# Virendra Kumar Goel v. State of U.P

- **Citation:** (2025) 11 ILRA 486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-28
- **Case number:** Criminal Appeal No. 502 of 1984
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-goel-v-state-of-u-p-52874
- **Pages:** 10

## Headnote

A.G.A.

Issue for consideration
Matter
pertains
to
legality
of
impugned
judgment of conviction for the offence under
Section 27(a)(ii) and 27(b) of the Drugs and
Cosmetics Act, 1940.

Headnotes
Drugs and Cosmetics Act,1940- Appellant
-proprietor of the Arogya Store -used to store
and sell medicines to the general public -on
the prescriptions of the registered medical
practitioners-
the
appellant
has
fully
discharged its burden as mandated u/s 19(A)
and Section 19(3) of the Drugs and Cosmetics
Act-disclosed the complete source of the
medicine- since the complete chain of the
purchase of medicines by the appellant has
been established-it can be safely concluded
that the aforesaid medicines, of which the
sample was taken - were the medicines
produced by the Nectarine Pharmacy- for any
defect, found in the said medicines-the
appellant herein cannot be held to be
responsible-only the manufacturer who is
responsible-impugned judgment set asied.
Appeal allowed. (E-9)

Case Law Cited
Nil

List of Acts
Drugs and Cosmetics Act,1940

List of Keywords
Discharged its burden as mandated u/s 19(A)
and Section 19(3) of the Drugs and Cosmetics
Act

Appearances of parties
Counsel for Appellant(s) : Hari Keshav, Sandeep
Kumar Singh, Vagish Kumar Misra Counsel for
Respondent(s) : A.G.A.

## Text

486 INDIAN LAW REPORTS ALLAHABAD SERIES
 (iv)
The
Additional
Chief
Secretary (Home), Secretariat, Government
of U.P., Lucknow is directed to issue a
direction to the officials concerned for
ensuring the establishment of electronic
verification of sureties in the district courts'
compound itself in coordination with the
District Judge concerned.

 (v) The Director General (Prison)
is also directed to issue necessary direction
to all prison authorities to release a jail
inmate immediately after receiving the
electronic release order through BOMS
instead of collecting of the release orders
from the Courts and then release the jail
inmates in the evening.

20. Registrar (Compliance) is
directed to send a copy of this order to
Chief Secretary, U.P., Additional Chief
Secretary (Home), Government of U.P.,
Lucknow, Director General (Prison), U.P.,
Deputy Director General, NIC (New
Delhi), CPC, High Court, Allahabad,
Registrar (J) (Criminal), Registrar Criminal
(D),
Stamp
Reporter,
High
Court,
Allahabad and its Bench at Lucknow, for
necessary compliance.
----------
(2025) 11 ILRA 486
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2025

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Appeal No. 502 of 1984

Virendra Kumar Goel ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Hari Keshav, Sandeep Kumar Singh, Vagish
Kumar Misra

Counsel for the Respondent:
A.G.A.

Issue for consideration
Matter
pertains
to
legality
of
impugned
judgment of conviction for the offence under
Section 27(a)(ii) and 27(b) of the Drugs and
Cosmetics Act, 1940.

Headnotes
Drugs and Cosmetics Act,1940- Appellant
-proprietor of the Arogya Store -used to store
and sell medicines to the general public -on
the prescriptions of the registered medical
practitioners-
the
appellant
has
fully
discharged its burden as mandated u/s 19(A)
and Section 19(3) of the Drugs and Cosmetics
Act-disclosed the complete source of the
medicine- since the complete chain of the
purchase of medicines by the appellant has
been established-it can be safely concluded
that the aforesaid medicines, of which the
sample was taken - were the medicines
produced by the Nectarine Pharmacy- for any
defect, found in the said medicines-the
appellant herein cannot be held to be
responsible-only the manufacturer who is
responsible-impugned judgment set asied.
Appeal allowed. (E-9)

Case Law Cited
Nil

List of Acts
Drugs and Cosmetics Act,1940

List of Keywords
Discharged its burden as mandated u/s 19(A)
and Section 19(3) of the Drugs and Cosmetics
Act

Appearances of parties
Counsel for Appellant(s) : Hari Keshav, Sandeep
Kumar Singh, Vagish Kumar Misra Counsel for
Respondent(s) : A.G.A.

(Delivered by Hon'ble Anish Kumar
Gupta, J.)
11 All. Virendra Kumar Goel Vs. State of U.P.
487

1. Heard Shri Hari Keshav, learned
counsel for the appellant and Shri Pankaj
Srivastava, learned AGA alongwith Smt.
Harshita Rani, learned AGA for the State.

2. The instant criminal appeal has been
filed by the appellant herein being
aggrieved by judgement and order dated
09.02.1984, whereby the appellant herein
was convicted for the offence under
Section 27(a)(ii) and 27(b) of the Drugs
and Cosmetics Act, 1940 and he was
sentenced to undergo three years rigorous
imprisonment and fine of Rs. 6,000/-. In
default of payment of fine he was directed
to undergo three years further rigorous
imprisonment.

3. The brief facts of the case are that
the appellant was the proprietor of the
Arogya Store and used to store and sell
medicines to the general public on the
prescriptions of the registered medical
practitioners. On 03.01.1976, the Drug
Inspector, Pradeep Kumar Rastogi (PW1)
along with another Drug Inspector, D.K.
Jaju (PW3), have got the information that
the appellant herein was trading in spurious
drugs in his shop. The above two Drug
Inspectors visited the medical store of the
appellant herein on 03.01.1976. They found
the appellant was sitting in his aforesaid
medical shop. Drug Inspector, Pradeep
Kumar
Rastogi
(PW1)
disclosed
his
identity and the purpose of his visit to the
medical store of the appellant. According to
the prosecution, the two Drug Inspectors
allegedly
gave
their
searches
and
summoned the witnesses. However, none
of the witnesses turned up in the instant
case.

4. From the medical store of the
appellant, the Drug Inspector P.K. Rastogi
(PW1) had obtained the sample of four
medicines and prepared the memo for the
same, wherein he has also obtained the
signature of the appellant herein and one
part of the sample of each of the medicines
taken was given to the accused, which was
allegedly acknowledged by the appellant in
Form No. 17 with regard to the receipt of
the sample. Form No. 17 was also signed
by Drug Inspector Jaju (PW3).

5. For the purchase of aforesaid
medicines, the bill was allegedly issued by
the appellant herein for a total sum of Rs.
66.15. According to the prosecution,
though the amount of the bill was not
tendered on the spot by the Drug Inspector,
however, later on a draft of Rs.66.15 dated
09.01.1976 was sent to the appellant by
post on 12.01.1976. However, the receipt
of the said demand draft has been disputed
by the appellant. According to him, he has
never received the said demand draft nor
the same was encashed by him.

6. In the aforesaid samples prepared
by the Drug Inspector, a sample of 40 white
circular tablets, the word chloroquine 250
mg was engraved on one side and Scortid
on the other side. Batch No. T500192 of
Nectarine Company, was hand written on
the bottle. The aforesaid sample was sent
by the Drug Inspector to the Central Drug
Laboratory, Calcutta on 07.01.1976 for
analysis. The Central Drug Laboratory,
Calcutta gave its report to the aforesaid
centre on 14.06.1976, stating therein the
average weight of each tablet is 0.3794
grams. On analysis it didn't give positive
test for chloroquine phosphate. The opinion
of the analyst is that the sample does not
contain chloroquine phosphate. The item is
spurious preparation and is considered
misbranded
under
Section
17F
and
adulterated under Section 17(B)(e)(ii) of
the Drugs and Cosmetics Act.
488 INDIAN LAW REPORTS ALLAHABAD SERIES

7. As per the prosecution, the other
three medicines of which the sample were
taken from the medical stores, were also
sent for the analysis and were found to be
confirming to the standard quality by
Central
Drugs
Laboratory,
Calcutta.
However, only with regard to the 40
chloroquine tablets, of which allegedly the
sample was taken from the shop of the
appellant and were sent for analysis to
Central Drugs Laboratory, Calcutta, the
same were found to be substandard.
Reports of the Central Drug Laboratory,
Calcutta
were
communicated
to
the
appellant
herein
on
26.06.1976
in
compliance with Section 25(2) and Section
23(4)(iii) of Drugs and Cosmetics Act
1940.

8. In compliance of Section 19(3) of
the Drugs and Cosmetics Act, the appellant
herein has communicated the said Drug
Inspector that the aforesaid substandard
medicines i.e., the chloroquine tablets of
250 mg were purchased by him from M/s
Bhuvan Pharma. The proprietor of M/s
Bhuvan
Pharma
admitted
in
his
communication dated 13.06.1977 that the
aforesaid
chloroquine
tablets
of
the
aforesaid batch number were purchased by
him from the manufacturer i.e., Nectarine
Pharmacy, Faridabad. In two bottles of 500
tablets each, out of the aforesaid two
bottles of 500, one bottle of 500 tablets was
sold by him to Dr. B.C. Sharma on
14.10.1975. 200 tablets of the same were
sold
to
Arogya
Medical
Store
on
31.10.1975 and one bottle of 300 tablets
were again sold to Dr. B.C. Sharma on
06.11.1975.

9. The manufacturer of the aforesaid
medicines i.e., Nectarine Pharmacy, has
also communicated Drug Inspector vide
letter dated 17.01.1976 that the aforesaid
batch of medicines was manufactured by
Nectarine Pharmacy. In the quantity of 2
lakh tablets, the actual quantity of the
medicines were 390 bottles into 500 tablets.
This batch was packed in plastic bottles,
each having 500 tablets and the batch was
not packed in any other packing. According
to Nectarine Pharmacy, the quality of the
said batch of medicines were tested and
were found to be standard quality. The
Drug Inspector has also sealed 118 tablets
of the aforesaid batch from the Nectarine
Pharmacy, which were similarly embossed
on one side with chloroquine and Scortid
on the other side, which were similar to
chloroquine tablets seized from the medical
store of the appellant herein.

10. It is not in dispute that in the
instant appeal the appellants herein as well
as the Bhuvan Pharama, from where the
appellant had purchased the aforesaid
medicines for his medical store, both were
having valid licenses on the date when
samples were taken from the medical store
of the appellant.

11. The Nectarine Pharmacy had also
admitted in its communication dated
23.11.1976 that two bottles of 500 tablets
each of chloroquine phosphate IP Batch
No. T500192 were supplied to M/s Bhuvan
Pharma. After completing the investigation,
the said Drug Inspector filed the complaint
case before the Chief Judicial Magistrate,
Meerut against the appellant as well as
Dineshwar Prasad Sharma, the proprietor
of Bhuvan Pharma. However, in the
complaint, the manufacture of the aforesaid
medicines was not made a party.

12.
According
to
the
prosecution/complainant,
the
Nectarine
Pharmacy had informed to the Drug
Inspector that the quality of the medicines
11 All. Virendra Kumar Goel Vs. State of U.P.
489
were checked by the Nectarine Company
prior to its sale and according to it, the
weight
of
each
of
the
tablet
was
approximately 0.29916 grams, and the
medicines were claimed to be containing
the Chloroquine Phosphate of 250 mg per
tablet whereas, as per the analyst report
received from the Drugs Laboratory, the
weight of each tablet is 0.3794 grams. On
the basis of the aforesaid internal analysis
report
submitted
by
the
Nectarine
Pharmacy, the complainant has concluded
in its complaint that the sample collected
by the Drug Inspector is not the product of
Nectarine Pharmacy, and thus he has
exonerated the manufacturer of the said
medicines in the instant complaint.

13. After the aforesaid complaint was
filed, on the basis of the material made
available to the court, vide order dated
29.11.1979, after hearing the counsel for
the parties, the trial court exonerated the
accused no. 2, Dineshwar Prasad Sharma,
who is the proprietor of the M/s Bhuvan
Pharma, from whom the appellant herein
has purchased the aforesaid medicines.
However, the trial court proceeded to frame
the following charges against the appellant
herein:-

"Firstly,
that
you
being
the
proprietor of M/s Arogya Medical store on
3.1.1976 stocked and exhibited for sale the
drug 160 chloroquin Tablets 250 Mg. at your
shop Arogya Medical store, 90/2 Chhipi Tank,
Begum Bridge Road, Meerut, which was not of
standard quality, and hereby committed an
offence punishable under section 28(b)/27(b)
of the Drugs and cosmetics Act, 1940 as
amended by U.P. Act 47 of 1975 and within
the cognizance of this court; and

secondly, that you being the
proprietor of M/s Arogya Medical store on
3.1.1976 stocked and exhibited for sale the
drugs Chloroquin 160 tablets 250 Mg. At
your shop Arogya Medical Store, 90/2
Chhipi Tank, Begum Bridge Road, Meerut
which was misbranded and adulterated and
thereby committed an offence punishable
u/s 27(a)(i) of the Drugs and cosmetics Act,
1940 as amended by U.P. Act 47 of 1975
and within the cognizance of this court."

14. Statement of witnesses were
recorded and in support of its case, the
prosecution
examined
Drug
Inspector
Pradeep Kumar Rastogi as PW1, Drug
Inspector Sri Surendra Singh Baga, who is
the Chief Chemist of Nectarine Pharmacy
as PW2, and Sri D.K. Jaju, another Drug
Inspector, as PW3.

15. After recording of the prosecution
evidence, the statement of the appellant
herein was recorded under Section 313
Cr.P.C., in which the appellant herein has
admitted that the alleged medicines were
seized from his medical store. The
aforesaid medicines were purchased by him
in loose quantity of 200 tablets from M/s
Bhuvan Pharma, who is a licensed dealer
and the label on the bottle was affixed by
the dealer from where he has purchased the
aforesaid medicines.

16. With regard to the question of
preparation of sample of the aforesaid
medicines, the appellant has categorically
contedted that the samples were not
prepared in his presence. He was alone in
the
shop
when
the
inspectors
had
conducted the inspection and the another
inspector has taken the medicines outside,
and thereafter the samples were prepared
behind him. With regard to the sample sent
to the Central Drug Analyst, he has denied
the same as he is not aware about the same.
The appellant has further stated that he has
490 INDIAN LAW REPORTS ALLAHABAD SERIES
been denied an opportunity of getting his
samples examined from the analyst. He is
not aware whether the samples were the
same which was taken from his shop. He
further stated that since the medicines were
sealed in bottles of other medicines, what
reaction would have taken place, he is not
aware. It is further stated by him that the
sample of medicines, which were taken
from the Nectarine Pharmacy by the Drug
Inspector, has not been put to analysis nor
any analysis was got done of the medicines
seized and sealed from Nectarine Pharmacy
of the same batch. He has not been given
any opportunity to get his sample analyzed
from the Central Drug Laboratory, and
after some time of the aforesaid incident,
he had closed his medical store.

17. In support of his defense, the
appellant has also examined DW1, Dr.
Jagdish Prasad and DW2, Dr. A.K. Rastogi,
both of them were lecturers in the
Chemistry Department, in Meerut College,
Meerut. The appellant has also examined
himself as DW3.

18. In his deposition, the appellant has
stated that the aforesaid Drug Inspectors
had dictated him to follow their instruction
otherwise he will be arrested under MISA.
Drug Inspector P.K. Rastogi sent the other
Drug Inspector out of the shop, and
subsequent thereto, when he came back, he
has not given any search, and he cannot say
what he has brought along with him. While
preparing the sample of the Chloroquine
tablets, the other inspector has taken him to
the other side of the shop, where they could
go only through a small door. Therefore,
what proceedings were conducted in that
other portion of the shop, could not be seen
by him. When the samples were prepared
and how it was prepared, is not known to
him. The bottles in which the samples were
filled were not given by him to the
inspector, rather the said bottles were
brought by the said inspectors from their
own. The label on the bottle of Chloroquine
tablets was pasted by the proprietor of M/s
Bhuvan Pharma at the time when he has
purchased the aforesaid tablets from M/s
Bhuvan Pharma. He has also proved the
bill regarding purchase of the aforesaid
Chloroquine tablets from M/s Bhuvan
Pharma. The original bill has been
produced by the appellant. He has also
stated that the rates of the medicines on the
bill of the medicine taken by the Drug
Inspector was written by him as dictated by
the Drug Inspector, and he has got the
reduced rate written on the bill as the rates
were written as dictated by them because
they had threatened him. Since, he was got
coerced by the inspectors, therefore, he
could not question them why they are
getting the under-rates of the medicines on
the bill.

19. On the basis of the aforesaid
evidence led by the prosecution as well as
the defense, the trial court has concluded
the trial and convicted the appellant herein
for the offense under Section 27(a)(i) and
27(b) of the Drugs and Cosmetics Act, as
amended by UP Act No. 47 of 1975 and
sentenced him to three years rigorous
imprisonment for the offense under Section
27 of the Drugs and Cosmetics Act and
sentenced him to three years rigorous
imprisonment and a fine of Rs. 6,000/-. In
default of payment of fine, he would have
to undergo further three years rigorous
imprisonment. Being aggrieved by the
aforesaid judgment and order, the appellant
herein has filed the instant criminal appeal,
which was admitted on 20.02.1984, and the
appellant herein was released on bail and
the realization of the fine was also stayed
by this Court.
11 All. Virendra Kumar Goel Vs. State of U.P.
491

20. Learned counsel for the appellant
submits that it is not in dispute in the
instant case that the appellant herein was
having a valid license with regard to sale
and purchase of the medicines. It is also not
in dispute that the aforesaid quantity of 200
chloroquine tablets were purchased by him
from M/s Bhuvan Pharma, who was also a
licensed dealer. The said tablets were
purchased by him in a loose quantity of 200
tablets, as the pack of the tablets was of
500 tablets in a bottle. It is also not in
dispute that the aforesaid medicines were
purchased by the said Bhuvan Pharma from
the Nectarine Pharmacy, who is the
manufacturer of those medicines. Thus, the
appellant herein has completely discharged
its burden as required under Section 19(3)
of the Drugs and Cosmetics Act. The
complete chain of purchase of medicines
from the manufacturer i.e., Nectarine
Pharmacy by the M/s Bhuvan Pharma, and
from M/s Bhuvan Pharma by the appellant,
is complete. Thus, if the medicines are
found to be of substandard quality, it is
only the manufacturer who is responsible
for the production of such substandard
medicines. Being a dealer in the medicines,
it was the duty of the appellant herein to
purchase the same from a reliable source
and when any sample is taken and found to
be of substandard quality, it was his duty to
disclose the source from where it was
purchased. The aforesaid burden has been
categorically discharged by the appellant
herein. Thus, if there is any liability of
production of substandard quality of
medicines, the appellant herein cannot be
held
responsible,
rather
it
is
the
manufacturer who is directly liable for the
same.

21. The Drug Inspectors, though
according to prosecution, has seized 118
tablets from the manufacturer of the same
batch, however, the same has never been
sent to the Central Drug Laboratory for
analysis. In regard to the same, only the
report of the manufacturer has been relied
upon by the Drug Inspectors without
sending the same to the analyst. Unless the
sample which was taken from the shop of
the appellant and from the manufacturer of
the aforesaid drugs are compared by an
independent analyst, the appellant herein
cannot be held to be responsible for any
inferiority
or
substandard
quality
of
medicine as it is an admitted position in the
instant case that the appellant herein is not
the manufacturer nor he had any source of
knowledge that the medicines which he had
purchased from M/s Bhuvan Pharma,
which were produced by the Nectarine
Pharmacy were of the substandard quality.
Thus, there is no mens rea in the instant
case on the part of the appellant herein. So
far as the difference in weight as alleged by
the Nectarine Pharmacy in its report that
the weight of the tablet is 299.16 mg,
whereas the analyst has found the weight of
the tablets in the sample taken from the
appellant is 0.3794 grams i.e., 379.4 mg.
The aforesaid difference in the weight
comes due to the moisture and other
chemical reactions when the aforesaid
medicines come in contact of the air when
kept in a less quantity in a larger size of the
bottle.
The
DW1
and
DW2
have
categorically deposed in this regard that the
difference in weight is possible due to the
contact of the medicine with other
chemicals or moisture.

22. The Drug Inspector has relied
upon
the
reports
submitted
by
the
manufacturer without any analysis of the
samples taken from the manufacturer of the
same batch of the medicines. Unless the
sample taken from the manufacturer and
the sample taken from the shop of the
492 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant both are compared by the same
drug analyst, it cannot be said that the two
are the different samples and the medicines
which were taken from the shop of
appellant was not the same medicine which
was
manufactured
by
the
Nectarine
Pharmacy. Therefore, the benefit of doubt
must go to the appellant herein.

23. Learned counsel for the appellant
has further submitted that trial court has
convicted the appellant herein heavily
relying upon Section 19A of the Drugs and
Cosmetics Act as amended through UP Act
No. 47 of 1975. It is further submitted by
learned counsel for the appellant that at the
time of taking samples he was badly
threatened by the Drug Inspector as it was
the time of national emergency they had
threatened him to be arrested under
Maintenance of Internal Security Act, 1971
(in short, 'MISA'). Further, when the report
of
the
Central
Drug
Analyst
was
communicated to the appellant herein, he
was in fact arrested under MISA and he
had sought some time from the drug
inspector to get the sample, which was
given to the appellant herein, be tested after
the release of the appellant herein from
detention under MISA. However, no such
opportunity was granted to the appellant
herein and straightway the complaint was
lodged and in the said complaint the
manufacturer of the aforesaid medicines
has not been deliberately made party for
reasons best known to the said Drug
Inspectors.

24. Learned counsel for the appellant
further submits that so far as recovery and
seizure of the medicines is concerned, the
same is wholly doubtful as there is no
independent witness in the instant case with
regard to the seizure, preparation of
samples and both the Drug Inspectors had
acted in a wholly biased manner against the
appellant herein. Thus, learned counsel for
the appellant submits that the appellant
herein is entitled for acquittal in said case.

25. Per contra, learned A.G.A. submits
that in the instant case the appellant herein
has not disputed that the samples were
taken from his shop by the Drug Inspectors
(PW1 and PW3) and it is also not in dispute
that the same was got analyzed by the
Central Drug Laboratory, Calcutta and it
was found to be of substandard quality.
Thus, prime facie case is made out against
the appellant herein and in view of the
provisions of Section 19A of the Drugs and
Cosmetics Act as amended in UP, the
burden to prove that the appellant is not
responsible for the substandard quality of
the medicine is on the appellant herein,
which the appellant has not discharged in
the instant case. Therefore, the trial court
has rightly convicted the appellant herein.
Thus, learned AGA for the State submits
that no interference is called for in the
impugned judgment and order passed by
trial court. The appeal is liable to be
dismissed.

26. Having heard the rival submissions
so made by learned counsel for the parties,
this Court has carefully gone through the
record of the case. The undisputed facts in
the case are that the Drug Inspector P.K.
Rastogi along with Drug Inspector D.K.
Jaju had visited the medical store of the
appellant herein on 03.01.1976 and had
taken the four medicines from the shop of
the appellant herein for which the bill was
issued by the appellant. Though, at the time
of taking the medicines amount of the
medicines was not tendered by the Drug
Inspector to the appellant herein as it was
mandated under Section 23(1) of the Drugs
and Cosmetics Act. Though, it is stated by
11 All. Virendra Kumar Goel Vs. State of U.P.
493
the prosecution that the amount of the said
bill for purchase of the medicine was
tendered by demand draft to the appellant
herein which was duly encashed. Thus,
there
was
sufficient
compliance
of
provisions of Section 23(1) of the Drugs
and Cosmetics Act. It is also evident from
the record that though the medicines were
purchased and samples were prepared,
though there is no independent witness in
the instant case with regard to the seizure
of the medicines. The appellant herein has
disputed that the said samples were not
prepared in front of him but he was taken
aside in the back portion of the medical
store and in the meantime the samples were
prepared by the Drug Inspectors in the
bottles which were brought by them. It is
undisputed in the said case that the
appellant herein was having a valid license
for sale and purchase of the medicines and
the medicine i.e., chloroquine tablets,
which were manufactured by Nectarine
Pharmacy was purchased by the appellant
from a licensed dealer of the medicine. The
bills in this regard have also been produced
by the appellant, which have not been
disputed by M/s Bhuvan Pharma in the said
case.
Rather,
Bhuvan
Pharma
has
categorically admitted that the aforesaid
medicines were sold by it to the appellant
herein on 31.10.1975 quantity of 200
tablets and the aforesaid medicines were
purchased by M/s Bhuvan Pharma from the
Nectarine Pharmacy. Thus, the appellant
herein has categorically discharged its
burden to prove that he has purchased the
aforesaid medicines from the reliable
source which were purchased by M/s
Bhuvan Pharma from Nectarine Pharmacy.
Thus, if the quality of the said medicine
was found to be substandard by the Central
Drug Analyst Laboratory, Calcutta. The
appellant herein cannot be held to be
responsible. Rather, it is the Nectarine
Pharmacy who is the manufacturer of the
said medicines is directly responsible for
production of substandard quality of
medicines. Being a licensed dealer in
medicine, it is the duty of the appellant
herein to purchase the medicines from
reliable sources that is the reliable dealer
who is having license to sell the medicines.
There is ample evidence on record that the
appellant
herein
has
purchased
the
medicine from M/s Bhuvan Pharma, which
has not even been disputed by M/s Bhuvan
Pharma. Rather, it has been admitted by
communication
dated
13.06.1977
by
Dineshchandra
Prasad
Sharma,
the
proprietor of M/s Bhuvan Pharma that the
said medicines were sold by it to the
appellant herein, which were purchased by
it from M/s Nectarine Pharmacy.

27. The Drug Inspector P.K. Rastogi
(PW1) had also seized 118 tablets retained
by
the
manufacturer
i.e.,
Nectarine
Pharmacy,
as
control
sample
on
17.11.1976. However, the same has never
been sent to the Central Drug Laboratory,
Calcutta. No report with regard to the
analysis of the 118 tablets, which were
seized and sealed by PW1, has been
produced on record. Without examination
and analysis of the sample, which was
taken from the Nectarine Pharmacy with
regard to the same batch of medicines, it
cannot be said that the sample of medicine
which were sold by Nectarine Pharmacy to
Bhuvan Pharma and Bhuvan Pharma to the
appellant herein is not the same and the
Nectarine Pharmacy is not responsible for
manufacturing of the substandard quality of
medicines.

28. The Drug Inspector in its own
wisdom, without examining the sample
collected from the Nectarine Pharmacy,
relying upon the analyst report of the
494 INDIAN LAW REPORTS ALLAHABAD SERIES
Nectarine Pharmacy itself, has concluded
that the medicines of which the sample was
taken is not the medicine produced by
Nectarine Pharmacy, without any basis
therefor. Once the Drug Inspector had
collected the sample from Nectarine
Pharmacy of the controlled sample of the
same batch of the medicines, it was his
duty to send the same also for analysis to
the same Central Drug Laboratory, Calcutta
and only after obtaining the report with
regard to the said medicines also, he could
have concluded that the medicines, which
were seized from the shop of the appellant
herein are not the same medicine, which
were produced by the Nectarine Pharmacy.
Without such analysis, the said conclusion
drawn by the Drug Inspector P.K. Rastogi
is without any basis and cannot be relied
upon against the appellant herein. In the
instant case the source of purchase of
medicine and complete chain thereof has
been brought on record by the appellant
herein, which has not been disputed by
either the Nectarine Pharmacy and by the
Bhuvan Pharma, therefore, it cannot be
concluded that it were not the same
medicines which were produced by the
Nectarine Pharmacy.

29. Thus, in the considered opinion of
this
Court,
the
appellant
has
fully
discharged its burden as mandated under
Section 19(A) of the Drugs and Cosmetics
Act, as amended by UP amendment and
coupled with the provision of Section 19(3)
of the Drugs and Cosmetics Act, and has
disclosed the complete source of the
medicine. Thus, since the complete chain
of the purchase of medicines by the
appellant has been established, therefore, it
can be safely concluded that the aforesaid
medicines, of which the sample was taken
from the shop of the appellant herein, were
the medicines produced by the Nectarine
Pharmacy. Thus, for any defect, found in
the said medicines, the appellant herein
cannot be held to be responsible. Rather, it
is only the manufacturer who is responsible
for the same.

30. In his cross-examination, PW1- the
Drug Inspector has categorically admitted
that the sample of same batch of medicines
of 118 tablets which was collected by him
and sealed from Nectarine Pharmacy has
never been sent to the analysis, and the
same sealed packet has been produced
before the court, which has been identified
by the Drug Inspector that the same is
intact.

31. Much emphasis has been laid by
the trial court with regard to the weight of
the medicines as per the analysis report of
the Nectarine Pharmacy and the analysis
report of the Central Drug Laboratory,
Calcutta. Since merely relying upon the
analysis report of the Nectarine Pharmacy
alone, without sending the samples of the
medicines for analysis to the same drug
analyst and the actual weight of the
medicines has not been weighed by the
analyst, which were taken from Nectarine
Pharmacy
and
sealed
by
the
Drug
Inspector. Therefore, merely because there
is a difference in weight as per the Quality
Control Certificate of Analysis issued by
Nectarine Pharmacy and the actual weight
as
analyzed
by
the
Central
Drug
Laboratory, Calcutta, no adverse inference
can be drawn against the appellant herein.
Had there been analysis of both samples,
collected from the Nectarine Pharmacy as
well as that collected from the appellant
herein and the analyst would have found a
difference in both the aforesaid samples,
only then any adverse inference can be
drawn against the appellant. Thus, without
there being any conclusive proof that the
11 All. Gaura @ Gaurav Vs. State of U.P.
495
medicines
which
were
sold
by
the
Nectarine Pharmacy to Bhuwan Pharma
and from Bhuwan Pharma to appellant
herein are different medicines then the
medicines of the same batch which were
sealed by the Drug Inspector from the
Nectarine Pharmacy are different, the
appellant herein cannot be held responsible
for
any
substandard
quality
of
the
medicines seized from his shop. If there
was any substandard quality of medicine, it
was the manufacturer of the medicine who
alone is responsible for the same. The
appellant
herein
has
categorically
discharged its burden by disclosing source
of purchase of the aforesaid medicine and
both the sources of the aforesaid purchase
of medicines were valid sources having a
proper license for production and sale of
the medicines. Thus, in the considered
opinion of this Court, the impugned
judgment of the trial court is not
sustainable in the eye of law and is liable to
be set aside.

32. Accordingly, the instant appeal is
allowed. The judgment and order dated
09.02.1984 passed by the trial court is
hereby set aside. The appellant herein is
acquitted of all the charges leveled against
him. The conviction and sentence awarded
to the appellant herein is also set-aside.

33. Since, the appellant is on bail, his
bail bonds are cancelled and sureties are
discharged.

34. Let the trial court record be sent
back to the trial court to be consigned. The
seized material, if any, be disposed of in
accordance with law after ninety days of
the instant order.
---------
(2025) 11 ILRA 495
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2025

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 682 of 2020

Gaura @ Gaurav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Abhishek Mayank, Ram Ker Singh, Shashikala
Mani Tripathi

Counsel for the Respondent:
G.A.

Issue for Consideration
Matter pertains to whether the prosecution
proved beyond reasonable doubt that the
accused committed offences punishable under
S. 376(2)(i) IPC and Ss. 3/4 of the POCSO Act,
2012, and whether the trial court could lawfully
convict
and
sentence
the
accused
simultaneously under IPC and POCSO Act in
view of S. 42 of the POCSO Act.

Headnotes
Criminal Trial - Appreciation of Evidence -
Prosecutrix turning hostile - Victim (P.W.-
2) did not support prosecution version and
categorically denied occurrence - Her
testimony exonerating the accused cannot
be ignored - Evidence - Star witnesses
resiling - Informant mother (P.W.-1) and
father (P.W.-3) contradicted FIR version
and
denied
presence
at
place
of
occurrence - Father declared hostile -
Prosecution version not corroborated -
Medical
and
Forensic
Evidence
-
Corroboration absent - Medical opinion:
"No definite opinion about sexual assault
can
be
given"
-
FSL
report:
"no
spermatozoa were found on all the 07
articles" -POCSO Act, 2012 - S. 42 -
Alternate punishment - Conviction and
sentence cannot be imposed both under
IPC and POCSO Act - Punishment must be
under the statute providing punishment