Skip to content


State of Karnataka and ors. Vs. T.V. Ganji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 2743 of 1982
Judge
Reported inAIR1986Kant94; ILR1985KAR3613
ActsDrugs and Cosmetics Act, 1940 - Sections 9B, 33(1)(C) and 33D and 911; Code of Civil Procedure (CPC), 1908 - Order 39, Rules 1 and 2
AppellantState of Karnataka and ors.
RespondentT.V. Ganji
Appellant AdvocateC.S. Kothavale, Govt. Pleader
Respondent AdvocateP.H. Gotkhindi, Adv. for ;B.V. Deshpande, Adv.
Excerpt:
.....the chemical examiner himself which clearly shows that the seal on the bottle tallied with the sample seal. 33b clearly says that chapter iva shall apply only to ayurvedic (including siddha) and unani drugs. the rules framed under this act clearly show as to how the manufacture should be done. they clearly say that for the manufacture of the drug, a licence is required. 12. the karnataka excise (spirituous preparations, manufacture, sales and accounts) rules 1969 clearly show that a licence is required under the said rules in respect of the spirituous preparations. it is for the plaintiff to show whether it is self-generated or otherwise, because -it 6 he that has been manufacturing it and he is the best person to know about it......asava with 16 herbs in the list produced on 13-4-1981 manufactured for sale by the plaintiff under drug licence in his possession and either at hubli in his manufactory or at his depots in any place in dharwad district. 2. the plaintiff claims to be manufacturing kumari asava no. 2 under l-2 licence issued by the excise commissioner, karnataka. according to him, the defendants have no right to search and seize his kumari asava preparations. according to him, the defendants have been harassing him by illegally and unnecessarily searching, inspecting and seizing his production known as kumari asava no. 2. 3. the plaintiff filed a suit in o.s. no, 214 of 1980 against the defendants for a permanent injunction restraining the defendants from effecting any illegal, irregular and v6xatious.....
Judgment:
ORDER

1. This is a revision by defendants- 1 to 5 against the order dated 29-31982 passed by the Additional Civil Judge, Dharwad, in Miscellaneous Appeal No. 8 of 1981 affirming the order dated 18-4-1981 passed by the Principal Munsiff, Dharwad, in O.S. No. 214 of 1980 allowing I.A. No. 2 and granting the injunction restraining the defendants from effecting any search or seizure of Kumari Asava with 16 herbs in the list produced on 13-4-1981 manufactured for sale by the plaintiff under Drug licence in his possession and either at Hubli in his manufactory or at his depots in any place in Dharwad District.

2. The plaintiff claims to be manufacturing Kumari Asava No. 2 under L-2 licence issued by the Excise Commissioner, Karnataka. According to him, the defendants have no right to search and seize his Kumari Asava preparations. According to him, the defendants have been harassing him by illegally and unnecessarily searching, inspecting and seizing his production known as Kumari Asava No. 2.

3. The plaintiff filed a suit in O.S. No, 214 of 1980 against the defendants for a permanent injunction restraining the defendants from effecting any illegal, irregular and v6xatious search and from seizing his goods and medicines manufactured and stored by him either at Hubli or at any place it. his Depots in Dharwad District under a valid licence issued by the Excise Commissioner, Karnataka. After hearing both the sides, the Munsiff passed an order on 11-10-1980 allowing I.A. No. 2 and granting temporary injunction against the defendants pending the suit. The defendants being aggrieved by the said grant of temporary injunction, approached the Civil Judge, Dharwad, with Miscellaneous Appeal No. 20 of 1980. The Civil Judge, Dharwad, while dealing with the appeal desired that the contents of the drug known as Kumari Asava No. 2 manufactured by the plaintiff and seized by the defendants should be got chemically examined Hence he set aside the order passed by the Munsiff granting the injunction and sent back the matter to the Munsiff with the four bottles of Kumari Asava manufactured by the plaintiff and seized by the defendants, for being sent to the Chemical Examiner for chemical examination and then dispose of I.A. No. 2 on merits. Thereafter the Munsiff sent one of the four bottles to the Chemical Examiner, Dharwad, through the Commissioner and obtained the certificate. After hearing both the sides, the Munsiff again passed an order dated 18-4-1981 granting the injunction as prayed for by the plaintiff The defendants feeling aggrieved by the grant of, injunction, approached the Civil Judge with an appeal M.A. No. 8 of 1981. The Civil Judge dismissed the appeal and confirmed the order passed by the Munsiff granting the injunction. Hence the revision by the defendants.

4. It is undisputed that one of the four bottles seized from the plaintiff by the defendants was sent to the Chemical Examiner, Dharwad. A copy of the Chemical Examiner's report has been produced before me by the Government Advocate. It reads as: -

'Reference Letter No. Nil dated 26-3-1981.

I write to acknowledge the receipt of the articles referred to in the above and to state that the seals corresponded with the sample sent and the description tallied.

2. The under mentioned articles were duly examined with the following result:-

O.S. No. 214/80

One sealed bottle said to contain liquid.

Result -- The presence of alcohol was detected.

Alcohol content : 4.37% V/V at 600 F presence of chloral hydrate : detected.

Opinion : - The sample is unfit for human consumption as per the Excise Act. I cannot say whether the contents in the bottle are self generated or otherwise.

Sd/- C, 1. Kundur,

Regional Assistant Chemical Examiner to the Govt. of

Karnataka, Dharwad Region.

27/3/81.'

5. The learned, counsel Shri Gotkhindi for the plaintiff urged that the bottle that had been sent to the Chemical Examiner was not sealed, and that the contents of that bottle might have been tampered with and that therefore the opinion of the Chemical Examiner was not of much consequence in the matter. His argument is rebutted by the report of the Chemical Examiner himself which clearly shows that the seal on the bottle tallied with the sample seal. Therefore the argument advanced by the learned counsel Shri Gotkhindi for the plaintiff in this connection is rejected.

6. Hydrate in Chemistry means a compound of water with another compound or an element. Chloral hydrate means a compound of hypnotic and anesthetic preparation. If the liquid contents of the so called Kumari Asava were to hypnotise the people that consume it, it would be a dangerous product which would be openly available in the market. Kumari Asava is a health tonic in Ayurved. It is not meant to hypnotise people. It is not meant to administer anesthesia to the consumers. Therefore it such a product is allowed to be sold openly in the market, it would be a health hazard. It will have to be considered as a preparation which is quite injurious to the health.

7. It is a matter of common knowledge that in the case of Asava, alcohol is self-generated. But chloral hydrate is not self-generated. It would be a compound or mixture of water with some other compound or element. Therefore chloral element will have to be mixed with the liquid compound. Then alone it would be chloral hydrate.

8. Chapter IVA of the Drugs and Cosmetics Act contains sections which are of importance in the matter. S. 33B clearly says that Chapter IVA shall apply only to Ayurvedic (including Siddha) and Unani Drugs. S. 33D of the said Act reads as : -

'33D. Prohibition of manufacture for sale of Ayurvedic (including Siddlia) and Unani Drugs: -

'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, manufacture for sale any Ayurvedic (including Siddha) or Unani Drug, -

(a) except under prescribed hygienic conditions;

(b) except under the supervision of a person having the prescribed qualifications;

(c) except under and in accordance with the conditions of a licence issued for such purpose under this is Chapter;

(d) unless the raw materials used in the preparation of such drug are genuine and are properly identified;

(e) unless such drug is labeled with the true list of all the ingredients contained in it and with such other particulars as may be prescribed; and

(f) in contravention of any of the provisions of this Chapter or any rule made there under'

(underlining is mine).

Therefore S. 33D(c) requires that the manufacture of medicines shall have to be done under and in accordance with the conditions of a licence issued for such purpose under this Chapter. Therefore without a licence under the provisions of the said Act, Ayurvedic drug known as Kumari Asava cannot be manufactured at all. The plaintiff has not produced any valid licence issued under the provisions of the said Act.

9. S. 8 of the Drugs and Cosmetics Act lays down as : -

'8. 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.'

S. 9 of the said Act deals with misbranded drugs. S. 9B deals with the adulterated drugs. S. 9B reads as : -

'9B. 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 in sanitary 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;

As already stated above, the Chemical Examiner's report shows that the liquid in the bottle contains chloral hydrate which is poisonous in nature. Chloral hydrate admittedly is not an ingredient of Kumari Asava prescribed by the Ayurvedic Pharmacopoeia at all. Therefore it will have to be said that the Kumari Asava seized by the defendants from the plaintiff is an adulterated drug within the meaning of S. 9B of the Drugs and Cosmetics Act.

10. According to the plaintiff, he prepares Kumari Asava as per the pharmacopoeia known as Andhra Baishajya Ratnavali. The Ist Schedule does not speak about Andhra Baishajya Ratnavali. It speaks about Baishajya Ratnavali. Therefore it cannot be said to be a medicinal preparation manufactured as per the Ph4rmacopoeia mentioned at item No,9 of the Ist Schedule. Medicine which is not prepared as per the said Pharmacopoeia, will be a drug manufactured in contravention of the Drugs and Cosmetics Act. The Rules framed under this Act clearly show as to how the manufacture should be done. They clearly say that for the manufacture of the drug, a licence is required. As already stated above, the said provisions do require a licence for the manufacture of Kumari Asava No.2. Admittedly the licence that has been granted to the plaintiff has expired. The learned counsel Shri Gotkhindi urged that the plaintiff had preferred an appeal against the order passed by the Excise Commissioner rejecting the same and that appeal is still pending. But the very fact that the Excise Commissioner has refused to renew the licence and the very fact that no material has been let in to show that the superior appellate authority has granted even a temporary licence to the plaintiff would show that the manufacture by the plaintiff at present is without licence.

11. Even under the Medicinal and Toilet Preparations (Excise Duties) Act, a licence is required to be taken for the purpose of manufacture, storage and sale in order to enable the excise officials to search the premises, inspect them and seize them if any Rule framed under the Act and the provisions of the Act are violated. The plaintiff has not placed any material -to show that he has obtained any such licence.

12. The Karnataka Excise (Spirituous Preparations, Manufacture, Sales and Accounts) Rules 1969 clearly show that a licence is required under the said Rules in respect of the spirituous preparations. Admittedly alcohol content in the liquid seized from the plaintiff by the defendants is 4.37 per cent Volume by Volume at 60 F. If the alcohol content exceeds 2 per cent, then a licence is required under these Rules also. Admittedly he has not taken any licence under these Rules. It may be that the Chemical Examiner is not in a position to say whether the alcohol found in the liquid is self-generated. It is for the plaintiff to show whether it is self-generated or otherwise, because -it 6 he that has been manufacturing it and he is the best person to know about it. He has not placed any material to show that the alcohol to such a great degree is only self-generated one.

13. It cannot be disputed that the officials working in the Excise Department have been clothed with certain responsibilities under the Excise Act and the Excise Rules and the Drugs and Cosmetics Act and the Karnataka Excise (Spirituous Preparations, Manufacture, Sales and Accounts) Rules and other Acts to inspect the premises where the said drugs are manufactured and examine them and seize them if they are manufactured in contravention of the Rules and the licence. They have got a right to inspect the premises where the goods are stored and where such goods are sold in the market. The grant of a temporary injunction in such serious matters would enable the plaintiff to manufacture and sell such adulterated drugs under the guise of a temporary injunction granted by the courts. The courts should not grant temporary injunction in such serious matters especially where the health of the public is to be affected to a large extent. The parties cannot be allowed to manufacture or sell such drugs with the help of a temporary injunction.

14. The learned counsel Shri Kothawale submitted before me that this is not a first proceeding of the present nature. According to him, the plaintiff is in the habit of filing suits and obtaining temporary injunctions and manufacturing and selling the goods under the strength of such temporary injunctions. According to him, when the suits come up for trial or when the evidence is partially recorded the plaintiff withdraws the suits and thus he achieves the end. According to him, he withdraws suits after selling the goods manufactured by him in contravention of the Rules and the Acts. He submitted that the plaintiff filed a suit - O.S. No. 48 of 1978 and obtained a temporary injunction therein and on the strength of that temporary injunction he manufactured and sold the goods and that he withdrew the suit after the major portion of the evidence was- recorded And when the matter was posted for arguments. He placed before me numbers of other suits also. This aspect of the matter has been referred to in para 8 of the order passed by the appellate Judge also. As already stated above by me, the courts should be slow in granting temporary injunctions in matters of such serious nature. The court should bear in mind that the parties are likely to misuse the equitable relief of temporary injunction granted to them in such cases.

15. Thus the order passed by the Munsiff and, the order passed by the Civil Judge confirming the order of the Munsiff are opposed to the provisions of law and are nothing short of being capricious, perverse and unreasonable. The effect of such orders would result in causing great hazard to public health.

16. Therefore, under these circumstances, the order passed by the Munsiff granting the temporary injunction and the order passed by the Civil Judge confirming the grant of temporary injunction granted by the Munsiff are set aside. The - revision is allowed. The temporary injunction granted by the Munsiff and confirmed by the Civil Judge is vacated. I.A. No. 2 filed by the plaintiff under O.39 R.1 and 2 C.P.C. is dismissed.

17. The plaintiff should pay the costs of the revision petitioners in this revision and should bear his own in this revision.

18. Revision allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //