23. Procedure of Inspectors. –
(1) Where an Inspector takes any sample of a drug 1[or cosmetic] under this Chapter, he shall tender the fair price thereof and may require a written acknowledgement therefor.
(2) Where the price tendered under sub-section (1) is refused or where the Inspector seizes the stock of any drug 1[or cosmetic] under clause (c) of section 22, he shall tender a receipt therefor in the prescribed form.
(3) Where an Inspector takes a sample of a drug 1[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 wilfully 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 1[or cosmetic] is being manufactured, it shall be necessary to divide the sample into three portions only:
Provided further that where the drug 1[or cosmetic] is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug 1[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 1[or cosmetic]; and
2[(iii) 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 despatch in ascertaining whether or not the drug 1[or cosmetic] contravenes any of the provisions of section 18 and, if it is ascertained that the drug 1[or cosmetic] does not so contravene forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized;
(b) if he seizes the stock of the drug 1[or cosmetic], he shall as soon as may be, inform 3[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 1[or cosmetic], he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order under the said clause.
4[(6) 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 3[a Judicial Magistrate] and take his orders as to the custody thereof.]
(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.
1. Ins. by Act 21 of 1962, sec. 15 (w.e.f. 27-7-1964).
2. Subs. by Act 13 of 1964, sec. 16, for clause (iii) (w.e.f. 15-9-1964).
3. Subs. by Act 68 of 1982, sec. 20, for “a Magistrate” (w.e.f. 1-2-1983).
4. Ins. by Act 35 of 1960, sec. 6 (w.e.f. 16-3-1961).