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23. Procedure of Inspectors.
� (1) Where an Inspector takes any
sample of a drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27-7-1964)) or
cosmetic] under this Chapter, he shall tender the fair price thereof and may
require a written acknowledgement therefore.
(2) Where the price tendered
under sub-section (1) is refused, or where the Inspector seizes the stock of any
drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27-7-1964) or cosmetic]
under clause (c) of section 22, he shall tender a receipt therefore in the
prescribed form.
(3) Where an Inspector takes
a sample of a drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27-7-1964) 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 willfully 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 [(Note: Ins. by Act 21 of 1962, sec.15
(w.e.f. 27-7-1964) or cosmetic] is being manufactured, it shall be necessary to
divide the sample into three portions only :
Provided further that where the
drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27-7-1964) or cosmetic] is
made up in containers of small volume, instead of dividing a sample as
aforesaid, the Inspector may, and if the drug [(Note: Ins. by Act 21 of 1962,
sec.15 (w.e.f. 27-7-1964)) 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 suitably 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 Analyst 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 [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27-7-1964)) or
cosmetic]; and
[(iii) (Note: Subs. by Act 13
of 1964, sec.16, for clause (iii) (w.e.f. 15-9-1964)) 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 [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f.
27-7-1964)) or cosmetic] contravenes any of the provisions of section 18 and, if
it is ascertained that the drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f.
27-7-1964)) or cosmetic] does not so contravene, forthwith revoke the order
passed under the said clause or, as the case may be, taken such action as may be
necessary for the return of the stock-seized ;
(b) If he seizes the stock of
the drug [(Note: Ins. by Act 21 of 1962, sec.15 (w.e.f. 27-7-1964)) or
cosmetic], he shall as soon as may be inform [(Note: Subs. by Act 68 of 1982,
sec.20, for "a Magistrate" (w.e.f. 1-2-1983)) 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 [(Note: Ins. by Act 21 of
1962, sec.15 (w.e.f. 27-7-1964)) or cosmetic], he shall, on being satisfied that
the defect has been so remedied, forthwith revoke his order under the said
clause.
[(6) (Note: Ins. by Act 35 of
1960, sec.6 (w.e.f. 16-3-1961)) Where an Inspector seizes any record, register,
document or any other material object under clause (cc) of sub-section (1) of
section 22, he shall, as soon as may be, inform [(Note: Subs. by Act 68 of 1982,
sec.20, for "a Magistrate" (w.e.f. 1-2-1983)) a Judicial Magistrate] and take
his orders as to the custody thereof.]
COMMENTS
(i) As required by sub-section
(4) (iii) of section 23 read with section 18A, it is the duty of the Drugs
Inspector to supply to the person whose particulars are disclosed under section
18A the third portion of the sample; Agarwal Medical and General Stores v. State
of M.P. AIR 1973 MP 255.
(ii) The validity of the first
proviso to section 23(3) cannot be challenged on the ground that it offends
equal protection of law guaranteed by Article 14 of the Constitution as there is
no purpose in having an extra portion in cases where the drug is seized from the
manufacturer himself; T.Babulal v.Drugs Inspector, Madras, 1969 Cri LJ 699:
(1970) 1 MLJ 124.
(iii) When the procedure
mentioned in section 23 is not followed in a case, the report of the Government
Analyst cannot be treated as conclusive evidence; Dharam Deo Gupta v.State, AIR
1958 All 865: 1958 Cri LJ 1453.
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