Thanks to the skeletal licensing requirements in the Drugs and Cosmetics Act 1940, a licenced pharmacy cannot really violate many regulations, but even those few skeletal legal requirements are flouted regularly in India. The principal categories of prosecutions launched against pharmacies include the stocking or sale of drugs without the required licences (these include instances of moving premises without changing the address on the licence), flouting licence conditions by not having a registered pharmacist at the pharmacy during working hours, the failure to maintain necessary documentation of purchases or sales and lastly, dispensing certain drugs without a prescription. The most serious offence, however, from a public health perspective is the first category i.e., stocking or selling drugs without a licence. In a good percentage of such cases, the drugs in question are “habit forming” drugs, as addictive drugs are often described in judgments delivered by Indian courts.
In the state of Punjab, which has been in the middle of a drug addiction crisis for the last decade, drug inspectors have been very active in raiding and prosecuting establishments storing and selling drugs without having the relevant pharmacy licences under the Drugs and Cosmetics Rules 1945. Unlike many other states, the accused in these cases actually spend time in jail until the trials for these offences are concluded. Through the e-courts website, we were able to find at least 230 cases that were prosecuted by drug inspectors across Punjab over the last decade for violation of the provisions relating to stocking and selling drugs. In 124 of these cases, the drug inspectors managed to secure convictions against the persons accused of violating the law related to the stocking and selling of drugs. Most of these cases pertained to stocking and selling of drugs without the required licences. The punishments handed out by judges in these cases were surprisingly tough.
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In several cases, the accused were actually given the statutory minimum punishment of three years, along with the minimum fine of 1 lakh. In most of these cases, though the accused had either already served time in prison awaiting their trial or alternatively if they were first time offenders, the court would release them on probation meaning that they could find their way back to jail to complete the sentence if they were found breaching the terms of their probation. In some cases, judges rejected the request for probation “because of the fact that in the State of Punjab, there is hue and cry regarding the youth becoming addicts day by day and if the unauthorised persons are allowed to keep and sell the drugs, more and more persons will be becoming users and addicts of the drugs”.
The quality of prosecutions, rate of convictions, and the speed of the trials in Punjab would have made for an impressive tale except that we discovered that at least 153 of these cases were heard by wrong judges due to a poorly drafted amendment to the Drugs and Cosmetics Act 1940 in 2008. This amendment had originally sowed confusion across the country regarding the courts of competent jurisdiction that could try certain categories of offences under the Drugs and Cosmetics Act 1940. Due to the confusion, most new prosecutions as well as existing prosecutions were being filed before the Sessions Court instead of Judicial Magistrates as was the case till 2008.
In any event, this confusion was cleared by the Kerala High Court in the case of Zest Pharma v. Drug Inspector in 2013 when it clarified that only cases involving offences such as spurious and adulterated drugs would be triable before Sessions Judges, while all other offences would be triable by Judicial Magistrates as was the case earlier. Even in Punjab, some of the Sessions Judges cited the decision in Zest Pharma to transfer cases to Judicial Magistrates. Surprisingly in other districts of Punjab, Sessions Judges continued to try and decide such cases even after 2013. From the data we were able to gather, a total of 153 cases (and possibly more) involving pharmacies were heard wrongly by Session Judges with 107 of these cases ending in conviction! In many of these 107 convictions, the judges awarded the statutory minimum punishment that included imprisonment of up to three to five years. Legally speaking, all these sentences should be set aside and the accused cannot be tried again because of the constitutional safeguard against trying people for the same offence more than once.
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Punjab is not the only state to witness such gaffes. West Bengal is another state that experienced a different kind of gaffe at the prosecution stage. We were able to access approximately 95 judgments in West Bengal through the e-courts system for the time period between 2015 and 2019. In 61 of these cases which were filed before the Session
Judges in Darjeeling and Malda, the state was prosecuting persons found to be “stocking” without a licence, large quantities of habit-forming, addictive drugs including fixed dose- combinations that contained Tramadol (an opiate prone to abuse), sleeping medication that contained Benzodiazepam (a psychoactive drug) and an assortment of cough syrups that contained Codeine, which is an opiate and known to be heavily abused in India. The problem, however, was that in all these cases, it was the police which was conducting raids, arresting persons, and prosecuting them before Sessions Judges.
The Drugs and Cosmetics Act 1940 is very clear that only drug inspectors notified by the state in the official gazette can institute prosecutions for offences under this legislation. As a result, in all 61 cases, the Sessions Judge acquitted the accused on the grounds that the police had no jurisdiction to prosecute cases under the Drugs and Cosmetics Act 1940. In another 22 cases that were prosecuted by drug inspectors who had the jurisdiction under the law to do so, the courts acquitted the accused due to poor investigations or procedural irregularities.
This excerpt from The Truth Pill: The Myth of Drug Regulation in India by Dinesh S. Thakur (@d_s_thakur) and Prashant Reddy T. (@Preddy85) has been published with permission from Simon & Schuster India.