. Maintenance of records and furnishing of information. — Every person holding a licence under clause (c) of Section 18 shall keep maintain such records registers and other documents as may be prescribed and shall furnish to any officer or authority exercising any power or discharging any function under this Act such information as is required by such officer or authority for carrying out the purposes of this Act.”]

19. Pleas. — (1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug or cosmetic in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale.

(2) For the purposes of Section 18 a drug shall not be deemed to be misbranded or [43] [adulterated or spurious] or to below standard quality nor shall a cosmetic 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 substances or ingredient because the same is required for the manufacture or preparation of the drug or cosmetic as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the drug or cosmetic be deemed or to conceal its inferior quality or other defects; or

(b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it; provided that this clause shall not apply in relation to any sale or distribution of the drug or cosmetic occurring after the vendor or distributor became aware of such inter mixture.

(3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of Section 18 if he proves —

(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;

(b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and

(c) that the drug or cosmetic, while in his possession, was properly stored and remained in the same state as when he acquired it.

STATE AMENDMENTS

Uttar Pradesh

In its application to the State of Uttar Pradesh, after Section 19, Section 19-A inserted as follows:

“19-A. Burden of proof. — When any drug or cosmetic is seized from any person under Clause (c) of Section 22 by an Inspector in the reasonable belief that such drug or cosmetic is misbranded or adulterated, the burden of proving that such drug or cosmetic is not misbranded or adulterated shall be on the person from whose possession such drug or cosmetic was seized.”

[U.P. Act 47 of 1975]

West Bengal

In its application to the State of West Bengal, after Section 19, Section 19-A inserted as under:

“19-A. Burden of proof. — When any drug or cosmetic is seized from any person in the reasonable belief that such drug or cosmetic is misbranded or adulterated the burden of proving that such drug or cosmetic is not misbranded or adulterated shall be on the person from whose possession such drug or cosmetic was seized.”

[W.B. Act 47 of 1973]

20. Government Analysts. — (1) The State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualification, to be Government Analyst for such areas in the state and in respect of such drugs or classes of drugs or such cosmetics or classes of cosmetics as may be specified in the notifications.

(2) The Central Government may also, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Government Analysts in respect of such drugs or classes of drugs or such cosmetics or classes of cosmetics as may be specified in the notification.

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), neither the Central Government nor a State Government shall appoint as a Government Analyst any official not serving under it without the previous consent of the Government under which he is serving.

[44] [(4) No person who has any financial interest in the import, manufacture or sale of drugs or cosmetics shall be appointed to be a Government Analyst under sub-section (1) or sub-section (2) of this section.]

21. Inspectors. — (1) The Central Government or a State Government may by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be.

(2) powers which may be exercised by an Inspector and the duties which may be performed by him, the drugs or classes of drugs or cosmetics or classes of cosmetics, in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed shall be such as may be prescribed.

(3) No person who has any financial interest in the import, manufacture or sale or cosmetics shall be appointed to be an Inspector under this section.

(4) Every inspector shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code (45 of 1960) and shall be officially subordinate to such authority [45] [, having prescribed qualifications,] as the Government appointing him may specify in this behalf.

22. Powers of Inspectors. — (1) Subject to the provisions of Section 23 and of any rules made by the Central Government in this behalf, an Inspector may, within the local limits of the area for which he is appointed, —

[46] (a) inspect, —

(i) any premises wherein any drug or cosmetic is being manufactured and the means employed for standardising and testing the drug or cosmetic;

(ii) any premises wherein any drug or cosmetic is being sold, or stocked or exhibited or offered for sale, or distributed;

(b) take samples of any drug or cosmetic, —

(i) which is being manufactured or being sold or is stocked or exhibited or offered for sale, or is being distributed;

(ii) from any person who is in the course of conveying, delivering or preparing to deliver such drug or cosmetic to a purchaser or a consignee;

(c) at all reasonable times, with such assistance, if any, as he considers necessary, —

(i) search any person, what he has reason to believe, has secreted about his person, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed; or

(ii) enter and search any place in which he has reason to believe that an offence under this Chapter has been, or is being, committed; or

(iii) stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed,

and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days, or, unless the alleged offence is such that the defect may be removed by the possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or article by means of which the offence has been, or is being, committed or which may be employed for the commission of such offence.]

(cc) examine any record, register, document or any other material object found [with any person, or in any place, vehicle, vessel or other conveyance referred to in clause (c)], and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the Rules made thereunder;

(cca) require any person to produce any record, register or other document relating to the manufacture for sale or for distribution, stocking, exhibition for sale, offer for sale or distribution of any drug or cosmetic in respect of which he has reason to believe that an offence under this Chapter has been, or is being, committed;

(d) exercise such other powers as may necessary for carrying out the purposes of this Chapter or any rules made thereunder.

(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be, apply to any search or seizure under this Chapter as they apply to any search or seizure made under the authority of a warrant issued under [Section 94] of the said Code.

[47] [(2A) Every record, register or other document seized under clause (cc) or produced under clause (cca) shall be returned to the person, from whom they were seized or who produce the same within a period of twenty days of the date of such seizure or production, as the case may be, after copies thereof or extracts therefrom certified by that person, in such manner as may be prescribed, have been taken.]

(3) If any person wilfully obstructs an Inspector in the exercise of the powers conferred upon him by or under this Chapter, [48] [or refuse to produce any record, register or other document when so required under clause (ccc) of sub-section (1)].

Comments

Quashment of complaint — Sale and distribution of drugs — Amendment of Section 36-A by Amending Act No. 68 of 1982, offence under Section 33-1 is to be tried in a summary way — Notification issued by State of Haryana — Magistrate not empowered to take cognizance of complaint — Proceedings for warrant trial initiated against the provisions of Act — Complaint, summoning order and consequent proceedings quashed. Surinder Kumar Tuteja v. State of Haryana and Anothers. 1996 Cr.R. 527 (P&H)

23. Procedure of Inspectors. — (1) Where an Inspector takes any sample of a drug or cosmetic under this Chapter, he shall tender the fair price thereof and may require a written acknowledgement thereof.

(2) Where the price tendered under sub-section (1) is refused or where the Inspector seizes the stock of any drug or cosmetic under clause (c) of Section 22, he shall tender a receipt therefor in the prescribed form.

(3) Where an Inspector takes a sample of a drug or cosmetic for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked :

Provided that where the sample is taken from premises whereon the drug or cosmetic is being manufactured, it shall be necessary to divide the sample into three portions only:

Provided further that where the drug or cosmetic is made up in containers of small volume, instead of diving a sample as aforesaid, the Inspector may, and if the drug or cosmetic be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitable marking the same and, where necessary, sealing them.

(4) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows : —

(i) one portion or container he shall forthwith send to the Government analysts for test or analysis;

(ii) the second he shall produce to the Court before which proceedings, if any, are instituted in respect of the drug or cosmetic; and

(iii) the third, where taken, he shall send to the person, if any, whose name, address and other particulars have been disclosed under Section 18A.

(5) Where an Inspector takes any action under clause (c) of Section 22, —

(a) he shall use all dispatch in ascertaining whether or not the drug or cosmetic contravenes any of the provisions of Section 18 and, if it is ascertained that the drug or cosmetic does not so contravene forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized;

(b) if he seizes the stock of the drug or cosmetic, he shall as soon as may be, inform [49] [a Judicial Magistrate] and take his orders as to the custody thereof;

(c) without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possessor of the drug or cosmetic, he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order under the said clause.

(6) Where an Inspector seizes any record, register, document or any other material object under clause (cc) of sub-section (1) or Section 22, he shall, as soon as may be, inform [50] [a Judicial Magistrate] and take his orders as to the custody thereof.

24. Persons bound to disclose place where drugs or cosmetics are manufactured or kept. — Every person for the time being in charge of any premises whereon any drug or cosmetic is being manufactured or is kept for sale or distribution shall, on being required by an Inspector so to do, be legally bound to disclose to the Inspector the place where the drug or cosmetic is being manufactured or is kept, as the case may be.

25. Reports of Government Analysts. — (1) The Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis under sub-section (4) of Section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.

(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and other particulars have been disclosed under Section 18A, and shall retain the third copy for use in any prosecution in respect of the sample.

(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under Section 18A has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.

(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst$s report, the Court may, of its own motion or in its discretion at the request either of the complaint or the accused; cause the sample of drug or cosmetic produced before the Magistrate under sub-section (4) of Section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall conclusive evidence of the facts stated therein.

(5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct.

26. Purchaser of drug or cosmetic enabled to obtain test or analysis. — Any person [51] [or any recognised consumer association, whether such person is a member of that association or not] shall, on application in the prescribed manner and on payment of the prescribed fee, be entitled to summit for test or analysis to a Government Analyst any drug or cosmetic [52] [purchased by him or it] and to receive a report of such test or analysis signed by the Government Analyst.

[53] [Explanation. — For the purposes of this section and Section 32, “recognised consumer association” means a voluntary consumer association registered under Companies Act, 1956 (1 of 1956) or any other law for the time being in force.]

26A. Power of Central Government to prohibit manufacture, etc., of drug and cosmetic in public interest. — Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied, that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic value claimed or purported to be claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do, then, that Government may, by notification in the Official Gazette, prohibit the manufacture, sale or distribution of such drug or cosmetic.

[54] 27. Penalty for manufacture, sale etc., of drugs in contravention of this Chapter. — Whoever, himself of by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes, —

(a) any drug deemed to be adulterated under Section 17A or spurious under Section 17B or which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to a term of life and with fine which shall not be less than ten thousand rupees;

(b) any drug —

(i) deemed to be adulterated under Section 17A, but not being a drug referred to in clause (a), or

(ii) without a valid licence as required under clause (c) of Section 18,

shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees;

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year and of fine of less than five thousand rupees;

(c) Any drug deemed to be spurious under Section 17B, but not being a drug referred to in clause (a) 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 five thousand rupees :

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three years but not less than one year;

(d) any drug other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine.

Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.]

STATE AMENDMENTS

Uttar Pradesh

In its application to the State of Uttar Pradesh, for Section 27, substitute as under:

“27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter. — Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale, or distributes, —

(a) any drug —

(i)deemed to be misbranded under Clause (a), Clause (b), Clause (c), Clause (d), Clause (f) or Clause (g) of Section 17 or adulterated under Section 17-b, or

(ii)without a valid licence as required under Clause (c) of Section 18, or

(b) any drug other than drug referred to in Clause (a) in contravention of the provisions of this Chapter or any rule made thereunder,

shall be punished with imprisonment for life:

Provided that the Court may, for any special reasons to be recorded in writing impose a sentence of imprisonment which is less than imprisonment for life.”

[U.P. Act 47 of 1975]

West Bengal

In its application to the State of West Bengal, in Clause (a) of Section 27, for the words, “for a term which shall not be less than one year but which may extend to ten years” words “for life” substituted; in the proviso, for the words “imprisonment for less than one year” words “less than imprisonment for life” substituted; and in Clause (b), the words “for a term which may extend to three years” words “for life” substituted

[West Bengal Act 42 of 1973]

27A. Penalty for manufacture, sale, etc., of cosmetic in contravention of his Chapter. — Whoever himself or by any other person on his behalf manufactures for sale or for distribution, or stocks or exhibits or offers for sale —

(i) any cosmetic deemed to be spurious under Section 17C shall be punishable with imprisonment for terms which may extend to three years and with fine;

(ii) any cosmetic other than a cosmetic referred to in clause (i) above in contravention of any provisions of this Chapter or any rule made thereunder shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both.]

STATE AMENDMENTS

Uttar Pradesh

In its application to the State of Uttar Pradesh, for Section 27-A substitute as under:

“27-A. Penalty for manufacture, sale, etc., of cosmetics in contravention of this Chapter. — Whoever himself or by any other person on his behalf manufacturers for sale, sells, stocks or exhibits for sale, or distributes any cosmetics in contravention of any of the provisions of this Chapter or any rule made thereunder, shall be punishable with imprisonment for life and shall also be liable to fine:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment which is less than imprisonment for life.”

[U.P. Act 45 of 1975]

West Bengal

In its application to the State of West Bengal, in Section 27-A for the words “a term which may extend to one year, or with fine which may extend to five hundred rupees.” words “life or with fine,” substituted.

[West Bengal Act 42 of 1973]

28. Penalty for non-disclosure of the name of the manufacturer, etc. — Whoever contravenes the provisions of Section 18A [55] [or Section 24] shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to [56] [one thousand rupees], or with both.

[57] [28A. Penalty for not keeping documents, etc., and for non-disclosure of information. — Whoever without reasonable cause or excuse, contravenes the provisions of Section 18B shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both.

[58] [28B. Penalty for manufacture, etc., of drugs or cosmetics in contravention of section 26A. — Whoever himself or by any other person on his behalf manufactures or sells or distributes any drug or cosmetic in contravention of the provisions of any notification issued under Section 26A, shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to five thousand rupees.]

29. Penalty for use of Government Analyst$s report for advertising. — Whoever uses any report of a test or analysis made by the Central Drugs Laboratory or by a Government Analyst, or any extract from such report, for the purpose of advertising any drug or cosmetic, shall be punishable with fine which may extend to five hundred rupees.

30. Penalty for subsequent offences. — [59] [(1) Whoever having been convicted of an offence, —

(a) under clause (b) of Section 27 is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to six years and with fine which shall not be less than ten thousand rupees :

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than two years and of fine of less than ten thousand rupees;

(b) under clause (c) of Section 27, is again convicted of an offence under that clause be punishable with imprisonment for a term which shall not be less than six years but which may extend to ten years and with fine which shall not be less than ten thousand rupees;

(c) under clause (d) of Section 27, is again convicted of an offence under that clause shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to four years or with fine which shall not be less than five thousand rupees, or with both;]

(1A) Whoever, having been convicted of an offence under Section 27A is again convicted under that section, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to [60] [two thousand rupees], or with both.

(2) Whoever, having been convicted of an offence under Section 29 is again convicted of an offence under the section shall be punishable with imprisonment which may extend to ten years or with fine, or with both.

STATE AMENDMENTS

Uttar Pradesh

In its application to the State of Uttar Pradesh for Section 30 substitute as under:

“30. All offences punishable under this Chapter shall be cognizable and non-bailable.”

[U.P. Act 45 of 1975]

West Bengal

In its application to the State of Uttar Pradesh for Section 30 substitute as under:

“30. All offences punishable under this Chapter shall be cognizable and non-bailable.”[U.P. Act 45 of 1975]

West Bengal

In its application to the State of West Bengal, —

(a) in Section 30 (1)(a), for the words “ten years”, the words “imprisonment for life” shall be substituted;

(b) in Section 30 (1)(b), for the words “may extend to ten years or with fine, or with both”, the words “shall but be less than two years but which may extend to imprisonment for life and shall also be liable to fine”, shall be substituted;

(c) under Section 30(1-A) for the words “may extend to two years, or with fine which may extend to one thousand rupees, or with both”, the words “shall also be liable to fine” shall be substituted. [W.B. Act 42 of 1973]

31. Confiscation. — (1) Where any person has been convicted under this Chapter for contravening any such person of this Chapter or any rule made thereunder as may be specified by rule made in this behalf, the stock of the drug or cosmetic in respect of which the contravention has been made shall be liable to confiscation and if such contravention is in respect of —

[61] [(i) manufacture of any drug deemed to be misbranded under Section 17, adulterated under Section 17A or spurious under Section 17B; or]

(ii) [62] [manufacture for sale, or for distribution, sale, or stocking or exhibiting or offering for sale,] or distribution of any drug without a valid licence as required under clause (c) of Section 18.

any implements or machinery used in such manufacture, sale or distribution and any receptacles, packages or coverings in which such drug is contained and the animals, vehicles, vessels or other conveyances used in carrying such drug shall also be liable to confiscation;

(2) Without prejudice to the provisions contained in sub-section (1) where the Court is satisfied, on the application of an Inspector or otherwise and after such inquiry as may be necessary that the drug or cosmetic is not of standard quality [63] [or is a misbranded, adulterated or spurious drug or misbranded or suprious cosmetic], such drug or, as the case may be, such cosmetic shall be liable to consfication.

[64] [31A. Application of provisions to Government departments. — The provisions of this Chapter except those contained in Section 31 shall apply in relation to the manufacture, sale or distribution of drugs by any department of Government as they apply in relation to the manufacture, sale or distribution of drugs by any other person.]

32. Cognizance of offences. — (1) No prosecution under this Chapter shall be instituted except by an Inspector [65] [or by the person aggrieved or by a recognised consumer association whether such person is a member of that association or not].

(2) No Court inferior to that [66] [a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter.

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter.

STATE AMENDMENTS

Haryana

Same as in Punjab.

[Haryana A.L.O. 1968]

Punjab

For the words “a Magistrate” in sub- section (2), substitute the words `a Judicial Magistrate$.

[Punjab Act 25 of 1964]

West Bengal

For Section 32 substitute as under:

[1] “32. Cognizance of offence and arrest without warrant. — [1] (1) All offences punishable under this Act shall be cognizable and non-bailable.

(2) Any Police Officer not below the rank of a Sub- Inspector of Police may arrest without warrant any person against whom a reasonable complaint has been made or credible information has been received of his having been concerned in any of the offences punishable under this Act”.

[W.B. Act 42 of 1973]

Comments

Appeal against acquittal — Public prosecutor under Section 378(1) of Cr.P.C is competent to present appeal against acquittal under Drugs Act. State of Maharashtra v. Jethmal Himatmal Jain and another. 1994 Cri.L.J. 2613 = 1994(4) Bom CR 103 (Bom.)

Complaint — Filing of by aggrieved person — Aggrieved person can also file a complaint on which cognizance can be taken. Raghunath Bhagat v. State of Bihar. 1991 Cri.L.J. 2054 = 1990 BBCJ 588 = 1990(2) BLJR 1299 (Patna)

32A. Power of Court to implead the manufacturer, etc. — Where, at any time during the trial of any offence under this Chapter alleged to have been committed by any person, not being the manufacture of a drug or cosmetic or his agent for the distribution thereof the Court is satisfied, on the evidence in that offence, then the Court may, notwithstanding anything contained [67] [in sub-section (1), (2) and (3) of Section 319 of the Code of Criminal Procedure, 1973 (2 of 1974)] proved against him as though a prosecution had been instituted against him under Section 32.

33. Power of Central Government to make rules. — (1) The Central Government may [68] [after consultation with, or on the recommendation of the Board] and after previous publication by notification in the Official Gazette, make rules for the purposes of giving effect to the provisions of this Chapter :

Provided that consultation with the Board may be dispensed with if the Central Government is of opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case the Board shall be consulted within six months, of the making on the rules and the Central Government shall take into consideration any suggestions which the Board may make in relation to the amendment of the said rules.

(2) Without prejudice to the generality of the foregoing power such rules may.

(a) provide for the establishment of laboratories for testing and analysing drugs or cosmetic.

(b) prescribe the qualifications and duties of Government Analysts and the qualifications of Inspectors;

(c) prescribe the methods of test or analysis to be employed in determining whether a drug or cosmetic is of standard quality;

(d) prescribe, in respect of biological and organometallic compounds, the units or methods of standardisation;

(dd) prescribe under clause (d) of Section 17A the colour or colours which a drug may bear or contain for purposes of colouring;

(e) prescribe the forms of licences [69] [for the manufacture for sale or for distribution,] for the sale and for the distribution of drugs or any specified drug or class of drugs or of cosmetics or any specified cosmetic or class of cosmetics, the form of application for such licences, the conditions subject to which such licences may be issued, the authority empowered to issue the same [70] [the qualifications of such authority] and the fees payable therefor [71] [and provide for the cancellation or suspension of such licences in any case where any provision of this Chapter or the rules made thereunder is contravened or any of the conditions subject to which they are issued is not compiled with];

[72] (ee) prescribe the records, registers or other documents to be kept and maintained under Section 18B;

(eea) prescribe the fees for the inspection (for the purposes of grant or renewal of licences) of premises, wherein any drug or cosmetic is being or is proposed to be manufactured;

(eeb) prescribe the manner in which copies are to be certified under sub-section (2A) of Section 22;]

(f) specify the diseases or ailments which a drug may not purport or claim to prevent; cure or mitigate and such other effects which a drug may not purport or claim to have;

(g) prescribe the conditions subject to which small quantities of drugs may be manufactured for the purpose of examination, test or analysis;

(h) require the date of manufacture and the date of expiry of potency to be clearly and truly stated on the label or container of any specified drug or class of drugs, and prohibit the sale, stocking or exhibition for sale, or distribution of the said drug or class of drugs after the expiry of a specified period from the date of manufacture or after the expiry of the date of potency;

(i) prescribe the conditions to be observed in the packing in bottles packages, and other containers of drugs or cosmetics [73] [including the use of packing material which comes into direct contact with the drugs,] and prohibit the sale stocking or exhibition for sale, or distribution of drugs or cosmetics packed in contravention of such conditions;

(j) regulate the mode of labelling packed drugs or cosmetics, and prescribe the matters which shall or shall not be included in such labels;

(k) prescribe the maximum proportion of any poisonous substance which may be added to or contained in any drug, prohibit the manufacture, sale or stocking or exhibition for sale, or distribution of any drug in which that proportion is exceeded, and specify substances which shall be deemed to be poisonous for the purposes of this Chapter and the rules made thereunder;

(l) require that the accepted scientific name of any specified drug shall be displayed in the prescribed manner on the label or wrapper of any patent or proprietary medicine containing such drug;

[74] [* * * * *]

(n) prescribe the powers and duties of Inspectors [75] [and the qualifications of the authority to which such Inspectors shall be subordinate] and specify the drugs or classes of drugs or cosmetics in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed;

(o) prescribe the forms of report to be given by Government Analysts, and the manner of application for test or analysis under Section 26 and the fees payable therefor;

(p) specify the offences against this Chapter or any rule made thereunder in relation to which an order confiscation may be made under Section 31; and

(q) provide for the exemption, conditionally or otherwise, from all or any of the provisions of this Chapter or the rules made thereunder, of any specified drug or class of drugs or cosmetics or class of cosmetics;

STATE AMENDMENT

Maharashtra

(i) In Section 33 in sub-section (2), —

(a) in Clause (e), the words “and the fees payable therefor” shall be deleted; and

(b) Clause (eee) shall be deleted; and

(c) in Clause (o), the words “and the fees payable thereof” shall be deleted.

(ii) After Section 33, the following section shall be inserted namely: —

“33-1A. Power of State Government to make rules. — The State Government may, by notification in the official Gazette and subject to the condition of previous publication, makes rules, to prescribe the fees payable for the following purposes of this Chapter namely: —

(a) grant or renewal, of a licence for the manufacture for sale or distribution for the sale and for the distribution of drugs or any specified drugs or class of drugs or of cosmetics or any specified cosmetics or class of cosmetics;

(b) inspection (for the purposes of grant or renewal of licences) of premises, wherein any drugs or cosmetic is being or is proposed to be manufactured;

(c) test or analysis of any drug or cosmetic by Government Analyst; and

(d) any other matter for which fees may be prescribed under this Chapter”.

[Maharashtra Act, 31 of 1989]

33A. Chapter not to apply to [76] [Ayurvedic Sidhha or Unani] drugs. — Save as otherwise provided in this Act, nothing contained in this Chapter shall apply to [77] [Ayurvedic Siddha or Unani] drugs.

 

 

CHAPTER V-MISCELLANEOUS33P. Power to give directions. — The Central Government may give such directions to any State Government as may appear to the Central Government to be necessary for carrying into execution in the State any of the provisions of this Act or of any rule or order made thereunder.]

34. Offences by companies. — (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proved that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. — For the purposes of this section —

(a) “company” means a body corporate, and includes a firm or other association of individuals; and

(b) “director” in relation to a firm means a partner in the firm.

34A. Offences by Government departments. — Where an offence under Chapter IV or Chapter IVA has been committed by any department of Government, such authority as is specified by the Central Government to be incharge of manufacture, sale or distribution of drugs or where no authority is specified, the head of the department, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this section shall render any such authority or person liable to any punishment provided in Chapter IV or Chapter IVA, as the case may be, if such authority or person proves that the offence was committed without its or his knowledge or that such authority or person exercised all due diligence to prevent the commission of such offence.

[101] [34AA. Penalty for vexatious search or seizure. — Any Inspector exercising powers under this Act or the rules made thereunder, who, —

(a) without reasonable ground of suspicion searches any place, vehicle, vessel or other conveyance; or

(b) vexatiously and unnecessarily searches any person; or

(c) vexatiously and unnecessarily sizes any drug or cosmetic, or any substance or article, or any record, register, document or other material object; or

(d) commits, as such Inspector, any other act, to the injury of any person without having reason to believe that such act is required for the execution of his duty.

shall be punishable with fine which may extend to one thousand rupees.]

35. Publication of sentences passed under this Act. — (1) If any person is convicted of any offence under this Act, [102] [the Court before which the conviction takes place shall, on application made to it by the Inspector, cause] lawful for the Court before which the conviction takes place to cause the offender$s name, place or residence, the offence of which he has been convicted and the penalty which has been inflicted upon him, to be punished at the expense of such person in such newspapers or in such other manner as the Court may direct.

(2) The expenses of such publication shall be deemed to form part of the costs relating to the conviction and shall be recoverable in the same manner at those costs are recoverable.

 

36. Magistrate$s power to impose enhanced penalties. — Notwithstanding anything contained in [103] [the Code of Criminal Procedure, 1973 (2 of 1974)] it shall be lawful for any Metropolitan Magistrate or any Magistrate of the first class to pass any sentence authorized by this Act in excess of his powers under the said Code.

 

[104] [36A. Certain offences to be tried summarily. — Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974), all offences under this Act, punishable with imprisonment for a term not exceeding three years, other than an offence under clause (b) of sub-section (1) of Section 33-I, shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial :

Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year :

Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the Magistrate that the nature of case is such that a senctence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness who has been examined and proceed to hear or rehear the case in the manner provided by the said Code.]

37. Protection of action taken in good faith. — No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.

38. Rules to be laid before Parliament. — Every rule made under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, [105] [and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

STATE AMENDMENT

Maharashtra

(i) In Section 38 for the words “Every rule made” the words “Every rule made by the Central Government” shall be substituted.

(ii) After Section 38 the following section shall be inserted namely: —

“39. Rules to be laid before State Legislature. — Every rule made by the State Government under this Act shall be laid as soon as may be after it is made, before each house of the State Legislature, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, and notify such decision in the official Gazette the rule shall from the date of application of such notification have effect only in such modified form or be of no effect, as the case may be so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.”

THE FIRST SCHEDULE

[See Section 3(a)]

[106] [A — AURVEDIC AND SIDDHA SYSTEMS]

——————————————————————————————————————————-

Serial No. Name of book

(1) (2)

———————————————————————————————————————————

Ayurveda

1. Arogya Kalpadruma

2. Arka Prakasha

3. Arya Bhishak

4. Ashtanga Hridya

5. Ashtanga Samgraha

6. Ayurveda Kalpadruma

7. Ayurveda Prakasha

8. Ayurveda Samgraha

9. Bhaishajya Ratnavali

10. Bharat Bhaisnajya Ratnakara

11. Bhava Prakashal

12. Brihat Nighantu Ratnakara

13. Charaka Samhita

14. Chakra Datta

15. Gada Nigraha

16. Kupi Pakva Rasayana

17. Nighantu Ratnakara

18. Rasa Chandanshu

19. Rasa Raja Sundara

20. Rasaratna Samuchaya

21. Rasatanatara Sara Siddha Prayoga Samgraha

22. Rasa Tarangini

23. Rasa Yoga Sagara

24. Rasa Yoga Ratnakara

25. Rasa Yoga Samgraha

26. Rasendra Sara Samgraha

27. Rasa Pradipika

28. Sahasrayoga

29. Sarvaroga Chikitsa Ratnam

30. Sarvavoga Chikitsa Ratnam

31. Sharangadhara Samhita

32. Siddha Bhaishajya Manimala

33. Sidha Yoga Samgraha

34. Sushruta Samhita

35. Vaidya Chintamani

36. Vaidyaka Shabda Sindu

37. Vaidyaka Chikitsa Sara

38. Vaidya Jiwan

39. Basave Rajeeyam

40. Yoga Ratnakara

41. Yoga Tarangini

42. Yoga Chintamani

43. Kashyapasamhita

44. Bhelasamhita

45. Vishwanathachikitsa

46. Vrindachikitsa

47. Ayurvedachintamani

48. Abhinavachintamani

49. Ayurveda-ratnakar

50. Yogaratnasangraha

51. Rasamrita

52. Drayvagunanighantu

53. Rasamanijari

54. Bangasena

[107] [54-A Ayurvedic Formulary of India (Part I)

54-B. Ayurveda Sara Samagraha] Siddha

55. Siddha Vaidya Thirattu

56. Therayar Maha Karisal

57. Brahma Muni Karukkadai (300)

58. Bhogar (700)

59. Pulippani (500)

60. Agasthiyar Paripurnam (400)

61. Therayer Yamagan

62. Agasthiyar Chenduram (300)

63. Agasthiyar (1500)

64. Athmarakshamrutham

65. Agasthiyar Pin (80)

66. Agasthiyar Ratna Churukkam

67. Therayar Karisal (300)

68. Veeramamuni Nasa Kandam

69. Agasthiyar (600)

70. Agasthiyar Kanma Soothiram

71. 18 Siddhar$s Chillarai Kovai

72. Yog Vatha Kaviyam

73. Therayar Tharu

74. Agasthiyar Vaidya Kaviyam (1500)

75. Bala Vagadam

76. Chimittu Rathna (Rathna) Churukkam

77. Nagamuni (200)

78. Agasthiyar Chillarai Kovai

79. Chikicha Rathna Deepam

80. Agasthiyar Nayana Vidhi

81. Yugi Karisal (151)

82. Agasthiyar Vallathi (600)

83. Therayar Thaila Varkam

[108] 84. Diddha Formulary of India (Part I)]

[B-UNANI (TIBB) SYSTEM] [1]

1. Karabadin Qadri

2. Karabadin Kabir

3. Karabadin Azam

4. Ilaj-ul-Amraz

5. Al Karabadin

6. Biaz Kabir Vol. II

7. Karabadin Jaddi

8. Kitalf-ul-Taklis

9. Sanat-ul-Taklis

10. Mifte-ul-Khazain

11. Madan-ul-Aksir

12. Makhzan-ul-murabhat

13. National Formulary of Unani Medicine (Part I)
THE SECOND SCHEDULE
[See Sections 8 and 16]

STANDARDS TO BE COMPLIED WITH BY IMPORTED DRUGS AND BY DRUGS MANUFACTURED FOR SALE, SOLD, STOCKED OR EXHIBITED FOR SALE OR DISTRIBUTED

1. Patent or proprietary medicines [109] [other than Homoeopathic medicines].
The formula or list of ingredients displayed in the prescribed manner on the label or container and such other standards as may be prescribed.

[110] [2. Substances commonly known as vaccines, sera, toxins, toxoids, anti-toxins and antigens and biological products of like nature, for human use or for veterinary use.
The standards maintained at the International Laboratory for Biological Standards, Stantans Serum Institute, Copenhagen and at the Central Veterinary Laboratory, Weybridge Surrey, UK., and such other laboratories recognised by the World Health Organisation from time to time, and such further standards of strength, quality, and purity, as may be prescribed.]

3. [111] [***]

4. Substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which causes disease in human beings or animals.
Such standards as may be prescribed.

[112] 4A. Homoeopathic Medicines : —

(a) Drugs included in the Homoeopathic Pharmacopoeia of India.

(b) Drugs not included in the Homoeopathic Pharmacopoeia of India, but which are included in the Homoeopathic Pharmacopoeia of United States of America or the United Kingdom or the German Homoeopathic Pharmacopoeia.

(c) Drugs not included in the Homoeopathic Pharmacopoeia of India or the United States of America or the United Kingdom or the German Homoeopathic Pharmacopoeia.

Standards of identity, purity and strength specified in the edition of the Homoeopathic Pharmacopoeia of India for the time being and such other standards as may be prescribed.

Standards of identity, purity and strength prescribed for the Drugs in the edition on such Pharmacopoeia for the time being in which they are given and such other standards as may be prescribed.

The formula or list of ingredients displayed in the prescribed manner on the label of the container and such other standards as may be prescribed by the Central Government].

5. Other drugs : —

(a) Drugs included in the Indian Pharmacopoeia.

(b) Drugs not included in the Indian Pharmacopoeia but which are included in the official Pharmacopoeia of any other Country.

Standards of identity, purity and strength specified in the edition of the Indian Pharmacopoeia for the time being in force and such other standards as may be prescribed.

In case the standards of identity, purity and strength for drugs are not specified in the edition of the Indian Pharmecopoeia for the time being in force but are specified in the edition of the Indian Pharmacopoeia immediately preceding the standards of identity, purity and strength shall be those occurring in such immediately preceding edition of such official Pharmacopoeia and such other standars as may be prescribed.

Standards of identity, purity and strength specified for drugs in the edition of such official Pharmacopoeia of any other country for the time being in force and such other standards as may be prescribed.

In case the standard of identity, purity and strength for drugs are not specified in the edition of such official Pharmacopoeia for the time being in force, but are specified in the edition immediately preceding, the standards of identity, purity and strength shall be those occurring in such immediately preceding edition of such official Pharmacopoeia and such other standards as may be prescribed.]

——————————————————————————–

[1] Subs. by Act No. 68 of 1982, for the words “Ayurvedic (including Siddha) and Unani”. (w.e.f. 1-2-1983).

[2] Subs. by Act No. 68 of 1982, for the words “disease in human beings, mentioned in processed and manufactured” (w.e.f. 1-2-1983).

[3] Subs. by Act No 68 of 1982, for the words “Ayurvedic(including Siddha) and Unani (Tibb) systems of medicine” (w.e.f. 1-2-1983).

[4] Subs. by Act No. 68 of 1982, for the words Ayurvedic (including Siddha) and Unani (w.e.f. 1-2-1983).

[5] Subs. by Act No. 68 of 1982, for the words for “Ayurvedic and Unani Drugs Technical Advisory Board” (w.e.f. 1-2-1983).

[6] Certain words omitted by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[7] Subs. for sub-clause (i) by Act No 68 of 1982.

[8] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[9] Subs. by Act No. 68 of 1982, for the words “Ayurvedic (including Sidha) or Unani”.

[10] Cl. (d) omitted by Act No. 19 of 1972.

[11] Subs. by Act No. 68 of 1982 for the words `Ayurvedic (including Siddha) or Unani$.

[12] Subs. for “sale and distribution” by Act No 68 of 1982, (w.e.f. 1-2-1983).

[13] Subs. for “or the packing of any drug” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[14] Subs. for clause (h) by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[15] Cls. (b) and (c) omitted by act No. 11 of 1955.

[16] Subs. for “Ayurvedic (including Siddha) or Unani” by Act. No. 68 of 1982 (w.e.f. 1- 2-1983).

[17] Subs. for Ayurvedic (including Siddha) or Unani by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[18] Subs. for “IMPORT OF DRUGS” by Act No.. 68 of 1982 (w.e.f. 1-2-1983).

[19] Subs. for Section 9 by Act No. 68 of 1982 (w.e.f. 1-2.1983).

[20] Subs. for Section 9A and 9B by Act No. 68 of 1982 (w.e.f. 1- 2-1983).

[21] Subs. for “or misbranded cosmetic” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[22] Subs. for “adulterated” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[23] Subs. for “the true formula or list of ingredients contained in it, in a manner readily intelligible to the members of the medical professions” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[24] Explanation omitted by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[25] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[26] Now see the Customs Act, 1962.

[27] Subs. for “and prescribe the from and conditions of such licences, the authority empowered to issue the same, and the fees payable therefor” by Act No. 68 of 1982, (w.e.f. 1-2-1983)

[28] Subs. for “Section 9B “ by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[29] Ins. by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[30] Subs. for Section 13 by Act No. 68 of 1982 (w.e.f. 1- 2-1983).

[31] Subs. for “of a Presidency Magistrate or of a Magistrate of the first class” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[32] Subs. for “DRUGS” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[33] Subs. for Section 17, 17A and 17B by Act No. 68 of 1982, (w.e.f.1-2-1983).

[34] Subs. for “manufacturer for sale, or stock or exhibit for sale,” by Act No. 68 of 1982, Sec. 14(a) (i); (w.e.f. 1-2-1983).

[35] Subs. for sub-clause (i), (ii) and (iia) by Act No. 68 of 1982, Sec. 14(a) (ii); (w.e.f. 1-2-1983).

[36] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[37] Subs, for “the true formula or list of ingredients contained in it in a manner readily intelligible to the members of the medical profession” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[38] Subs. by Ibid., for “to cure or mitigate”.

[39] Subs. for “sell, or stock or exhibit for sale” by Act No. 68 of 1982 (w.e.f. 1-2-1984).

[40] Subs. for “manufacturer for sell, or stock or exhibit for sale” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[41] Omitted by Act No. 68 of 1962 (w.e.f. 1-2-1983).

[42] Ins. by Act. No. 68 of 1982 (w.e.f. 1-2-1983).

[43] Subs. for “adulterated” by Act No. 68 of 1982) (w.e.f. 1-2-1983).

[44] Ins. by Act No 68 of 1982 (w.e.f. 1-2-1983).

[45] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[46] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[47] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[48] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[49] Subs. for a “a Magistrate” by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[50] Subs, for a a Magistrate by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[51] Ins. by Act No. 71 of 1986 (w.e.f. 15-9- 1987).

[52] Subs. for the words “purchased by him” by Act No. 71 of 1986 (w.e.f. 15-9-1987).

[53] Added by Act No. 71 of 1986 (w.e.f. 15-9-1987).

[54] Subs. for Section 27 and 27A by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[55] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[56] Subs. for “five hundred rupees” by Act No. 68 of 1982 (w.e.f. 1-2- 1983).

[57] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[58] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[59] Subs. for sub-section (1) by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[60] Subs. for “one thousand rupees” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[61] Subs. for clause (i) by Act No. 64 of 1982 (w.e.f. 1-2-1983).

[62] Subs. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[63] Subs. of `misbranded or adulterated drug, or misbranded cosmetics$ by Act No. 68 of 1982.

[64] Ins. by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[65] Ins. by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[66] Subs. for `a presidency Magistrate or Magistrate of the first class by Act No. 68 of 1982.

[67] Subs. for `in sub-section (1) of Section 351 of Code of Criminal Procedure 1898 by Act No. 68 of 1982.

[68] Subs. for “after consultation with the board” by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[69] Subs. for “for the manufacture for sale” by Act No. 68 of 1982 (w.e.f. 1-2- 1983).

[70] Ins. by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[71] Ins. by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[72] Ins. by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[73] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[74] Cl. (m) omitted by Act No. 13 of 1964, (w.e.f. 15-9-1964).

[75] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[76] Subs. for “Ayurvedic (including Siddha) or Unani” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[77] Subs. for Ayurvedic (including Siddha) or Unani By Act No. 68 of 1982 (w.e.f. 1-2-1983).

[78] Subs. for “Ayurvedic (including Siddha) or Unani” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[79] Subs. for Ayurvedic (including Siddha) or Unani By Act No. 68 of 1982 (w.e.f. 1-2-1983).

[80] Subs. for “Ayurvedic and Unani Drugs Technical Advisory Board” by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[81] Subs. for clause (iii) by Act No. 68of 1982, (w.e.f. 1-2-1983).

[82] Subs. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[83] Subs. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[84] Subs. for Sections 33D and 33E by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[85] Ins. by Act No. 68 of 1982 Sec. 32 (w.e.f. 1-2-1983).

[86] Subs. for “Ayurvedic (including Siddha) or Unani” by Act No. 68 of 1982, (w.e.f. 1-2-1983).

[87] Subs. for Sections 33I and 33J by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[88] Subs. for “Ayurvedic (including Siddha) or Unani” by Act No. 68 of 1982 (w.e.f. 1-2- 1983).

[89] Subs. for Ayurvedic (including Siddha) or Unani by Act No. 68 of 1982 (w.e.f. 1-2-1983)

[90] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[91] Subs. for “of a Presidency Magistrate or of a Magistrate of the first class” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[92] Subs. for “after consultation with the Board” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[93] Subs. by Act No. 68 of 1982, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

[94] Subs. by Act No. 68 of 1982, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

[95] Subs. by Act No. 68 of 1982, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983)

[96] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[97] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[98] Subs. for clause (f) by Act No. 68 of 1982 (w.e.f. 1-2- 1983).

[99] Subs. for Ayurvedic (including Siddha) or Unani by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[100] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983)

[101] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[102] Subs. for “it shall be lawful for the Court before which the conviction takes place to cause” by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[103] Subs. for `The Code of Criminal Procedure 1898$.

[104] Ins. by Act No. 68 of 1982 (w.e.f. 1-2-1983).

[105] Subs. for “before the expiry of the session in which it is so laid or the successive sessions aforesaid” by Act No. 68 of 1982.

[106] Subs. by Act No. 68 of 1982, for “A — AYURVEDIC SIDHA SYSTEM”.

[107] Ins. by G.S.R. 735 (E), dated 28th August, 1987.

[108] Subs. by Act No. 68 of 1982, Section 41(b) (w.e.f. 1st February, 1983).

[109] Ins. by Notification No. SO 887, dated 19th March, 1966, Gazette of India, Pt. II, Section 3 (ii), p. 819.

[110] Subs. by GSR 299, (E), dated 23rd April, 1984.

[111] Omitted by GSR 299(E), dated 23rd April, 1984.

[112] Amended by Ministry of Health and Family Welfare Notification No. X-11014/3/77-D/M/S&PFA, dated 6th June, 1978, GSR 820, dated 24th June, 1978, Gazette of India, Pt. 11, Section (3)(ii), p. 1471.

CHAPTER III- [18] [IMPORT OF DRUGS AND COSMETICS]

. Standards of quality. — (1) For the purposes of this Chapter, the expression “standard quality” means —

(a) in relation to a drug, that the drug complies with the standard set out in the Second Schedule, and

(b) in relation to a cosmetic, that the cosmetic complies with such standard as may be prescribed.

(2) The Central Government, after consultation with the Board and after giving by notification in the Official Gazette not less than three months$ notice or its intention so to do, may by a like notification add to or otherwise amend [the Second Schedule] for the purpose of this Chapter, and thereupon the Second Schedule shall be deemed to be amended accordingly.

[19] [9. Misbranded drugs. — For the purposes of this Chapter, a drug shall be deemed to be misbranded —

(a) if it is so coloured, coated, powdered or polished that damage is concealed or if it is made to appear of better or greater therapeutic value than it really is; or

(b) if it is not labelled in the prescribed manner; or

(c) if its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular.”

[20] [9A. 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 of decomposed substance; or

(b) if it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or

(c) if its container is composed in whole or in part, of any poisonous or deleterious 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

(f) if any substance has been mixed therewith so as to reduce its quality or strength.

9B. Spurious drugs. — For the purposes of this Chapter, a drug shall be deemed to be spurious —

(a) if it is imported under a name which belongs to another drug; or

(b) if it is an imitation of or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label or container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug; or

(c) if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug which individual or company is fictitious or does not exist; or

(d) if it has been substituted wholly or in part by another drug or substance; or

(e) if it purports to be the product of a manufacturer of whom it is not truly a product.

9C. Misbranded cosmetics. — For the purposes of this Chapter, a cosmetic shall be deemed to be misbranded —

(a) if it contains a colour which is not prescribed; or

(b) it is not labelled in the prescribed manner; or

(c) if the label or container or anything accompanying the cosmetic bears any statement which is false or misleading in any particular.

9D. Spurious cosmetics. — For the purposes of this Chapter, a cosmetic shall be deemed to be spurious, —

(a) if it is imported under a name which belongs to another cosmetic; or

(b) if it is an imitation of, or is a substitute for, another cosmetic or resembles another cosmetic in a manner likely to deceive or bears upon it or upon its label or container the name of another cosmetic, unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other cosmetic; or

(c) if the label or container bears the name of an individual or a company purporting to be the manufacturer of the cosmetic which individual or company is fictitious or does not exist; or

(d) if it purports to be the product of a manufacturer of whom it is not truly a product.]

10. Prohibition of import of certain drugs or cosmetics. — From such date as may be fixed by the Central Government by notification the Official Gazette in this behalf, no person shall import —

(a) any drug or cosmetic which is not of standard quality;

(b) any misbranded drug or [21] [misbranded or spurious cosmetic];

(bb) any [22] [adulterated or spurious];

(c) any drug or cosmetic for the import of which a licence is prescribed, otherwise than under, and in accordance with, such licence;

(d) any patent or proprietary medicine, unless there is displayed in the prescribed, manner on the label or container thereof [23] [the true formula or list of active ingredients contained in it together with the quantities thereof];

(e) any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims to cure or mitigate any such disease or ailment, or to have any such other effect, as may be prescribed;

(ee) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended;

(f) any drug or cosmetic the import of which is prohibited by rule made under this Chapter;

Provided that nothing in this section shall apply to the import, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis or for personal use:

Provided further that the Central Government may, after consultation with the Board, by notification in the Official Gazette, permit subject to any conditions specified in the notification, the import of any drug or class of drugs not being of standard quality.

[24] [ * * * * * * ]

[25] [10A. Power of Central Government to prohibit import of drugs and cosmetics in public interest. — Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic value claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do then that Government may, by notification in the Official Gazette, prohibit the import of such drug or cosmetic.]

11. Application of law relating to sea customs and powers of Customs Officers. — (1) The law for the time being inforce relating to sea customs and to goods, the import of which is prohibited by Section 18 of the Sea Customs Act, 1878 [26] (8 of 1878) shall, subject to the provisions of Section 13 of this Act, apply in respect of drugs [and cosmetics] the import of which is prohibited under this Chapter; and officers of Customs and officers empowered under that Act to perform the duties imposed thereby on a Customs Collector and other drugs and cosmetic as they have for the time being in respect of such goods as aforesaid.

(2) Without prejudice to the provisions of sub-section (1), the Customs Collector or any officer of the Government authorized by the Central Government in this behalf, may detain any imported package which he suspects to contain any drug for cosmetic the import of which is prohibited under this Chapter and shall forthwith report such detention to the Drugs Controller, India, and, if necessary, forward the package or sample of any suspected drug for cosmetic found therein to the Central Drugs Laboratory.

12. Power of Central Government to make rules. — (1) The Central Government may, after consultation with or on the recommendation of the Board and after previous publication by notification in the Official Gazette, make rules for the purpose of giving effect to the provisions of this Chapter:

Provided that consultation with the Board may be dispensed with if the Central Government is of opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case the Board shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Board may make in relation to the amendment of the said rules.

(2) Without prejudice to the generality of the foregoing power, such rules may —

(a) specify the drugs or classes of drugs or cosmetics or classes of cosmetic for the import of which a licence is required [27] [and prescribe the form and conditions of such licences, the authority empowered to issue the same, the fees payable therefor and provide for the cancellation, or suspension of such licence in any case where any provision of this Chapter or the rules made thereunder is contravened or any of the conditions subject to which the licence is issued is not compiled with];

(b) prescribe the methods of test or analysis to be employed in the determining whether a drug or cosmetic is of standard quality;

(c) prescribe, in respect of biological and organometallic compounds, the units or methods of standardisation;

(cc) prescribe under clause (d) of [28] [Section 9A] the colour or colours which a drug may bear or contain for purposes of clouring.

(d) specifying the distances or ailments which an imported drug may not purport or claim to prevent, cure or mitigate and such other effect which such drug may not purport or claim to have;

(e) prescribe the conditions subject to which small quantities of drugs, the import of which is otherwise prohibited under this Chapter, may be imported for the purpose of examination, test or analysis or for personal use;

(h) regulate the submission by importers, and the securing, of samples of drugs or cosmetics for examination, test or analysis by the Central Drugs Laboratory, and prescribe the fees, if any, payable for such examination, test or analysis;

(i) prescribe the evidence to be supplied, whether by accompanying documents or otherwise, of the quality of drugs or cosmetics sought to be imported, the procedure of officers of Customs in dealing with such evidence, and the manner of storage at places of import of drugs or cosmetics detained pending admission;

(j) provide for the exemption, conditionally or otherwise, from all or any of the provisions of this Chapter and the rules made thereunder of drugs or cosmetics imported for the purpose only of transport through, and export from India.

(k) prescribe the conditions to be observed in the packing in bottles, packages or other containers, of imported drugs or cosmetics [29] [including the use of packing material which comes into direct contact with the drugs];

(l) regulate the mode of labeling drugs or cosmetics imported for sale in package, and prescribe the manner which shall or shall not be included in such labels;

(m) prescribe the maximum proportion of any poisonous substance which may be added to or contained in any imported drug, prohibit the import of any drug in which that proportion is exceeded, and specify substances which shall be deemed to be poisonous for the purposes of this Chapter and the rules made thereunder;

(n) require that the accepted scientific name of any specified drug shall be displayed in the prescribed manner on the label or wrapper of any imported, patent or proprietary medicine containing such drug;

(o) provide for the exemption, conditioually or otherwise, from all or any of the provisions of this Chapter or the rules made thereunder of any specified drug or class of drugs or cosmetic or class of cosmetics.

[30] [13. Offences. — (1) Whoever himself or by any other person on his behalf imports, —

(a) any drug deemed to be adulterated under Section 9A or deemed to be a spurious drug under Section 9B or any spurious cosmetic referred to in Section 9D or any cosmetic of the nature referred to in clause (ee) of Section 10 shall be punishable with imprisonment for a term which may extend to three years and a fine which may extend to five thousand rupees;

(b) any drug or cosmetic other than a drug or cosmetic referred to in clause (a), the import of which is prohibited under Section 10, or any rule made under this Chapter, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both;

(c) any drug or cosmetic in contravention of the provisions of any notification issued under section 10A, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both.

(2) Whoever having been convicted of an offence —

(a) under clause (a) or clause (c) of sub-section (1), is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten thousand rupees, or with both;

(b) under clause (b) of sub-section (1), is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

(3) The punishment provided by this section shall be in addition to any penalty to which the offender may be liable under provisions of Section 11.]

14. Confiscation. — Where any offence punishable under Section 13 has been committed, the consignment of the drugs or cosmetics in respect of which the offence has been committed shall be liable to confiscation.

15. Jurisdiction. — No Court inferior to that [31] [of a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under Section 13.

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3 thoughts on “THE DRUGS AND COSMETICS ACT, 1940

  1. D V Manchanda

    I want to know that a shop keeper having licence for selling of Drugs and cosmetics can sell any Food item which is not for Human consumption and not produced under strict hygienic conditions and which may contaminate the drugs kept in the store .

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