THE BOMBAY DRUGS (CONTROL) ACT, 1959

[Bombay Act No. XI 1960]

[9th February, 1960]

Adapted   and   modified by the   Maharashtra Adaptation of Laws (State and Concurrent Subjects) Order, 1960. Amended by Mah. 51 of 1971. Amended by Mah. 52 of 1973 (14-1-1974)²

An Act to provide for the control, in the interests, of the general public, of the sale,   possession, transport and use of certain drugs.

WHEREAS it is expedient to provide for the control, in the interests of the general public, of the sale, possession, transport and use of certain drugs, and for certain other purposes ; It is hereby enacted in the Tenth Year of the Republic of India as follows :—

SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT

(1)   This Act may be called the Bombay Drags (Control) Act, 1959.

(2)    It extends to   the whole   of   the'[State of Maha­rashtra].

(3)    It shall come into force on such date ²as the State Government   may, by notification   in   the Official Gazette, appoint.

SECTION 02: DEFINITIONS

In this Act, unless the context other­wise requires -

(a) "Collector" includes any person appointed by the State Government to exercise all or any of the powers, or to perform or discharge all or any of the   duties or functions, of a Collector under this Act;

(b) "dealer"   means   a   licensed   wholesaler, or licensed retailer ;

⁸[(c) "Commissioner" means the Commissioner of Prohibition and Excise appointed under the Bombay Prohibition Act, 1949 and includes any officer on whom the State Government may confer all or any of the powers, duties and functions of the Commissioner under this Act;]

(d) "drug" means (i) a medicine for internal or external use of human beings or animals, or (it) substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals, to which medicine or substances this Act is   declared   to be applicable under sub-section (1) of Section 6;

(e)    "household"  means a group of persons nor­mally residing and messing jointly as members of one domestic unit, but does not include a servant ;

(f) "licensed retailer" means a retailer holding a licence under section 7 ;

(g) "licensed   wholesaler"   means   a  wholesaler holding a licence under section 7 ;

(h) "medical practitioner" means a person who practises any system of medicine (including surgery and obstetrics) and is registered in any register, or is entered on any list, maintained under any law for the time being in force which entitles him to practise in the State, or is otherwise by or under any such law entitled or allowed to practise in the State; and includes a registered dentist within the meaning of the Dentists Act, 1948, and also a registered veterinary practitioner within the meaning of the Bombay Veterinary Practitioners Act, 1953, or any law corresponding thereto in force in any part of the State;

(i) "notified drug" means a drug which has been notified by the State Government to be a notified drug under Section 6 ;

(j) "prescribed" means prescribed by rules made under this Act ;

(k) "prescription" means a prescription issued by a medical practitioner ;

(1) "retailer" means a person who carries on the business of selling any notified drug otherwise than by whole­sale, and does not include a medical practitioner ; and the expression "to sell by retail" shall be construed accordingly;

(m)   "State" means the *[State of Maharashtra];

(n) "to transport" means to move, from one place to another, within the State;

(o) "wholesaler" means a person who carries on the business of selling any notified drug for the purpose of resale; and the expression "to sell by wholesale" shall be construed accordingly,

1.    These words were substituted   for the   words "State of Bombay" by the Maharashtra   Adaptation   of Laws   (State and Concurrent Subjects) Order, 1960.

2.    1st day of January, 1962 (vide G.N., H.D., No. BDC. 1059/37596-III, dated 18th November, 1961).

3.    This clause was substituted by Mah. 52 of 1973, s. 3, Sch.

SECTION 03: [COMMISSIONER] OF PROHIBITION AND EXCISE

The *[Commissioner] shall   be subject  to  the control of the State Government  and   shall,   subject   to such general or special orders as the State Government may, from time to time, give or issue, exercise such powers,  perform  such duties and dis­charge such functions as are conferred or imposed upon him, by or under the provisions of this  Act and he shall superin­tend the administration and carry out generally the provisions of this Act.

SECTION 04: POWERS OF COLLECTOR

(1) A Collector shall, with­in the limits of his jurisdiction, exercise such powers, perform such duties, and discharge such functions, as are conferred or imposed upon him by or under the provisions of this Act.

(2) The State Government may, by notification in the Official Gazette, appoint any person other than the Collector to exercise in any district or place all or any of the powers and perform all or any of the duties and functions as are assigned by or under this Act to a Collector subject to such control, if any, in addition to that of the *[Commissioner] and of the State Government as the State Government may from time to time direct.

SECTION 05: CONTROL OF THE *[COMMISSIONER] ON OFFICERS EMPOWERED UNDER THIS ACT

In the   exercise   of their powers and the performance or discharge of their duties and functions under the provisions of this Act, or the rules or orders made thereunder, all officers empowered under this Act shall, subject to the general or   special   orders   of the   State Government, be subordinate to and under the control of the *[Commissioner]and shall be bound to follow such orders as he may from time to time give or issue.

SECTION 06: DRUGS TO WHICH THIS ACT APPLIES AND NOTIFIED DRUGS

(1) The State Government may, by notification in the Official Gazette, declare any drug to be a drug to which this Act applies.

(2) If the State Government is satisfied that a drug is used in a manner injurious to health, the State Government may, by notification in the Official Gazette, specify such drugs as a notified drug.

SECTION 07: REGULATION OF BUSINESS OF WHOLESALER OR RETAILER IN NOTIFIED DRUGS

From such date as may be fixed by the State Government   by   notification   in the  Official Gazette in this behalf, no person shall carry on the  business  of a wholesaler or retailer in any notified drug except  under,  and in   accor­dance with, the terms and conditions of a licence granted by the Collector under this Act.

SECTION 08: SALE BY RETAILER

No licensed retailer shall sell any notified drug unless such drug has been obtained by him from a licensed wholesaler.

SECTION 09: POWER OF DEALER TO   SELL TO  MEDICAL PRACTITIONER AND PERSON AUTHORISED UNDER SECTION 14 ; SALE BY MEDICALS PRACTITIONER

(1)  Subject to the provisions of Section 10, a dealer may sell any notified drug to a medical practitioner, or to a person authorised under Section 14.

(2)  No medical practitioner shall sell any notified drug unless the drug has been obtained by him from a dealer.

SECTION 10: MAXIMUM QUANTITY OF SALE BY DEALER

No dealer shall sell by   wholesale or retail, in   any one transaction, any notified drug to any person  in excess of such quantity  or quantities as the State Government may, by notification in the Official Gazette, determine for the purpose :

Provided that, in determining the maximum quantity of a notified drug which may be sold, the State Government may fix different maxima for the sale of different notified drugs, and in respect of sales by different classes of wholesalers and retailers to different persons or classes of persons.

SECTION 11: LICENSED RETAILER AND MEDICAL PRACTITIONER NOT TO SUPPLY NOTIFIED DRUG FOR PURPOSES OTHER THAN MEDICINAL AND EXCEPT UNDER PRESCRIPTION

(1) A licensed retailer shall not supply any notified drug in his possession to any person (not being a medical practitioner or a person duly authorized under Section 14) for a purpose other than a bona fide medicinal purpose, and except on a prescription issued by a medical practitioner.

(2) A medical practitioner shall not supply any notified drug in his possession to any person for a purpose other than a bona fide medicinal purpose, and except under a prescription issued, by him or another medical practitioner.

(3) Any prescription   issued   for the purpose of sub­section (1) or (2) or copies thereof and other records shall be maintained in such manner, and preserved for such period, as may be prescribed.

SECTION 12: REGULATION OF POSSESSION OF NOTIFIED DRUG

(1) Subject to the provisions of Section 14, no person shall have in his possession any notified drug—

(a) (i)   if  he   be a dealer, at any one time or during such period or periods   as  the State Government may specify, or

(ii) if he be a medical practitioner, at any one time save with the previous permission of the Collector in writing, in excess of such quantity or quantities as the State Govern­ment may, by notification in the Official Gazette, determine in this behalf;

(b) if he is not a dealer  or medical practitioner, in excess of such   quantity as has   been at any one time dispensed or sold on prescription for a bona-fide medicinal use to him or to a member of his household, except under a per­mit granted by an officer duly empowered by the State Government in this behalf : Provided that nothing in this clause shall apply to a traveller entering the State from any place outside it and possessing a notified drug for bona-fide medicinal use of himself or of the members of his household, accompanying him.

(2) In fixing the maximum quantity of a notified drug which may be possessed under this section the State Govern­ment may fix different maxima for the possession of different notified drugs, and in respect of their possession by different classes of wholesalers and retailers.

SECTION 13: REGULATION OF TRANSPORT OF NOTIFIED DRUGS

Subject to the provisions of this section and section 14, no person -

(a) being a dealer, shall transport any notified drug, except under a pass granted by an officer duly em­powered by the State Government in this behalf;

(b)    being a medical   practitioner,  shall transport any notified drug in excess  of the  quantity   which he is per­mitted to possess under the   provisions   of clause (a) of sub­section (1) of Section 12 ;

(c)    being a person other than a dealer or medical practitioner, shall transport any notified drug in excess of the quantity which has been at and one time dispensed or sold on prescription for the bona-fide medicinal use of himself or of a member of his household, except under a pass granted by an officer duly   empowered by   the State Government in this behalf:

Provided that, nothing in this section shall apply to —

(a)    a traveller entering the State from any place outside   it.   and   possessing   a   notified   drug  for bona-fide medicinal use of himself  or of a member   of his   household accompanying him ; or

(b)    through transport of any notified drug from a place outside the State of Bombay,* to another place outside thereof.

SECTION 14: REGULATION OF POSSESSION OR TRANSPORT OF NOTIFIED DRUGS BY CERTAIN PERSONS

Notwithstanding anything contained in Section 12 or 13, the Collector may, by a general or special order, authorise—

(a)    any   person in charge   or management of a hospital or dispensary, to possess or transport,

(b)    any person in charge of an educational   insti­tution, to possess or transport for use for educational purposes only,

(c)    any person   engaged in  scientific research, to possess or transport for use for scientific research only,

(d)    a pilot of an aircraft, to possess or transport for use in an emergency on the aircraft,

(e)    any person in charge of an ambulance or first-aid station or first-aid box, to possess or transport for use in an emergency,

(f)    a chemist to   possess or  transport, for use in dispensing as an ingredient of a medicine,

(g)    any manufacturer of a medicine to possess or transport, for use in the manufacture thereof, any notified drug in such quantity, in  such  manner, and sub­ject to such conditions as may be specified in such order.

SECTION 15: SALE, POSSESSION AND TRANSPORT OF NOTIFIED DRUG BY ANY PERSON ON ACCOUNT OF ANOTHER

(1) Whenever any notified drug is sold, possessed or transported by any person on account of any other person, and such person knows or has reason to believe that such sale, possession or transport is on his account, the notified drug shall for the purposes of this Act be deemed to have been sold, possessed or transported also by such other person.

(2) Nothing in sub-section (1) shall absolve any per­son from liability to any punishment under this Act for the unlawful sale, possession or transport of such notified drug.

SECTION 16: REGULATION OF SALE, ETC., OF NOTIFIED DRUGS FOR PUR­POSES OF SAMPLE

Nothing in this Act shall apply to the sale, possession or transport in the normal course of business by a bona-fide chemist,   druggist or   manufacturer of drugs or by his servant or agent duly authorised by him  in this behalf of any   notified   drug,   not exceeding   such quantity as may be prescribed, for the purposes of sample.

SECTION 17: SALE MEMORANDUM TO BE GIVEN IN RESPECT OF SALES

(1) Every dealer when selling any notified drug shall give to the purchaser a memorandum of sale containing particulars of the sale, and obtain the purchaser's signature on the counterfoil of such memorandum.

(2) The State Government may, by notification in the Official Gazette, prescribe the other particulars to be contained in such memorandum of sale and counterfoil thereof.

SECTION 18: POWER TO SUSPEND OR CANCEL LICENCE, ETC

(1)   The Collector may, after giving the holder of a licence, permit or pass granted or issued   under   this Act, a reasonable oppor­tunity of being heard,   suspend   such licence, permit or pass for such period as may be necessary, or cancel the same,—

(a)    if any   fee payable by the holder thereof has not been duly paid ;

(b)    in   the event of any breach by the holder of such licence, permit or pass or by his servant or anyone with his express or implied permission  on his behalf of any of the terms and conditions of such licence, permit or pass;

(c) if the holder of such licence, permit or pass or any person in the employ of such holder, or any person acting with his express or implied permission on his behalf, is convicted of an offence under this Act, or if the holder thereof is convicted of an offence, under the Bombay Prohibi­tion Act, 1949, or under the Dangerous Drugs Act, 1930, or the Drugs Act, 1940.

(2)    If  the   licence,   permit   or pass is suspended or cancelled   for   any   reason,   the   holder thereof shall not be entitled to any compensation for such suspension or cancella­tion, or to the refund of any fee paid in respect thereof.

(3)    The Collector may refuse to grant a licence, permit or pass to any person if—

(a)    a   licence,   permit   or   pass granted to such person under   this   Act has been previously suspended or cancelled, or

(b)    such person has been convicted of any offence punishable under this   Act,   or the Bombay Prohibition Act, 1949 or under the Dangerous   Drugs Act, 1930, or the Drugs Act, 1940.

(4)    The Collector may  also refuse to grant of licence, permit or pass to any firm of which the   person referred to in sub-section (3)   is   a   partner, or to any person to whom the business of such person has been transferred.

SECTION 19: EVASION OF PROVISIONS

No person shall wilfully-

(a)    give any false information, or

(b)    refuse    to   give    any   information   lawfully demanded from him under this Act or   the rules   or   orders made thereunder, or

(c)    with   a   view to preventing the disclosure of any   information   contained  therein alter by cancellation, or otherwise destroy,   mutilate   or   deface any book,  register, licence, permit, pass or other document.

SECTION 20: POWER TO OBTAIN INFORMATION

The *[Commissioner] or Collector or   any   officer empowered in this behalf by the State Government may, by order, direct any person to furnish to any specified   authority   or   person, any such information in his possession   concerning   any notified drugs,  as may be specified in the order.

SECTION 21: PENALTY

(l) Whoever contravenes any of the provisions of this Act or of any rule, order or notification made or issued thereunder, or fails to comply with any direc­tion made under authority conferred by this Act, shall, on conviction be punished—

(i) for a first offence, with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees ;

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees ;

(ii) for a second offence, with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees :

Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than six months and fine shall not be less than one thousand rupees;

(iii) for a third or subsequent offence, with impri­sonment for a term which may extend to three years and with fine which may extend to five thousand rupees :

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and fine shall not be less than two thousand and five hundred rupee.

(2) In the event of any breach by the holder of any licence, permit or pass granted under this Act or by his servants or by   any person acting with his express or implied permission on his behalf of any of the terms or conditions of such licence, permit or pass, such holder shall, in addition to the cancellation or suspension of the licence, permit or pass granted to him, be punished, on conviction, with imprison­ment fora term which may extend to six months or with fine which may extend to five hundred rupees or with both, unless it is proved that all due and reasonable precautions were exercised by him to prevent any such breach.

Any person who commits any such breach shall, whether he acts with or without the permission of the holder of the licence, permit or pass, shall be liable to the same punishment.

SECTION 22: OFFENCES BY COMPANIES

(1) If the person committing an offence under this Act is a company, the company as well as every person incharge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that, nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was, committed without his know­ledge, or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company, and it is proved that the offence has been commit­ted with the consent or connivance of or that the commission of the offence is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation:—For the purposes of this section,—

(a)    "company" means by any body corporate and includes a firm or other association of individuals, and

(b)    "director"   in   relation   to   a   firm means a partner in the firm.

SECTION 23: MAGISTRATE'S POWER TO IMPOSE HIGHER PUNISHMENT

Notwithstanding anything contained in section 32 of the Code of Criminal Procedure, 1898, it shall be lawful for any Presidency Magistrate or a Magistrate of the First Class specially empowered by the State Government in this behalf to pass any sentence authorised under section 21 in excess of his powers under section 32 of the said Code.

SECTION 24: THINGS LIABLE TO CONFISCATION

Whenever   any offence punishable under this Act has been committed—

(a)    any   notified   drug in   respect   of which the offence has been committed ;

(b)    any notified drug lawfully   transported   or in the possession of the offender along with, or in   addition to, the notified drug in respect of which   the   offence   has   been committed ;

(c)    the receptacles, packages   and   coverings   in which any notified drug referred to in clause (a) or clause (b), is found and the other contents, if any, of  such   receptacles, packages and coverings, and  the   animals,   carts,   vessels or other conveyance used in carrying any such notified drug, shall be liable to confiscation.

SECTION 25: PROCEDURE IN CONFISCATION

(1)   Where during the trial of a case for an offence under this Act, the Court decides that anything is liable to confiscation   under   Section  24, the Court may, after hearing the   person,   if  any,   claiming any right thereto and the evidence, if  any, which   he produces in support of his claim, order confiscation or in the case  of any article other than a notified drug give the owner an option to pay such fine as the Court deems fit in lieu of confiscation:

Provided that, no animal, cart, vessel,   vehicle or other conveyance shall be confiscated if the owner thereof satisfies the Court that he had exercised due   care  in   preventing the commission of the offence.

(2) Where an offence under this Act has been committed, and the offender is not known or cannot be found, or where anything liable to confiscation under this Act if found or seized, the Director, Collector or any other officer autho­rised by the State Government in this behalf may make an inquiry and, if after such inquiry is satisfied that an offence has been committed, may order the thing found or seized to be confiscated:

Provided that, no such order shall be made before the expiry of one month from the date of finding or seizure, or without hearing the person, if any, claiming any right thereto and the evidence, if any, which he produces in support of his claim.

(3) Where any article found or seized under this section is liable to speedy and natural decay, or if the Court, Director, Collector, or the officer authorised by the State Government in this behalf, is of opinion that the  sale  would

be for the benefit of the owner, the Court, Director, Collector, or the officer, may at any time direct it to be sold, and the provisions of this section shall apply so far as may be to the net proceeds of the sale :

Provided that, in the case of anything liable to speedy and natural decay, the Court or officer concerned may order it to be destroyed   if  in  its or his   opinion   such   order is expedient in the circumstances of the case.

SECTION 26: INSPECTORS AND PROCEDURE

(1) For the purposes of this Act, the Director may, be notification in the Official Gazette, appoint such persons or officers as he thinks   fit, to be Inspectors within such local limits  as he may   assign   to them.

(2)   No offence under this Act shall   be  investigated except by an Inspector appointed under sub-section (1).

SECTION 27: NO PROSECUTION WITHOUT SANCTION

No prosecution for any offence punishable under this Act shall be  instituted, except with the   previous   sanction [in any area for which a Commissioner of Police is appointed, of the Commissioner of Police] and elsewhere of the District Magistrate.

SECTION 28: POWER TO  SEARCH   AND   SEIZE

An Inspector may enter and search any place in which he has  reason to believe that an offence under this Act,   has been, or is   being   or is likely to be, committed, and may seize any notified drugs and other things which he has reason   to believe to be   liable   to confiscation   under   this   Act, and   any   document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act ; and he may detain and search any person whom he has reason to believe to have committed an offence   punishable under   this Act.

SECTION 29: POWER TO SEARCH AND SEIZE NOTIFIED DRUGS, ETC., IN OPEN PLACE

An Inspector or any person   authorised in  this behalf by the State Government, may—

(a)    seize in any open   place, or in   transit,   any notified drug or any other   thing which   he   has   reason   to believe to be liable to confiscation under this Act;

(b)    detain and search any   person whom   he has reason to believe to have   committed   an offence punishable under this Act, and if such   person has any  notified   drug or any other thing in his   possession,   which he   has   reason to believe to be liable to confiscation under this Act, seize it.

SECTION 30: PROCEDURE FOR SEARCH AND SEIZURE

The provisions of the Code of Criminal Procedure, 1898, shall, so far as may be applicable, apply to any search or seizure under this   Act as they apply to   any  search   or   seizure   made   under   the authority of a warrant issued under Section 98 of that Code.

SECTION 31: POWER TO INSPECT   PREMISES OF  LICENSED DEALERS

(1)   The Director or Collector, or any officer duly authorized in this behalf by the State Government, may—

(a)    require a dealer, or a person  in  the   employ of such dealer or acting with his express or implied permission on his behalf, to produce the   licence issued   under   this Act under which he carries   on the   business of a   wholesaler or retailer in notified drugs ;

(b)    enter and inspect, at any time by day or night, any shop or premises in which a dealer   or   medical   practi­tioner   stores    or   sells   or      dispenses     notified    drugs, and examine,  test,   measure   or   weigh   any  stock   of any such notified drugs or cause any such stock to be examined, tested, measured or   weighed   and   may take a   sample   (on payment therefor) for the purpose in   accordance with   rules made in that behalf.

(2) If such officer finds that the holder of a licence issued under this Act, or a person in the employ of such holder, or acting with his express or implied permission on his behalf, wilfully does, or omits to do, anything which is an offence under this Act, such officer may seize any stock of notified drug in respect of which the offence is committed, and shall forthwith send a report to his official superior for such action as he deems fit.

SECTION 32: APPEALS

(1) All orders passed under this Act by any officer other than the Collector or the Director, shall be appealable to the Collector, at any time within sixty days from the date of the order complained of.

(2) All   orders   passed   by   the   Collector   and   the Director shall be appealable to the   Director   and   the  State Government, respectively, at any   time   within  ninety   days from the date of the order complained of:

Provided that, no appeal shall   lie   against   an   order passed by the Director on appeal.

(3) Subject to the foregoing   provisions,   in   deciding appeals under this section,   the   Collector and the   Director shall follow such procedure as may be prescribed.

SECTION 33: REVISION

The State Government   may call   for and   examine the record of any proceedings before any officer exercising any power or   performing or discharging any duty or function under this   Act  (including   that   relating   to the grant or refusal of a licence, permit or pass),  for the purpose of satisfying itself as to the correctness,   legality or propriety of any order passed in,   and  as to   the   regularity   of,   such proceedings, and may either annul, reverse, modify or confirm such order, or pass such other order as it may deem fit.

SECTION 34: BAR OF PROCEEDINGS

No suit or proceeding   shall lie against the Government or against   any officer or   against any person empowered to   exercise powers   or   to   perform duties or discharge functions under this Act, for   anything in good faith done or purporting to be done under this Act;

SECTION 35: PUNISHMENT FOR VEXATIOUS ENTRY, SEARCH OR SEIZURE

Any Inspector or person authorised by the State Government under Section 29, who —

(a)    without   reasonable   grounds   of    suspicion enters or searches or causes   to be   entered or searched,  any building, vessel or place ; or

(b)    vexatiously and unnecessarily seizes the  pro­perty of any person on the   pretence   of seizing or  searching for any notified drug or other article liable to be confiscated under Section 24 or of seizing any document or other  article liable to seizure under section 28 or 29 ; or

(c)    vexatiously   and    unnecessarily   detains   or searches any person, shall be punished with fine which may extend to five hundred-rupees.

SECTION 36: LIMITATION OF PROSECUTIONS OR SUITS AGAINST OFFICERS

All prosecutions  of  any   officer   or   person   empowered to exercise powers or to perform duties or discharge functions under this Act, and all actions which may be lawfully brought against the Government or any of the aforesaid officers or persons in respect of anything done or alleged to have been done in pursuance of this Act, shall be instituted within four months from the date of the act complained of, and not afterwards ; and any such action shall be dismissed —

(a)    if the plaintiff does not prove that, previously to bringing such action, he has  presented all such appeals or applications for revision allowed   by or under  this Act or by or under any other law for the time being in force, as   within the aforesaid period   of  four   months   it   was   possible   to present ; or

(b)  in the case of an action for damages, if the tender of sufficient amends has been   made before   the   action   was brought, or if after the institution of the   action a   sufficient sum of money is paid into Court with costs, by or on behalf of the defendant.

SECTION 37: GENERAL   POWERS OF STATE GOVERNMENT

Notwithstanding anything contained in this Act or the rules, notifica­tions or orders made or issued thereunder, the State Govern­ment may, by general or special order,—

(a)    exempt, subject to such conditions as it  may deem fit to impose, any person or class   of  persons,   or any institution or class of institutions, from the operation   of all any of the provisions of the Act, or any rules or orders made, or any condition of a licence, permit or pass   granted,   there­under ;

(b)    prescribe the number of  places at which any notified drug specified in such order may be sold in any area;

(c)    prescribe the procedure to be followed before granting any licence, pass or permit;

(d)    specify   the   persons or classes of persons to whom licences   or   permits or   passes under this Act may or may not be granted ;

(e)    issue such   other   instructions  in any matter pertaining to the grant or   otherwise of  licences, permits or passes under this Act as it may deem proper ;

(f)    prohibit   the   disposal   of  any notified drug except in such circumstances,   and under such conditions, as may be specified in the order ;

(g)    direct   the   sale of  any notified drug to any dealer or class of dealers, and in such   quantities   as  may be specified in the order ; and

(h) issue such further directions as appear to it to be necessary or expedient in connection with any order made under this section.

SECTION 38: DELEGATION

The   State   Government   may, by notification   in the   Official Gazette,   direct that any  power exercisable by it or   by the   Director or Collector under this Act   shall, subject   to such   conditions   (if any)   as   may be specified in the notification, be exercisable also by any officer specially empowered in this behalf by the State Government.

SECTION 39: PROVISIONS OF THIS ACT NOT TO APPLY TO NOTIFIED DRUGS WHICH   ARE   THE   PROPERTY   OF GOVERNMENT

Save   as may be expressly provided in any rule or order made under this Act, nothing in this Act shall apply to notified drugs which are the property of, and in the possession of or on behalf of, Govern­ment:

Provided that, such drugs shall not be sold or delivered to any person who, under the provisions of this Act or under any rules or orders made thereunder, is not entitled to their possession.

SECTION 40: POWER TO MAKE RULES

(1)   The State Govern­ment may make rules to carry out the purposes of this Act.

(2) In particular, but without prejudice to the generality of the forgoing power, such rules may provide for all or any of the following matters, namely:—

(a)    the   manner in  which prescriptions  or copies thereof and other record shall be  maintained, and  the period for which they shall  be preserved,  by   medical practitioners and licensed retailers, under Section 11 ;

(b)    prescribing the quantity  of notified drug for the purposes of sample under Section 10 ;

(c)    prescribing   the   other particulars to be con­tained in a memorandum of sale under Section 17 ;

(d)    the manner in which, and conditions subject to which, samples may be taken and the procedure to be followed therefor under clause (b) of sub-section (1) of Section 31;

(e)    prescribing the   procedure   to be followed in deciding appeals under Section 32 ;

(f) prescribing the number of places at which any notified drug may be sold in any area and the procedure to be followed before granting licences, permits and passes ;

(g) prescribing the forms of licences, permits or passes granted under the Act, the terms and conditions on which such licences, permits or passes may be granted, the forms of applications for such licence, permits or passes, and the fees payable in respect thereof ;

(h) the maintenance and preservation by dealers generally, or by any class of dealers of records and accounts of all sale and purchase transactions made by them, or of the stocks of notified drugs in their possession ;

(i) the furnishing of any such information as may be required with respect to the business or profession carried on by any dealer or any medical practitioner ;

(j) prescribing the accounts to be maintained and the returns to be submitted by a licence-holder, pass-holder, permit-holder or medical practitioner ;

(k) the inspection of any books of accounts or other documents relating to notified drugs belonging to or under the control of any dealers or medical practitioners;

(1) the regulation or prohibition of the transfer of licences ;

(m) requiring the entering of the names and addresses, and the taking of signatures of purchasers in the register of sale of any notified drug ;

(n)   the disposal of confiscated articles ;

(o) any other matter which is to be or may be prescribed under this Act.

(3)    The power to make rules under this section shall be subject to the condition of previous publication:

Provided that, any such rules may be made without previous publication, if the State Government considers that they should be brought into force at once,

(4)    All rules made under this Act shall be laid for not less than thirty days before each House of the State Legislature as soon as may be after they are   made,   and shall be subject to   such   modifications as   the   State Legislature may make during the session in which they are so   laid   or   the  session immediately following.

SECTION 41: REPEALS AND SAVINGS

On and from the commen­cement of this Act, the Bombay Drugs (Control) Act, 1952, the Central Provinces and Berar Drugs (Control) Act, 1949, the Saurashtra Drugs (Control) Ordinance, 1949 and the Drugs (Control) Act, 1950, in its application to the Kutch area of the State of Bombay shall stand repealed :

Provided that such repeal shall not affect or be deemed to affect—

(a)    the previous operation of any law so repealed or anything duly done or suffered thereunder ;

(b)    any   right,   privilege,   obligation   or liability already   acquired,   accrued   or   incurred   under   any law so repealed, or

(c)    any    penalty,     forfeiture,     or    punishment incurred in respect of any offence   committed against any law so repealed ;

(d)    any investigation, legal  proceeding or remedy in respect of any   such right,   privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed:

Provided further that, subject to the preceding proviso, anything done or any action taken (including any appoint­ment, notification, order, direction, rule or form made or issued, or cash memorandum given) under any law so repealed shall in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done, taken, issued or given under the provisions of this Act and shall continue in force accordingly unless and until it is superseded by anything done or action taken under this Act.

SECTION 42: SAVING OF OTHER LAWS

Subject to the provisions of Section 41, the provisions   of this   Act shall be in addition to, and not in derogation of, any other law for the time being in force relating to any matters dealt with in this Act.