Drugs and Cosmetics Act, 1940 - Confiscation

31. Confiscation. – [(1)(Note: Re-numbered as sub-section (1) by Act 35 of 1960, sec.9 (w.e.f. 16-3-1961))] Where any person has been convicted under this Chapter for contravening any such provision of this Chapter or any rule made there under as may be specified by rule made in this behalf, the stock of the drug [(Note: Ins. by Act 21 of 1962, sec.21 (w.e.f. 27-7-1964)) or cosmetic] in respect of which the contravention has been made shall be liable to confiscation [(Note: Added by Act 13 of 1964, sec.21 (w.e.f. 15-9-1964)) and if such contravention is in respect of –

[(i) (Note: Subs. by Act 68 of 1982, sec.26, for clause (i) (w.e.f. 1-2-1983)) Manufacture of any drug deemed to be misbranded under section 17, adulterated under section 17A or spurious under section 17B ; or]

(ii) [(Note: Subs. by Act 68 of 1982, sec.26, for certain words (w.e.f. 1-2-1983)) manufacture for sale, or for distribution, sale, or stocking or exhibiting or offering for sale,] or distribution of any drug without a valid licence as required under clause (c) of section 18, any implements or machinery used in such manufacture, sale or distribution and any receptacles, packages or coverings in which such drug is contained and the animals, vehicles, vessels or other conveyances used in carrying such drug shall also be liable to confiscation].

[(2) (Note: Sub-section (2) ins. by Act 35 of 1960, sec.9, subs. by Act 21 of 1962, sec.21 (w.e.f. 27-7-1964)) Without prejudice to the provisions contained in sub-section (1), where the Court is satisfied, on the application of an Inspector or otherwise and after such inquiry as may be necessary that the drug or cosmetic is not of standard quality [(Note: Subs. by Act 13 of 1964, sec.21, for "or is a misbranded drug" (w.e.f. 15-9-1964)) or is a [(Note: Subs. by Act 68 of 1982, sec.26, for certain words (w.e.f. 1-2-1983)) misbranded, adulterated or spurious drug or misbranded or spurious cosmetic,] such drug or, as the case may be, such cosmetic shall be liable to confiscation.]

31A. Application of provisions to Government departments. – The provisions of this Chapter except those contained in section 31 shall apply in relation to the manufacture, sale or distribution of drugs by any department of Government as they apply in relation to the manufacture, sale or distribution of drugs by any other person.

32. Cognizance of offences. – (1) No prosecution under this Chapter shall be instituted except by an Inspector [(Note: Ins. by Act 71 of 1986, sec.3 (w.e.f. 15-9-1987)) or by the person aggrieved or by a recognised consumer association whether such person is a member of that association or not.]

(2) No court inferior to that of [(Note: Subs. by Act 68 of 1982, sec.27, for "a Presidency Magistrate or of a Magistrate of the first class" (w.e.f. 1-2-1983)) a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter.

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission, which constitutes an offence against this Chapter.

32A. Power of Court to implead the manufacturer, etc. – Where, at any time during the trial of any offence under this Chapter alleged to have been committed by any person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, the Court is satisfied, on the evidence adduced before it, that such manufacturer or agent is also concerned in that offence, then, the Court may, notwithstanding contained [(Note; Subs. by Act 68 of 1982, sec.28, for "in sub-section (1) of section 351of the Code of Criminal Procedure, 1898" (w.e.f. 1-2-1983)) in sub-sections (1), (2) and (3) of section 319 of the Code of Criminal Procedure, 1973], proceed against him as though a prosecution had been instituted against him under section 32.]

Provided that consultation with the Board may be dispensed with if the Central Government is of opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case the Board shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Board may make in relation to the amendment of the said rules.]

(2) Without prejudice to the generality of the foregoing power, such rules may –

(a) Provide for the establishment of laboratories for testing and analyzing drugs [(Note: Ins. by Act 21 of 1962, sec.22 (w.e.f. 27-7-1964)) or cosmetics];

(b) Prescribe the qualifications and duties of Government Analysts and the qualifications of Inspectors;

(c) Prescribe the methods of test or analysis to be employed in determining whether a drug [(Note: Ins. by Act 21 of 1962, sec.22 (w.e.f. 27-7-1964)) or cosmetic] is of standard quality;

(d) Prescribe, in respect of biological and organ metallic compounds, the units or methods of standardization;

[(dd) (Note: Ins. by Act 13 of 1964, sec.24 (w.e.f. 15-9-1964)) Prescribe under clause (d) of [(Note: Subs. by Act 68 of 1982, sec.29, for "section 17B" (w.e.f. 1-2-1983)) section 17A] the colour or colours which a drug may bear or contain for purposes of colouring ;]

(e) Prescribe the forms of licences [(Note: Subs. by Act 68 of 1982, sec.29, for "for the manufacture for sale" (w.e.f. 1-2-1983)) for the manufacture for sale or for distribution], for the sale and for the distribution of drugs or any specified drug or class of drugs [(Note: Ins. by Act 21 of1962, sec.22 (w.e.f. 27-7-1964)) or of cosmetic or any specified cosmetic or class of cosmetics], the form of application for such licences, the conditions subject to which such licences may be issued, the authority empowered to issue the same [(Note: Ins. by Act 68 of 1982, sec.29 (w.e.f. 1-2-1983)) the qualifications of such authority] and the fees payable therefore [(Note: Ins. by Act 68 of 1982, sec.29 (w.e.f. 1-2-1983)) and provide for the cancellation or suspension of such licences in any case where any provision of this Chapter or the rules made there under is contravened or any of the conditions subject to which they are issued is not complied with];

[(ee) [(Note: Ins. by Act 68 of 1982, sec.29 (w.e.f. 1-2-1983)) Prescribe the records, registers or other documents to be kept and maintained under section 18B;

(eea) Prescribed the fees for the inspection )for the purposes of grant or renewal of licences) of premises, wherein any drug or cosmetic is being or is proposed to be manufactured;

(eeb) Prescribe the manner in which copies are to be certified under sub-section (2A) of section 22;]

(f) Specify the diseases or ailments, which a drug may not purport or claim [(Note: Subs. by Act 11 of 1955, sec.15, for "to cure or mitigate") to prevent, cure or mitigate] and such other effects which a drug may not purport or claim to have;

(g) Prescribe the conditions subject to which small quantities of drugs may be manufactured for the purpose of examination, test or analysis ;

(h) Require the date of manufacture and the date of expiry of potency to be clearly and truly stated on the label or container of any specified drug or class of drugs, and prohibit the sale, stocking or exhibition for sale, or distribution of the said drug or class of drugs after the expiry of a specified period from the date of manufacture or after the expiry of the date of potency;

(i) Prescribe the conditions to be observed in the packing in bottles, packages, and other containers of drugs [(Note: Ins. by Act 21 of 1962, sec.22 (w.e.f. 27-7-1964)) or cosmetics], [(Note: Ins. by Act 68 of 1982, sec.29 (w.e.f. 1-2-1983)) including the use of packing material which comes into direct contact with the drugs] and prohibit the sale, stocking or exhibition for sale, or distribution of drugs [(Note: Ins. by Act 21 of 1962, sec.22 (w.e.f. 27-7-1964)) or cosmetics] packed in contravention of such conditions;

(j) Regulate the mode of labeling packed drugs [(Note: Ins. by Act 21 of 1962, sec.22 (w.e.f. 27-7-1964)) or cosmetics], and prescribe the matters, which shall or shall not be included in such labels;

(k) Prescribe the maximum proportion of any poisonous substance which may be added to or contained in any drug, prohibit the manufacture, sale or stocking or exhibition for sale, or distribution of any drug in which that proportion is exceeded, and specify substances which shall be deemed to be poisonous for the purposes of this Chapter and the rules made there under;

(l) Require that the accepted scientific name of any specified drug shall be displayed in the prescribed manner on the label or wrapper of any patent or proprietary medicine containing such drug;

(m) (Note: Clause (m) omitted by Act 13 of 1964, sec.24 (w.e.f. 15-9-1964))

[(n) [(Note: Subs. by Act 35 of 1960, sec.10, for clause (n) (w.e.f. 16-3-1961)) Prescribe the powers and duties of Inspectors [(Note: Ins. by Act 68 of 1982, sec.29 (w.e.f. 1-2-1983)) and the qualifications of the authority to which such Inspectors shall be subordinate] and [(Note: Subs. by Act 21 of 1962, sec.22, for "the drugs or class of drugs" (w.e.f. 27-7-1964)) specify the drugs or classes of drugs or cosmetics or classes of cosmetics] in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed;]

(o) Prescribe the forms of report to be given by Government Analysts, and the manner of application for test or analysis under section 26 and the fees payable therefore;

(p) [(Note: Subs. by Act 13 of 1964, sec.24 for clause (p) (w.e.f. 15-9-1964)) specify the offences against this Chapter or any rule made there under in relation to which an order of confiscation may be made under section 31; and ]

(q) Provide for the exemption, conditionally or otherwise, from all or any of the provisions of this Chapter or the rules made there under, of any specified drug or class of drugs [(Note: Ins. by Act 21 of 1962, sec.22 (w.e.f. 27-7-1964)) or cosmetic or class of cosmetics].