1
IN THE COURT OF THE I ADDL. DISTRICT AND SESSIONS JUDGE,
WEST GODAVARI, ELURU
PRESENT: Sri T. Mallikarjuna Rao, I.Addl. District & Sessions Judge, West Godavari, Eluru.
Thursday, this the 25th day of February, 2021
CRIMINAL APPEAL No.340/2017
in
C.C.No.1382/2004
1From which Court the :II Additional Judicial Magistrate of I Appeal is preferredClass, Eluru 2Name & Description of the ::M.Yugandhar (6th accused) Appellant/Accused No.6 3Name & Description of the :: 1)The Drug Inspector, Cuddapah, Respondents/ComplainantState of Andhra Pradesh. (Complainant)
2)State rep.by Public Prosecutor, District and Sessions Court, Eluru 4Sentence and Law under ::The accused 3 and 6 are found guilty which it was imposed in for the offence punishable under Lower Court Section 18 (a) (i) and Section 27 (d) of the Drugs and Cosmetics Act and convicted under Section 255 (2) Cr.P.C. A3 and A6 are sentenced to undergo simple imprisonment for a period of One year and to pay a fine of Rs.20,000/- each and in default of payment of fine undergo simple imprisonment for a period of 3 months. The accused are appraised about their right to prefer an appeal against the Calender and Judgment. M.O.1 Synomol Syrup shall be destroyed after expiry of appeal time. 5Whether Confirmed, :: MODIFIED Reversed or Modified, If In the result, the Criminal modified the modificationAppeal is dismissed confirming the judgment dated 28-08-2017 in C.C.No.1382/2004 on the file of II
Additional Judicial Magistrate of I
Class, Eluru convicting the accused (A6) for the offence under Section 18(a) (i) punishable under Section 27(d) of Drugs and Cosmetics Act and the accused is convicted under Section 255(2) Cr.P.C. and modifying the sentence of imprisonment from ONE YEAR to THREE MONTHS and modifying the 2 payment of fine amount from Rs.20,000/- to Rs.10,000/-. The accused is entitled to refund of the excess fine amount of Rs.10,000/- which he already paid after expiry of appeal time. As the accused already paid the fine amount, no need to pass default sentence.
Date on which:
1Presentation : 19-09-2017 2Filing : 19-09-2017 3Notice issued by court to :10-11-2017 appear 4Bail bond if appellants has : -- been let out on bail 5Appellant ordered to appear: -- 6Hearing:18-02-2021 7Order:25-02-2021
This Appeal having come before me, against the Judgment Dt.28-08- 2017 passed in C.C.No.1382/2004 on the file of the II Addl.Judl.
Magistrate of I Class, Eluru.
Between:
The Drug Inspector, Cuddapah...Complainant.
And
1. Kurre Venkata Reddy, S/o.Nagi Reddy, Aged 59 years, Dasarivari Street, Suryaraopeta, Vijayawada.
2. Kurre Seshi Reddy, S/o.Venkata Reddy, Aged 35 years, D.No.32-29-5/4, Maruthi Nagar, Vijayawada
3. Kurre Malla Reddy, S/o.Venkata Reddy, Aged 31 years, Dasarivari Street, Suryaraopet, Vijayawada.
4. Janga Kanaka Sarada, W/o.Chandra Reddy, Age 32 years, Dasarivari Street, Suryaraopet, Vijayawada.
5. M.Narasimha Rao, Manufacturing Chemist, D.No.38-7-4, Maruthi Nagar, Vijayawada-4
6. M.Yugandhar, Analytical Chemist, D.No.29-19-57, Domakal Road, Vijayawada -2.
7. M/s.Andhra Chemicals and Cosmetics, D.No.39-29-5/4 , Maruthi Nagar, Vijayawada (represented by A2) … Accused.
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And upon hearing of Sri K.M.S.Sastry, P.Vijaya Bhaskar and Sri J.S.K.Reddy, Advocate for Appellant/Accused No.6, and the Additional Public Prosecutor for respondents 1 and 2 and having stood over for consideration, till this day, this court delivered the following:
JUDGMENT
It is an appeal filed under Sections 374, 382 and 386 of Cr.P.C on behalf of A6 against the Calender and judgment in C.C.No.327/1999 on the file of Judicial Magistrate of I Class, Cuddapah and thereafter transferred as per orders of the Hon’ble High Court in
Crl.M.P.No.5819/2001, dated 25-08-2004 to II Additional Judicial
Magistrate of I Class, Eluru wherein it was numbered as
C.C.No.1382/2004 and the Court passed conviction and sentence dated 28-08-2017 for the offence under Section 18(a) (i) and Section 27(d) of
Drugs and Cosmetics Act to undergo Simple Imprisonment against A6 for a period of One year and to pay a fine of Rs.20,000/-, in default of payment of fine to undergo Simple Imprisonment for a period of three months.
2. The Drugs Inspector, Nalgonda has laid a complaint against seven accused persons alleging of the offence under Section 18 (a) (i) read with Sections 16 and 27 of the Drugs and Cosmetics Act. It can be seen from the record in C.C, the case against A1, A2, A4 and A7 are abated and case against A5 is dismissed.
3.(a). The case of the complaint, in brief, is as follows:
The complainant Sri Ramadhan (P.W.1) is appointed as Inspector of Drugs under Section 21 of the Drugs and Cosmetics Act, 1940 having jurisdiction over the entire State of Andhra Pradesh and also empowered under Section 32 of the Act.
(b).A1, A2, A3 and A4 are Managing Partners and A5 is
Manufacturing Chemist and A6 is Analytical Chemist are responsible for drug manufacturing unit (A7) run under the name and style of
M/s.Andhra Chemicals and Cosmetics, Vijayawada possessing valid licence in Form-25 bearing No.5/KR/A.P./96/F/CP, dated 28-01-1970 duly renewed upto 31-12-1999 for manufacturing for sale and selling of certain drugs including Synomol Syrup B.No.0380, Exp. Dated 8/1999.
(c). On 10-06-1998 Sri Ramdhan (P.W.1), Drugs Inspector, 4
Cuddapah had collected under Section 23 of the said Act and Rules thereunder, a drug by name Synomol Syrup. B.No.0380, Mfg. Dated 3/1998, Exp.dated 8/1999, manufactured in India by M/s.Andhra
Chemicals and Cosmetics, Vijayawada for thepuprose of office,Sankarapuram, Cuddapah as per the procedure, in presence of Sri
G.Sai Prasad the then Joint Collector, Cuddapah, Dr.C.Obul Reddy,
DCHS, Cuddapah and Dr.P.Radha Krishna Reddy, MBBS,District
Medical & Health Officer, Cuddapah (P.W.2)
(d). On 12-06-1998 P.W.1 had personally handed over, a sealed portion of 1 x 450 ml Synomol Syrup B.No.0380, Mfg.dt.3/98
Exp.Dt.8/1999, Mfg.by M/s.Andhra Chemicals and Cosmetics,
Vijayawada-4, along with original Form-18 bearing
No.28/DI/GRD/CDP/98, dated 11-06-1998 and further that he had also handed over carbon duplicate copy of the said Form – 18 along with the specimen impression of the seal used, to the Government Analyst, Drugs
Control Laboratory, Hyderabad as per the provisions of the said Act and
Rules there under his office letter Rc.No.28/DI/GRD/CDP/98-TEST
dated 11-06-1998.
(e). On 12-06-1998 P.W.1 had submitted detailed report under his office Lr.Rc.No.26-31/DI/GRD/CDP/98, dated 11-06-1998 to the
Director, Drugs Control Administration, Hyderabad about samples lifted from the stores of DM & HO, Cuddapah on10-06-1998.
(f). On 18-07-1998 P.W.1 had received a letter
Rc.No.5060/B1/99, dated 06-07-1997 from the District Medical and
Health Officer, Cuddapah requesting for communication of the Analysis report of drugs lifted for Analysis on 10-06-1998.
(g). On 22-07-1998 P.W.1 had received a letter from the
Government Analyst, Drugs control Laboratory, Hyderabad under
Laboratory No.170, 1998, Dated 17-07-1998, a certificate of
Test/Analysis in Form – 13 bearing report No.1159/DCL/98, dated 17- 07-1998 in triplicate, declaring the said drug as of NOT OF STANDARD
QUALITY since the assay for paracetamol was found 18.66 mg/5 ml as against the label claim of 125 mg/5 ml.
(h). On 23-07-1998 P.W.1 had forwarded under his office letter
Rc.No.26-31/DI/GRD/CDP/98, dated 23-07-1998 one copy of sale
Form-13 to the District Medical and Health Officer, Cuddapah and 5 requested for certain details as per the provision of the aid Act and Rules there under.
(i). On 24-07-1998 P.W.1 had received a letter
Rc.No.5060/B1/97, dated 24-07-1998 from the District Medical and
Health Officer, Cuddapah furnishing the purchase and details of stock position and produced the original documents pertaining to the
SYNOMOL syrup B.No.0380.
(j). On 24-07-1998 P.W.1 had returned under his office letter
Rc.No.26-31/DI/GRD/CDP/98, dated 24-07-1998, the original
documents received on 24-07-1998 to the District Medical and Health
Officer, Cuddapah and on the same day P.W.1 received certified xerox copies of the above four documents from DM & HO, Cuddapah.
(k). On 27-07-1998 P.W.1 had personally handed over under his office letter Rc.No.26-31/DI/GRD/CDP/98, dated 25-07-1998, a sealed portion of the sample and Analysis report to M/s.Venkataramana
Agencies, 12/656-3, ground floor, Rajabata Street,Proddatur-516360 and requested for certain details as per the provisions of the said Act and
Rules thereunder.
(l). On 27-07-1998 P.W.1 personally received a letter dated 27- 07-1998 from M/s.Venkataramana Agencies, Proddatur, Cuddapah
District disclosing the purchase and sales particulars along with its enclosures.
(m). On 12-8-1998 P.W.1 forwarded under his office letter
Rc.No.26-31/DI/GRD/CDP/98, dated 12-8-1998 addressed to
M/s.Andhra Chemicals and Cosmetics, D.No.32-29-5/4, Maruthinagar,
Vijayawada and requested certain details as per the provisions of the said Act and Rules thereunder and obtained the acknowledgment for the same.
(n). On 22-08-1998 P.W.1 had received a letter
L.Dis.No.H2/3397/98, dated 13-08-1998 from the District Collector,
Cuddapah and instructed to take necessary action as per rules.
(o). On 29-08-1998 P.W.1 had personally received a letter dated 29-8-1998 from K.Sesha Reddy partner of M/s.Andhra Chemicals and
Cosmetics (A7), Vijayawada and furnished sales particulars of synomol syrup B.No.0380 and the names of manufacturing chemist and 6
Analytical Chemist of their firm.
(p). On 29-8-1998 P.W.1 had personally received a letter dated 29-8-1998 from M/s.Andhra Chemicals and Cosmetics (A7), Vijayawada, addressed to the District Medical and Health Officer, Cuddapah.
(q). On 07-09-1998 P.W.1 had received a letter
Rc.No.5060/B1/97, dated 31-08-1998 from the District Medical and
Health Officer, Cuddapah furnishing the quantity of said drug batch wise.
(r). On 07-09-1998 P.W.1 had received a letter
Rc.No.5060/B1/97, dated 17-08-1998 from the District Medical and
Health Officer, Cuddapah addressed to M/s.Andhra Chemicals and
Cosmetics (A7), Vijayawada to furnish details of quantity of each batch of syrup.
(s). On 07-09-1998 P.W.1 had received a letter dated 31-08-1998
M/s.Venkata Ramana Agencies, Proddatur addressed to M/s.Andhra
Chemicals and Cosmetics (A7), Vijayawada requested to refund of payment for the supply of said drug.
(t). On 19-09-1998 P.W.1 had received a letter
Rc.No.5060/B1/97, dated 10-9-98 from District Medical and Health
Officer, Cuddapah addressed to M/s.Andhra Chemicals and Cosmetics,
Vijayawada intimated to returned of stock of said drug.
(u). On 25-9-1998 P.W.1 had requested under his office letter
Rc.No.26-31/DI/GRD/CDP/98, dated 25-09-1998 to the Director, Drugs
Control Administration, Hyderabad permit to launch prosecution for the said drug against the manufacturer.
(v). On 18-11-1998 P.W.1 had once again sent a remainder under his office letter Rc.No.26-31-DI/GRD/CDP/98 to the Director,
Drugs Control Administration, Hyderabad permit to launch prosecution for the said drug against the manufacturer.
(w). On 09-12-1998 P.W.1 had received a letter dated nil from
M/s.Andhra Chemicals and Cosmetics, Vijayawada (A6) addressed to the
Director, Drugs Control Administration, Hyderabad.
(x). On 28-12-1998 P.W.1 received a letter
Rc.No.8963/M1NSQ/98, dated 22-12-1998 from the Director, Drugs
Control Administration, Hyderabad permitting to launch prosecution against M/s.Andhra Chemicals and Cosmetics, Vijayawada and also 7 against the responsible persons of the firm for having manufactured NOT
OF STANDARD QUALITY Synomol Syrup B.No.0380 with its enclosures in 26 pages.
(y). On 15-03-1999 P.W.1 received a letter
Rc.No.8963/M1.NSQ/98, dated 27-02-1999 along with its enclosure
dated 21-01-1999 of M/s.Andhra Chemicals and Cosmetics, Vijayawada
from the Director, Drugs Control Administration, Hyderabad to include
Technical staff of the firm also as accused.
(z). Synomol Syrup I.P. is a drug within the meaning of Section 3
(b) of the Drugs and Cosmetics Act, 1940 Further Synomol (Paracetamol)
Syrup B.No.0380 manufactured and sold by M/s.Andhra Chemicals and
Cosmetics, Vijayawada is a drug of not of standard quality under section 16 of Drugs and Cosmetics Act, 1940, since the assay for Paracetamol was found to be 18.66 mg/5 ml as against the lable claim of 125 mg/5 ml. Further the said drug is also deemed to be Spurious drug withint eh meaning of section 17 (B) (d) of the Drugs and Cosmetics Act, 1940, since the content of Paracetamol was found to be 18.66 mg/5 ml though the total volume of syrup is 450 ml.
(aa). As per Section 18 (a)(i), no person shall himself or by any other person on his behalf manufacture for sale or for distribution or stock or exhibit or offer for sale or distribute any drug which is not of standard quality or which is spurious and that the accused had contravened the said provisions by manufacturing for sale and selling and distributing the said not of standard quality and spurious synomol (paracetamol) syrop B.No.0380 and that the said offences are punishable under Section 27 (d) and 27 (c) respectively of the Drugs and Cosmetics
Act, 1940.
4. The complaint was taken cognizance against A1 to A7 for the offences under Section 18(a) (i) read with 16 and 18(a) read with Section 17(B) (D) punishable under Section 27(d), 27(c) of Drugs and Cosmetics
Act (hereinafter referred as the Act). The accused Nos.3 and 6 were examined u/Sec.251 of Cr.P.C, by explaining the substances of the accusations leveled against them, for which they denied the same, pleaded not guilty and claimed to be tried.
5.Before the Trial Court, on behalf of the complainant, P.Ws.1 to 3 were examined and Ex.P1 to Ex.P42 and M.O.1 were marked.
8
6.After closure of the evidence on behalf of the complainant, the accused persons, A3 and A6 were examined under Section 313 of
Cr.P.C explaining the incriminating circumstances appeared against them in oral and documentary evidence and the same was denied by them. The accused persons were called upon to enter into defence evidence, for which they reported no defence evidence,
7.After hearing the arguments, the learned II Judl. Magistrate of I Class, Eluru found A3 and A6 are guilty for the offence u/Sec. 18(a)
(i) read with 16 and 17 of the Drugs and Cosmetics Act and they were convicted under Section 255 (2) Cr.P.C and sentenced A6 to as referred to above.
8.The appellant is A6 and the 1st respondent is the State represented by Drug Inspector, Nalgonda. The 2nd respondent is the
State represented by Additional Public Prosecutor, Eluru and the parties herein will be hereinafter referred as complainant and accused as referred before the Trial Court.
9. Aggrieved by the above conviction and sentence, the accused
No.3 preferred this appeal with the following grounds.
The Trial Court has failed to see that there is inordinate delay in filing of the complaint, calculated from the date of alleged collection of sample, analysis and public analyst report thereon with reference to the alleged non-standard drug in question and the sanction for the prosecution and filing of the complaint by the competent authority is without application of mind and the collection of the sample of alleged non-standard drug in this case is not in accordance with the provisions of the Drugs Act and rules made thereunder and that there was no notice on the person, who is allegedly concerned with answering the prosecution as contemplated under Cr.P.C, Drugs Act and rules made thereunder; and that the notice on the manufacturer of the non- standard drug is delayed and there was no notice on the accused (Analytical Chemist) stating and establishing as to how he is concerned with the non-standard drug referring to the incriminating and proved and circumstances of the case; there was no notice on the accused of Public Analyst report corresponding to the alleged non-standard item in the case, the 9 period available at the disposal of the accused for sending the non- standard drug to the Central drug laboratory for second analysis and thereby the complainant has deprived the statutory rights under Section 25 of the Act; the Trial Court has violated the provisions of Section 18(a) of the Drugs and Cosmetics Act is not following the issue of required notices on the accused right from the time of sample till filing of the complaint; the violations as to the quality/composition of the drug making if non-standard quality are not attributable to the manufacturer of the drug, but they are attributable to non-standard storage conditions (if any) by the persons keeping stock with them for which they have to account for; the accused was roped in the case only at the time of filing of the complaint and there was no compliance of the procedure prior to the filing of the complaint;
9. Heard both sides. Perused the material on record.
10. Now, the point that would arise for consideration and determination is:
11. Now, the point that would arise for consideration and determination is:
Whether the Trial Court is justified in holding that prosecution proved the guilt of 6 th accused beyond reasonable doubt for the offence under Section 18(a)(i) read with Section 27(d) of
Drugs and Cosmetics Act?
12. As seen from the record, the Drug Inspector laid complaint against the accused under Section 18(a)(i) read with Section 16 punishable under Section 27(d) of Drugs and Cosmetics Act. The Trial
Court has taken cognizance of the offence under Section 18(a)(i) read with Section 16 and 17 of Drugs and Cosmetics Act. The Trial Court convicted the accused person No.3 only under Section 18(a)(i), 27(d) of
Drugs and Cosmetics Act.
13. To prove the complainant’s case, P.W.1 G.Ramdhan who worked as Drug Inspector, Cuddapah from 1997 to 2002 is examined.
His evidence shows that he is appointed as Drug Inspector under Section 21 of Drugs and Cosmetics Act, 1940 having jurisdiction over the entire
State of A.P.
14. P.W.1 deposed that on 10-06-1998 as per the instructions of 10
Assistant Director D.C.A. Cuddapah, he participated in the inspection carried out in the stores of District Medical Health, Cuddapah along with
Sri G.Sai Prasad, Joint Collector, Cuddapah, Dr.C.Obulareddy, DCH,
Cuddapah, P.W.3 Dr.P.Radha Krishna Reddy, DM & HO, Cuddapah. To establish the said fact, the complainant examined P.W.3 P.Radha
Krishna Reddy who deposed that on 10-06-1998 Joint Collector,
Cuddapah, Sri G.Sai Prasad, DM & HO and Drug Inspector. The evidence of P.W.1 is supported by the evidence of P.W.3 regarding their visit and carrying out the inspection in the stores of District Medical
Office, Cuddapah on 10-06-1998. Their evidence is not seriously disputed in the cross-examination with regard to their carrying out inspection in the stores of District and Medical and Health Office.
15. According to the evidence of P.W.1 at the time of inspection, the Joint Collector instructed him to collect samples of six items of drugs for analysis. The drugs are: (1) Tetracycline capsules, (2) Iron Folic Acid tablets, (3) Synomol Syrup (paracetamol), (4) Citral ORS sachets, 5.
Ampililline capsules and (6) Poly Vitiman tablets. Then he collected four samples of each of six drugs as per the procedure laid down under Drugs and Cosmetics Act, 1940. He handed over one sample of each of six drugs along with Form 17 to P.W3 Dr.P.Radha Krishna Reddy and obtained acknowledgment from P.W.3.
16. The said evidence of P.W.1 is corroborated by the evidence of
P.W.3. The said evidence of P.W.1 and P.W.3 is not seriously disputed during cross-examination. In support of the said evidence, the complainant has also relied on Ex.P1 Form 17 dated 10-06-1998. In this connection, P.W.3 deposed that he handed over copies of purchase orders along with invoices of the said drugs to the Drug Inspector,
Cuddapah and he made an endorsement in Form No.17 i.e, Ex.P1 to that effect.
17. It is the evidence of P.W.1 that on 12-06-1998 he personally handed over one sealed portion of Synomol (Paracetamol) syrup bearing batch No.0380 having manufacturing name 3/1998 and expiry dated 8/1999, manufactured by Andhra Chemicals and Cosmetics, Vijayawada along with original Form – 18 along with specimen impression of the seal used on the sample to the Government Analyst, Drugs Control,
Administration Hyderabad.
11 18. In support of said case, the complainant relied on Ex.P2
Form – 18, dated 11-06-1998. Ex.P3 document shows that P.W.1 requested the Government Analyst that the sealed sample of the drug which is submitted for test may be tested or analysed and certificates of tests or analysis be forwarded. Ex.P4 letter dated 11-06-1998 shows that
P.W.1 addressed proceedings to the Director, Drugs Control
Administration, Vengalrao Nagar. A reading of Ex.P4 proceedings dated 06-07-1998 shows that Assistant Director has been requested to get the analysis report on top priority basis as otherwise distribution of drugs would suffer and it is also intimated that the report has not been received so far and requested to take necessary action to get the Analysis report on top priority basis.
19. It is also the evidence of P.W.3 that on 06-07-1998 he addressed Ex.P38 letter to Assistant Director, Drugs Control
Administration with a request to give top priority for getting analyst report. It is the evidence of P.W.1 that on 22-07-1998, he received Ex.P6 report along with Ex.P5 covering letter from the Government Analyst,
Drugs Control Laboratory, Hyderabad of concerning Synomol Syrup of
Batch No.0380 bearing report No.1159/DCL/1998, dated 17-07-1998 in
Form No.13 in which it was opined that the sample does not confirm to the label claim in respect of paracetamol content as per Indian Pharma
Copiea. The sample contained only 18.66 mg per 5 ml. of paracetamol as against 125 mg/5 ml. Ex.P6 Analyst report dated 17-07-1998 supports the version of P.W.1 that the sample referred to is not of standard quality as defined in the Drugs and Cosmetics Act and the drug does not confirm to the labeled claim in respect of paracetemol content.
20. The evidence of P.W.1 and P.W.3 goes to show that on 23-07- 1998 P.W.1 communicated the analysis report to DM & HO, Cuddapah under due acknowledgment vide Ex.P7 letter with a request to stop the use of the said drug and to furnish original purchase invoices order placed to the manufacturer and stock position held by the stores. The evidence of P.Ws.3 and P.W.1 goes to show that on 24-07-1998 P.W.3 addressed Ex.P8 letter to the Drug Inspector, furnishing original purchase bills and office copy orders placed on the manufacturer along with distribution and authorization record. The said evidence of P.W.3 supported by the evidence of P.W.1 who deposed that on 24-07-1998 he 12 received Ex.P9 letter from DM & HO, Cuddapah, stating that they purchased the said drugs from Andhra Chemicals and Cosmetics,
Vijayawada through their authorized distributor M/s.Venkatarama
Agencies, Prodduturu and P.W.2 T.P.Venkata Ramana is the proprietor of
M/s.Venkatarama Agencies and along with the said letter DM & HO,
Cudddapah furnished Ex.P10 certified copy of purchase of invoice dated 11-04-1998 and Ex.P11 certified copy of invoice dated 11-04-1998 and
Ex.P12 certified copy of invoice bearing No.363 dated 20-04-1998. As seen from the cross-examination of P.Ws.1 and 3, there is no serious dispute regarding the correspondence as referred and also handing over of the invoices.
21. To establish that P.W.2 is the authorized agent, the complainant relied on Ex.P13 authorization letter which shows that
Andhra Chemicals and Cosmetics authorized M/s.Venkata Rama
Agencies as their distributor to deal with their approved product with
Director of Health and Director of Medical Education and they are authorized to raise bills also. To prove the said case of the complainant,
P.W.2 Sri P.P.Venkata Ramana was examined. His evidence shows that he is a pharmaceutical distributor and he is running business in the name and style of M/s.Venkata Ramana Agencies at Proddutur since 1994. It is the evidence of P.W.1 that he personally issued Ex.P14 notice to M/s.Venkata Ramana Agencies, Proddutur along with analysis report and a sealed portion of the said syrup sample under acknowledgment and requested him to confirm the sale of said drug to DM & HO,
Cuddapah and to produce original purchase invoice and license held by him. A reading of Ex.P14 notice dated 25-07-1998 shows that
M/s.Venkata Ramana Agencies, has been requested to stop forthwith sale/distribution of said drug and disclose as required under Section 18(a) the address and other particulars of the person from whom the drug was acquired and to submit the original record as required under
Section 22 (1) (CCA) of the said Act and Rules and to confirm the sale of said drug under its invoices and to submit the original licenses in Form – 20 (B) and 21 (B) held by it to deal the drug by way of wholesale.
22. In this regard P.W.2 deposed that on 27-07-1998, P.W.1 came to their office and handed over to him one sealed portion of
Synamol syrup along with analysis report and obtained his 13 acknowledgment (Ex.P35) on the covering letter and Ex.P36 is the true copy of purchase order made D.M. & HO, Cudapah to the manufacture.
It is the evidence of P.Ws.1 and 2 that P.W.2 addressed a reply letter (Ex.P15) dated 27-07-1998 while enclosing copies of drug license in
Ex.P16 Form No.20 (B) and 21 (B), purchase order dated 17-03-1998,
Ex.P37 authorization letter dated 20-03-1998, Ex.P18 purchase bill
No.2/1998-199, dated 09-4-98, Ex.P19 purchase bill No.3/98, dated 11- 04-1998, Ex.P20 invoice bearing No.14/98-99, dated 21-04-1998,
Ex.P21 waybill in Form No.10 bearing No.5002289, dt.09-04-98, Ex.P22 waybill in Form No.10 No.5002290, dated 11-04-1998 and Ex.P23 way bills bearing Nos.097266 and 097267.
23. Ex.P16 Form 20(B) shows that M/s.Venkata Ramana agencies is licensed to sell, start or exhibit sale or distribute by wholesale drug of other than those specified in schedule (c) and (c1) and (x) from 01-04-1998 to 31-12-1992. It is the evidence of P.W.1 that P.W.2 confirmed the sale of disputed drug to DM & HO, Cuddapah and stated that he has purchased the Andhra Chemicals and Cosmetics,
Vijayawada. In this regard P.W.2 stated that he has not supplied the drugs directly to DM & HO, Cuddapah and DM & HO directly obtained the stock from the manufacturer. However, he admitted that at the request of the manufacturer he raised the bills.
24. It is the evidence of P.W.1 that on 12-08-1998 he forwarded a notice with registered post with acknowledgment due vide Ex.P24 to
Andhra Chemicals and Cosmetics, Vijayawada. In Ex.P24 letter P.W.1 informed M/s.Andhra Chemicals and cosmetics, Vijayawada that one sealed portion of the drug was restored to the DM & HO, Cuddapah and another sealed portion of the said drug was handed over to M/s.Venkata
Ramana Agencies, Prodduturu while enclosing an attested true copy of the Form No.13 and also informed that it may procure sealed portion of the said drug from anyone of them and it is further requested to confirm the sale of said drug to Venkataramana Agencies, Prodduturu and submit the details of sale/distribution of said drug as required under
Section 18 (B) of the said Act and to furnish the details of the quantity supplied against each batch and submit attested true copies of manufacturing license along with the details of constitution and persons 14 responsible for the manufacture.
25. To show the service of the notice to M/s.Andhra Chemicals and Cosmetics, Vijayawada, the complainant relied on Ex.P25 postal acknowledgment. In Ex.P27 reply dated 29-08-1998 of Andhra
Chemicals and Cosmetics, Vijayawada informed that Synomol syrup batch No.0375, 0377, 0378, 0379, 0380, 0382 was sold by them to
M/s.Venkataramana Agencies and the details of the invoice numbers and batch numbers and quantity supplied furnished in the said reply. It is also informed that their firm is a partnership concern and the partnership deeds and licenses are not readily available since their father who is looking after the activities died on 01-06-1998 and they requested sometime to submit the particulars. However, in the said letter the partner Sri K.Seshi Reddy informed the details of the technical staff of their company approved by the Department. (1) Sri M.Narasimha Rao manufacturing chemist, (2) Sri M.Yugander, Analytical Chemist.
26. The evidence of P.W.1 coupled with Ex.P26 letter dated 20- 08-1998 addressed by the District Collector, Cuddapah to the Drug
Inspector, Cuddapah P.W.1 shows that P.W.1 was requested to pursue with the District Medical and Health Officer and obtain required information and take necessary action as per rules against the suppliers.
27. The evidence of P.W.1 coupled with Ex.P28 letter dated 25- 09-1998 shows that P.W.1 requested the Director, Drugs Control
Administration, Hyderabad to kindly permit him to launch prosecution against M/s. Andhra Chemicals and Cosmetics, Vijayawada.
28.The evidence of P.W.1 coupled with Ex.P29 proceedings
dated 22-12-1998 issued by Director General, Drugs Control of
Administration shows that the Drugs Inspector, Cuddapah is permitted to launch prosecution against M/s. Andhra Chemicals and Cosmetics,
Vijayawada. The evidence of P.W.1 coupled with Ex.P30 consent letter of technical staff in the manufacturing firm by M.Narasimha Rao shows that he has given consent to hold full time incharge for the manufacturing by M/s. Andhra Chemicals and Cosmetics, Vijayawada and also had undertaken his responsibility for the maintenance of all the records and registers. Ex.P25 is the true copy of license in Form No.25 and Ex.P33 is the list of approved products in four pages and Ex.P34 is 15 the true copy of partnership deed of M/s. Andhra Chemicals and
Cosmetics, Vijayawada.
29. The evidence of P.W.1 that he addressed a letter to DM &
HO, Cuddapah seeking certified copies of said documents by endorsing the letter vide Ex.P39 endorsement made by P.W.3 is supported by the evidence of P.W.3. It is the evidence of P.W.3 he addressed letter Ex.P40 to M/s. Andhra Chemicals and Cosmetics, Vijayawada to furnish the details of each bottle of paracetemol syrup supplied to their stores. It is the evidence of P.W.3 that on 31-08-1998 he addressed a letter Ex.P41 letter to Drugs Inspector, Cuddapah informing the batchwise quantity of synomol syrup which is declared as substandard. It is also the evidence of P.W.3 that he addressed Ex.P40 letter dated 10-09-1998 to M/s.
Andhra Chemicals and Cosmetics, Vijayawada returning 10640 bottles synomol syrup with batch No.0380.
30. The learned counsel for the appellant contended that there is a violation of mandatory provision in relation to Section 23 of the Drugs and Cosmetics Act. Section 23 of the Act says that where on Inspector takes any sample of Drug, he shall tender the fair price thereof may acquire written acknowledgment and Drug Inspector P.W.1 did not adduce evidence to that effect. Without cross-examining the witness on the said aspect, it cannot be said that there is a violation of provision of
Section 23 of the said Act. It is not explained what the prejudice would be caused to the accused if the fair price is not paid to the concerned person relating to the stores of District Medical Health, Cuddapah from whom P.W.1 was said to have purchased the same. P.Ws.1 and 3 are the competent persons to say about the same. There is nothing in the cross- examination of P.Ws.1 and 3 to elicit on the said aspect. As such this
Court is of view that much credence cannot be attached to the submission made by the counsel for the appellant in this regard.
31. The contention of the counsel for the appellant is that the prosecution has not filed any documentary proof to show that P.W.1 is the Drug Inspector for the area in which the samples are taken and public analyst is duly appointed by the Government and therefore it is clear violation of mandatory provisions of Section 20 and 21 of Drugs and Cosmetics Act and Section 21 deals with the appointment of Drug
Inspector and as per Section 22(1), the Central Government or State 16
Government may by notification with the official Gazette appoint a person to be the Inspector for such areas as may be assigned by the
State Government. The same contention is raised by the appellant counsel before the Trial Court and in support of the said contention, appellant counsel relied on a decision reported in M/s.Gaba
Pharmaceuticals, Hyderabad and another vs. State of A.P. in 2007
Drugs Cases (DC) 3. It is observed that “By notification in the Official Gazette, the Government can appoint Government Analyst for the purpose of analysis of drugs or cosmetics as specified in the notification.
No doubt the report of the Analyst is prima facie proved the offence, but at the same time when the appointment of the
Government Analyst is challenged by the petitioners, it is to be proved by the prosecution that Public Analyst was duly appointed by the Government by issuing a notification in the Official Gazette. In spite of objection taken by the petitioners, the prosecution has not come forward with any such notification in the Official Gazette for the purpose of showing appointment of Public Analyst.
A perusal of Section 21 goes to show that the Government may by notification in the Official Gazette appoint a person to be the
Inspector for such area as may be assigned by the State
Government.
It is further held that the provisions of Sections 20 and 21 of the Drugs and Cosmetics Act have not been complied with in spite of the fact that the accused raised objection before the Trial Court as well as Appellate Court. It is expected that the prosecution has to produce the Gazette notification. Since the Gazettee notification as published in the Official Gazette has not been placed before the
Courts below, illegal and improper findings are given.” 32. After careful reading of the decision cited above, this Court is of view that it is to be seen whether the appellant has taken objections regarding the notification of P.W.1 as Inspector for such an area and also appointment of public analyst. For the said purpose, I have gone through the cross-examination of P.W.1. P.W.1 clearly stated in his evidence that he is appointed as Drug Inspector, having jurisdiction over 17 entire State of Andhra Pradesh and he worked as Drug Inspector,
Cuddapah from the year 1997 to 2002. It is not suggested to P.W.1 in the cross-examination that he was not appointed as a Drug Inspector,
Cuddapah from the year 1997 to 2002. This Court is of view that simply because P.W.1 has not filed the notification showing his appointment as
Drug Inspector, Cuddapah, it does not go to the root of the matter when the evidence of P.W.1 is not disputed in cross-examination. The contention raised by the appellant may be accepted if it is suggested to
P.W.1 during the course of cross-examination that he was not appointed as Drug Inspector of Cuddapah area during the period from the eyar 1997 to 2002. The reading of the cross-examination does not show the appointment of public analyst is also disputed and in the said facts of the case, the decision relied on by the appellant counsel in this regard cannot be made applicable to the facts of the case.
33. The learned counsel for the appellant contended that P.W.1 violated the mandatory provisions of Rule 57 Drugs and Cosmetics Act, 1945 in relation to the Form No.18. As per Rule 57 the portion of the sample or the container sent by Inspector to the Government Analyst for test or analysis under sub-section 4 of Section 23 of the Act shall be sent by registered post or by hand in a sealed packet enclosed together with a memorandum in Form No.18. From reading of the Rule 57, it can be seen that it permits the production of the sample to the Government
Analyst either by registered post or by hand in a sealed packet. Ex.P6 analyst report in column No.6 condition of seals of this packet shows that seals intact and identical in specimen seals. It is the evidence of
P.W.1 that on 10-06-1998 he personally handed over one portion of synomol syrup to the Government Analyst. Though P.W.1 was subjected to cross-examination on the said aspect, nothing is elicited in cross- examination to discredit his evidence. The evidence of P.W.1 clearly establishes that he handed over the sealed portion of the sample to the analyst. It clearly complies with the Rule 57 of Drugs and Cosmetics
Rules. When the analyst report clearly speaks that the seals are intact, it is not open to the appellant to contend that there is no compliance of
Rule 57.
34. The learned counsel for the appellant contended that the
Government analyst was bound to furnish to the Inspector the full 18 protocols of the tests applied.
35. It is submitted that the provision of Rule 46 have been breached and in view of the provisions of Rule 46, the Government
Analyst is bound to furnish to the Inspector, the full protocols of the tests applied. Rule 46 lays down the procedure to be followed on receipt of the sample.
36. In a decision reported in State of Maharashtra vs.
Jawaharlal Shamlal Ujwane in 1979 Crl.L.J. 530 held that
Rule 57(1) and (2) and 46, with which we are concerned, are mandatory. It is, therefore, imperative that they must be strictly observed. It must also be manifest from the record that they have been so observed to the letter and not only in substance or spirit. These rules are framed as a measure of security and safeguard not only to an accused but also to the officers of the department. Their observance must not, in the interest of justice, be left to conjecture or interference. A strict observance of these rules can also enable the prosecution to prove its case, which in this case, on the aspect of the drug not being of standard quality, it has failed to do beyond reasonable doubt, the benefit whereof must go to the respondent.
37. This Court is of view that the report of the analyst becomes conclusive only when it has not been challenged according to the procedure prescribed in the Section, where the accused has not challenged the Government analyst report within 28 days from the date of report, the report of the Government analyst shall become conclusive of facts stated therein.
38. The contention of the learned counsel for the appellant is that there is no evidence adduced to the effect that the appellant/accused was incharge of or responsible for the conduct of the business of the company and in the absence of such evidence, no liability can be fastened on him for any offence alleged to have been committed by the company. The learned counsel for the appellant contended that as the case against the A7 firm is abated, the Trial Court is not justified in convicting Analytical Chemist (A6). The counsel for the appellant relied a decision reported in T.Kiran Kumar vs. Drug Inspector, 19
Tirupathi, Chittor District in 2009 (2) ALD (Crl.) 369 A.P. and also another decision reported in Chekka Venkata Chenna Kesava Sudheer
vs. Drugs Inspector (Ayurveda) Andhra Region, Indian Medicines and
Homeopathy Dept., Secunderabad and another in 2008(1) ALD (Crl.) 27 (A.P) and also a decision reported in N.Dandapani and another vs.
State of A.P. in 2005 (1) ALD (Crl.) 956 (A.P).
39. In a decision reported in G.L.Gupta vs. D.N.Mehta (1971) 3
SCR 748 observed that it will not be noticed that the word ‘company’ includes a firm or other association and the same test must apply to the director in charge and a partner of a firm in charge of a business.
40. It can be seen from Section 34(1) of the Drugs and Cosmetics
Act that every person who was incharge of and is responsible to the firm for the conduct of the business of the company is also liable along with the company for the offences committed. From the reading of the decisions, it is also clear that a partner of firm is liable to be convicted for an offence committed by the firm if he was incharge of and was responsible to the firm for the conduct of the business of the firm or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the partner concerned, under Section 34 of the Drugs and Cosmetics Act, 1940.
41. In a decision reported in Tumu Venkateswara Reddy vs.
State of Andhra Pradesh in 2010 (1) ALD (Crl.) 195 (A.P) held that:
“There is no provision in the Drugs and Cosmetics Act dealing with the case of partnership firm and its partners. Section 34 of the Act deals with offences by companies. Even under
Section 34 of the Act, it is only the person or persons who are in-charge of company and was responsible for conduct of business of the company as well as the company are deemed to be guilty of the offence, and not all persons connected with the company.
42. It can be seen from the record that P.W.1 has relied on
Ex.P34 partnership deed at page No.2 in point No.4 that A3 working partner of the firm shall be partner who attend and look after manufacturing process, issue of material and execution of supply as per orders of maintenance of stock and records. When Ex.P34 partnership clearly shows that A3 is to look after the manufacturing process, it 20 cannot be contended that he has no role for conduct of the manufacturing process of the company. It clearly establishes that A3 partner was incharge of the manufacturing process of the business. It can be seen from the record that on behalf of the complaint.
43. It is the contention of the appellant that the evidence of
P.W.1 shows that he has not sent any portion of the sample drawn to A6 and P.W.1 further deposed that he has no documentary proof to show that DM & HO, Cuddapah and Venkataramana Agencies has preserved the sample portion as per the label claim of the drug. The evidence of
P.W.1 in cross-examination shows that on 22-07-1998 he received the analyst report and sent the copy of analyst report to the manufacture and he has not sent the sample portion of the drug that was drawn along with Ex.P24 to the manufacturer and he admitted that vide Ex.P24 document he asked the manufacture to procure one sample portion of the drug either from DM & HO, Cuddapah or from Venkataramana
Agencies, Proddutur. The evidence of P.W.1 shows that he personally issued Ex.P14 notice to M/s.Venkataramana Agencies, Proddutur along with analyst report and a sealed portion said syrup sample under acknowledgment. The evidence of P.W.1 clearly goes to show that one sealed portion of the drug was restored to Cuddapah. As per section 23 of the Act, the Inspector shall restore one portion of the sample to the person from whom he takes it and the evidence of P.W.1 shows that he furnished one sample of portion to DM & HO, Cuddapah and one portion of the sample was sent to Government Analysis for test/analysis and one portion of the sample was sent to the Court and it is marked as M.O.1, whereas the other portion is concerned, Section 23 contemplates that it is to be sent to the person, if any whose name, address and the other particulars have been disclosed under Section 18(a). The evidence of
P.Ws.1 and 3 coupled with Ex.P7 letter shows that P.W.3 was asked to furnish original purchase invoices. The evidence of P.W.3 coupled with
Ex.P9 letter shows that they purchased the said drug from Andhra
Chemicals and Cosmetics, Vijayawada through their Authorised
Distributor M/s.Venkata Ramana Agencies. The evidence of P.W.2 the
Authorised agent of the Andhra Chemicals and Cosmetics, Vijayawada shows that he furnished Ex.P10 to P12 certified copies of invoices to establish that they purchased the same from A7 firm and it is 21 established from the record that M/s.Venkataramana Agencies is the authorized distributors of A7 firm. As per Section 18(a) every person not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof shall if so required disclose to the Inspector the name and address and other particulars of the person from whom he acquired the drug or cosmetic. The evidence of P.W.3 discloses that he informed P.W.1 about the purchase of the said drug from P.W.2 and in such a case, the Drug Inspector is supposed to serve the sample to the person whose name and address and other particulars have been disclosed and as such it cannot be said that P.W.1 is not supposed to serve the sample and report to P.W.2. The material on record shows that drug in question was manufactured in the month of March, 1998 and its expiry date was 8/99. The evidence plays on record shows that on 12- 08-1998 P.W.1 forwarded Ex.P24 notice to Ex.A7 firm informing that one sealed portion of the drug was restored to DM & HO, Cuddapah and another sealed portion of the drug was handedover to M/s.Venkata
Ramana Agencies and the true copy of the report was also forwarded and in the said facts of the case, it cannot be contended that the sealed portion of the drug is not available to A7 firm. Though it is contended that the analyst report not served upon appellant/A6, the service of analyst report and providing information to the A7 firm about the availability of the sample with DM & HO, Cuddapah and Venkata
Ramana Agencies, Proddutur, deemed to be the service of the same on the appellant/A6 who is working in the firm admittedly as on the date of offence and also as on the date of service of analyst report and sample.
In view of the same, it is not open to appellant/A6 to contend that one portion of the sample and report is to be sent to him.
44. It is contended on behalf of the appellant that the stockiest have to maintain the prescribed storage conditions all along, till the usage of drugs by the concerned and that the specific storage condition have to be complied with specifically and all the drugs as a matter of course cannot be exposed to heat, light, moisture and other hygienic condition. It is the objective satisfaction of the Drug Inspector to satisfy himself. It is relevant to note P.W.1 stated in cross-examination that synomol syrup (paracetomol syrup) can be preserved at room temperature and the conditions that are required for preservation of 22 sample is as per the label claim of the drug. In this regard P.W.3 stated in cross-examination that synomol syrup can be stored in room temperature and the label claim of synomol syrup discloses the storage condition as room temperature and the room temperature is treated between 25 degrees to 35 degrees centigrade. Nothing was elicited in the cross-examination of P.W.1 and P.W.3 to show that the storage conditions were not properly maintained and though P.W.3 was cross- examined, nothing was elicited to come to a conclusion that there are no proper storage conditions in the Government Civil Dispensary. In absence of such evidence on record, basing on the oral submissions made by counsel appearing for the appellant, this Court finds it difficult to observe that the storage conditions in the dispensary are bad.
45. The learned counsel for the appellant contended that A6 never worked in A7 firm as analytical chemist. The said contention is raised also before the Trial Court. After careful perusal of Ex.A27 and
Ex.P32 consent letters of the technical staff clearly shows that A6 was analyst chemist in A7 firm at the time of manufacturing of drug in question and as such in view of the same, this Court is of view that the finding given by the Trial Court in this regard can be accepted.
46. After careful reading and appreciation of the evidence on record, this Court is of view that the drug sample of synomol syrup collected by P.W.1 from the stores of District Medical Health Officer,
Cuddapah was manufactured by A7 firm and the public analyst report clearly establishes that it is not of standard quality as defined in Drugs and Cosmetics Act and Rules thereunder and it does not confine to the labeld claim in respect of paracetemol content and the evidence on record shows that A3 appellant is the partner of A7 firm who involved in conduct of manufacturing process of the drug,that A6 appellant is the analytical chemist of the A7 firmand the prosecution is able to establish the guilt of A6 is beyond reasonable doubt.
47. Upon considering the material on record and re-appreciation of the evidence, this Court finds that there are no substantial and compelling and good reasons for interference on the finding given by the
Trial Court. For the reasons stated above at any stretch of imagination, it cannot be concluded that the Trial Court has given perversed reasons and it is a fit case to give proper weight and consideration to the findings 23 of the Trial Court and there is absolutely no infirmity or illegality found in the judgment of the Trial Court warrants the interference.
48. Upon considering the entire material on record, this Court is of view that the prosecution is able to establish the guilt of the accused
No.6/appellant beyond reasonable doubt.
49. The learned counsel for the appellant contended that the
Trial Court imposed fine of Rs.20,000/- and it is contrary to law. He submitted that the Drugs and Cosmetics Act, 1940 had been amended on 10th August, 2009 and it was effected from the date of 10th August, 2009 under Act, 21/2008. As seen from the record, the Drug Inspector collected the sample of drug by name synomol syrup on 10-06-1998 and the said drug is said to be manufactured in the month of March, 1998 and in view of the same, the offence committed before commencement of the amended act 21/2008 and as such, this Court is of view that the
Trial Court at best could have imposed fine of Rs.10,000/- only but not
Rs.20,000/-.
50. As seen from the record, C.C. is numbered in the year 1999 and since then the appellant is attending the Court. Already 20 years lapsed. There is nothing on the record to suggest that the delay occurred in disposal of C.C. and appeal for the reasons attributable to the appellant. When asked about the quantum of sentence, appellant stated
before the Trial Court that he is suffering from spondlites and he
requires constant medical monitoring and he is having wife and son.
51. The same Trial Court in C.C.No.318/2011 in its judgment
dated 29-12-2017 sentenced the present accused to undergo simple
imprisonment for a period of 3 months by recording the reasons that accused is suffering from spondelites and he requires constant medical monitoring and he is having wife and children he has been rallied rounds the Courts for the last 15 years and against the said judgment, the accused preferred appeal before this Court in Crl.A.No.26/2018 which stands for judgment today before this Court and the complainant therein has not preferred the appeal against the Trial Court judgment questioning the quantum of sentence.
52. Considering the fact that the nature of the offence and the grounds for awarding lesser sentence are similar to the facts of this case and the accused is also one and the same, by considering all the above 24 circumstances, this Court finds that imposition of the sentence of simple imprisonment for a period of THREE MONTHS and imposition of fine of
Rs.10,000/- (rupees ten thousand only) is just and reasonable in the facts of the case.
53. In the result, the Criminal Appeal is dismissed confirming the judgment dated 28-08-2017 in C.C.No.1382/2004 on the file of
II Additional Judicial Magistrate of I Class, Eluru convicting the accused (A6) for the offence under Section 18(a) (i) punishable under
Section 27(d) of Drugs and Cosmetics Act and the accused is convicted under Section 255(2) Cr.P.C. and modifying the sentence of imprisonment from ONE YEAR to THREE MONTHS and modifying the payment of fine amount from Rs.20,000/- to Rs.10,000/-. The accused is entitled to refund of the excess fine amount of Rs.10,000/- which he already paid after expiry of appeal time.
As the accused already paid the fine amount, no need to pass default sentence.
Dictated to the Stenographer Grade-I directly on computer,
corrected and pronounced by me in the open Court, this the 25th day of February, 2021.
Sd/-T.Mallikarjunarao
I ADDITIONAL SESSIONS JUDGE,
WEST GODAVARI, ELURU.
25-02-2021
The appellant/6th accused shall serve the imprisonment imposed by the Trial Court which is modified by this Court for which purpose he shall be taken into custody. The copy of judgment is supplied to the appellant and he is informed about the legal aid facility and opportunity of taking to the matter in Revision to the Hon'ble High Court, if he intends. Id/-T.M.R.
I ADDL. SESSIONS JUDGE,
WEST GODAVARI, ELURU.
APPENDIX OF EVIDENCE
NIL
Copy to:
1. The Hon’ble Registrar (Judicial), High Court of Andhra Pradesh, Nelapudi
2. Additional Judicial Magistrate of I Class, Eluru
3. The Additional Public Prosecutor, Eluru.
25 //T.C.F.B.O.//
Sr. Superintendent
I A S J Court, Eluru.
// True Copy //
I ADDL. SESSIONS JUDGE,
WEST GODAVARI, ELURU.