Introduction:
The Drugs & Cosmetics act, 1940 is the act that was made for the regulation of the manufacture, import, and distribution of drugs in India. A drug is defined as the product which is typically used in a medical device prescribed by the authorized personnel to cure a certain ailment, disease, or anomaly. The drug could also be defined as a substance or a method to which is recommended by the authorized personnel to add to the aid provided to the patient. Cosmetics on the other hand can be defined as the products used that are applied to the body for satisfaction and enjoyment. This act does not include soap as a cosmetic as it is considered a hygiene product and serves a completely different purpose.
This act ensures that the drugs and other cosmetic products which are sold in India are safe to use and contain all the ingredients that are reviewed by the government and ensure that they are safe to be used by the general public. [1]Drugs and cosmetics that are being sold in the country have to be up to the standards that are set by the government.
The act also defines how the products must be stored by the retailers or other concerned parties as to the proper storage, distribution, and packaging would ensure that the drugs and cosmetics are in a usable state before reaching the customers and do not pose any risk of harming or causing any injury. The act classifies drugs and cosmetics into different categories.
The act has gone through various amendments over the years and has tried to make the activities relevant to the changing environment. The 1964 amendment to the act has brought the Ayurveda and Unani drugs under the ambit of this act and thus further enhancing the powers of the act.
Powers of the Inspector
The act specifies the powers of the inspector. Section 22 of the act defines the powers that are granted to inspectors. Inspectors in the given act are different from the police officers as drug inspectors are specifically appointed for the investigation in matters related to drugs and cosmetics and contrast, the police officers are general officers who are appointed by the state to maintain peace and stability in the society, they can register an FIR for a cognizable offense but cannot file an FIR for the offenses committed under Chapter IV of the act. Similarly, to conduct an investigation, a police officer can conduct it under cognizable offense as he has the power in the normal course to take action but cannot do it under chapter IV of the provided act as special power is granted to the Drug inspectors to conduct the same. He can collect evidence against the accused but not for drug-related offenses. To understand the powers that are granted to the Inspectors in this act, we must understand the difference between the inspectors and the police officers. The inspector’s powers are limited to the extent of the Drugs and cosmetics-related issues and they have complete power over this. They are empowered to lodge an FIR, conduct investigation, and make arrests under this act. The inspectors are specifically drug inspectors who are empowered by the supreme court’s judgment in the case of Union of India vs. Ashok Kumar Sharma[2].
This is an important case as it defines the powers that are granted to the inspectors. In this case, an online complaint was made against the Sharda Narayan Clinic and Pharmacy by a person. After The Commissioner (Food Protection and Drugs) received the information, he directed an inquiry against the pharmacy. He appointed the Special Drugs Inspector for the matter, Mr. Mau, U.P. along with two other officers to inspect the premises. While conducting the inspection they requested the respondent in the case to bring the required documents which he was unable to produce as he had not obtained the appropriate license to operate the pharmacy. An FIR was lodged against him by the investigating officer under section 18(a)(i) and section 27 of the Drugs and cosmetics act, 1940. The respondent petitioned to stop the FIR against him and subsequently his arrest. He requested the court to take immediate action.
In the present case, the high court was of the view that the FIR filed in the case had been made under section 154 of CrPC[3]. Since the power to file FIR has been obtained under the provisions mentioned in CrPC then such power derived under the CrPC must be applicable completely and the police officer must be competent to lodge FIR against the accused. But in this case, the Drug Inspector lodged the FIR, and his power is not defined in any provision of CrPC. Thus, the stand taken by the high court was to allow the writ petition and quash the FIR against the respondent.
However, the Supreme court was of a different view than the high court as the offenses that are committed under Chapter IV of the drugs and cosmetics act, 1940 is considered as offenses that have the same impact as a cognizable offense. The powers that are granted to the Drug inspector that is appointed to the case and is responsible for the same must be competent to investigate any complaint, lodge FIR, and even arrest the accused person in the same. The police have a limited role and are confined to providing assistance to the inspector and helping in arresting the parties involved in case any resistance is faced by the inspector. The inspector must keep his superiors in the loop and they must be updated regarding the situation and must also follow the procedures that are laid down in the statute for a lawful arrest.
Analysis
This judgment is appreciated around the industry and many experts have expressed their appreciation towards the same. The drug and cosmetics act is special legislation that is made specifically for the protection of society from harmful drugs and the people dealing with such drugs. [4]This was much-needed legislation as special expertise was required to differentiate between the authentic product and the generic product. The judgment helped in making the legislature clear and effective. The arrest that is made in the act is knowledge-based as superior technical knowledge is required to differentiate between the adulterated and non-adulterated products and scientific analysis of the samples collected is to be tested and ensured that the evidence collected must be beyond a reasonable doubt. This statute reduces the burden on the police and specified force is present to handle the situation professionally. The analysis that is done by the inspectors and further investigation which is done by them would be much more scientific and they will be able to clearly express their findings in the court and thus would help in better and effective judgment by the courts.
But certain points are still unclear in the legislation as the training of the drug inspectors is to be done professionally and there are no provisions mentioned in the act regarding the training of the inspectors. Proper infrastructure is to be provided to the inspectors as it is a whole new department with its powers and responsibilities. They have the power to arrest but the arrested person is to be kept in lock-up. The lock-up is to be decided by the investigating officer as there is no separate infrastructure present to lock up the accused. The court needs to ensure that the arrest made in this act is according to the proper procedure that is laid down in the statute. The hierarchy followed by the inspectors along with the police officers when the accused is in custody must be determined as the culprit is arrested by the concerned authority but he is kept in the police lockup and thus police would exercise some authority over him.
Conclusion
The legislation was introduced to make the process of identifying the drugs-related crimes smooth and effective and help society in coping up with the increasing crime. The legislation has been effective to a large extent as it has reduced the burden on the police and effective measures have been taken by the inspectors to make the legislature effective. The government just needs to take into consideration certain little aspects of the law that are neglected and fill all the loopholes that are present. The powers granted to the police officers in the act are not excessive as they require certain powers to function properly. This means that the power to lodge FIR, make an arrest, and conduct an investigation on the matter, all can be exercised by the inspectors and the police have no authority to stop them from doing so. To properly exercise their powers, the inspectors are to be provided with infrastructure and training, and with the help of this support, they will be able to properly execute their duties and make an impact on society.
References:
[1] Bureau Reporter, Cops can’t register FIRs under Drugs and Cosmetics Act, says Supreme Court, Pharmabiz (2020), http://www.pharmabiz.com/NewsDetails.aspx?aid=130750&sid=2 (Last Visited on Oct 24, 2021)
[2] Union of India vs. Ashok Kumar Sharma (S.L.P.(CRIMINAL)No.4178 of 2019)
[3] The Code of Criminal Procedure, 1973, Section 154
[4] Usha Sharma, Only drug inspectors can probe, file FIRs for certain cognizable offences under D&C Act 1940: SC, Express pharma (Sept 1, 2020), https://www.expresspharma.in/only-drug-inspectors-can-probe-file-firs-for-certain-cognizable-offences-under-dc-act-1940-sc/ (Last Visited on Oct 25, 2021)
0 Comments