G.B. Pattnaik, J.
1. This is an application directed against the order of the learned Magistrate dated 10. 5.1984 framing charge against the petitioner under Section 7 of the Essential Commodities Act for violation of Clause 21 of the Drugs (Prices Control) Order, 1979.
2. The allegation is that the petitioner had sold a physician's sample of Livergen Syrup. Originally the petitioner had been charged for violation of the provisions of Rules 65(17) and (18) of the Drugs & Cosmetics Rules, 1945, but as the said charge was not sustainable, the prosecution made a prayer to amend the charge. Before the Magistrate, it was contended on behalf of the accused that there has been no violation of Clause 21 of the Drugs (Prices Control) Order, 1979. The same having been rejected and the charge having been framed, the petitioner has come up with this application.
3. Mr. Mund appearing for the petitioner contends that Clause 21 of the Drugs (Prices Control). Order, 1979, prohibits the sale of any formulation specified in any of the categories in the Third Schedule at a price exceeding the price specified in the current price list or the price indicated on the label of the container or pack thereof. Though the prosecution has been able prima fade to establish that the price at which the medicine in question, was sold is higher than the price indicated if the label, the prosecution has utterly failed even prima facie to establish that the formulation is one specified in any of the categories in the. Third Schedule. The Third Schedule contains three categories of formulations, namely, Category-I consisting of 15 itmes, Category-II consisting of 20 itmes and Category-III consisting of 38 items. 'Formulation' has been defined in Clause 2(f) to mean :
'...a medicine processed out of, or containing one or more bulk drugs or drung, with, or without the use of any pharmaceutical aids for internal or external use for, or in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals, but shall not include :
(i) any bona fide Ayurvedic (including Sidha) or Unani (Tibb) systems of medicine.
(ii) any medicine included in the Homoeopathic system of medicine ;
(iii) any substance to which the provisions of the Drugs and Cosmetics Act, 1940 (23 of 1940) do not apply.'
'Bulk drug' has been defined in Clause 2(a) to mean,
'...any substance including pharmaceutical, chemical, biological or plant product or medicinal gas conforming to pharmacopoeal or other standards accepted under the Drugs and Cosmetics Act, (1940 23 of 1940), which is used as such, or as an ingredient in any formulations.'
The learned Magistrate looking at the label has come to a finding that the formulation in question is made out of bulk drugs like plant products, chemical products. But even it is so as found by the learned Magistrate, unless the drug in question conforms to any of the formulations indicated in any of the categories mentioned in the Third Schedule, the provisions of Clause 21 will not be attracted. Since there is no prima facie material before the Magistrate to indicate that the formulation in question belongs to any of the categories specified in the Third- Schedule, the petitioner cannot be charged for violation of Clause 21 of the Drugs Prices Control Order, 1976 Accordingly, I find ample force in the contention of the learned counsel for the petitioner. I, therefore, quash the order dated 10.5. 1984 framing charge against the petitioner.
This Criminal Miscellaneous Case is accordingly allowed.