DRUGS AND COSMETICS ACT, 1940

Preamble 1 - DRUGS AND COSMETICS ACT, 1940

 THE DRUGS AND COSMETICS ACT, 1940

[Act, No. 23 of 1940][1]

[10th April, 1940]

PREAMBLE

An Act to regulate the import, manufacture, distribution and sale of drugs[2][and cosmetics].

WHEREAS it is expedient to regulate the[3][import, manufacture, distribution and sale] of drugs[4][and cosmetics];

AND WHEREAS the Legislatures of all the Provinces have passed resolutions in terms of section 103 of the Government of India Act, 1935 in relation to such of the above-mentioned matters and matters ancillary thereto as are enumerated in List II of the Seventh Schedule to the said Act;

It is hereby enacted as follows:--

Section 1 - Short title, extent and commencement

(1)     This Act may be called the Drugs[5][and Cosmetics] Act, 1940.

(2)     It extends to the whole of India[6][* * *].

(3)     It shall come into force at once; but Chapter III shall take effect only from such date[7]as the Central Government may, by notification in the Official Gazette, appoint in this behalf, and Chapter IV shall take effect in a particular State only from such date6 as the State Government may, by like notification, appoint in this behalf:

[8][Provided that in relation to the State of Jammu and Kashmir, Chapter III shall take effect only from such date[9]after the commencement of the Drugs and Cosmetics (Amendment) Act, 1972 (19 of 1972), as the Central Government may, by notification in the Official Gazette, appoint in this behalf.]

Section 2 - Application of other laws not barred

The provisions of this Act shall be in addition to, and not in derogation of, the Dangerous Drugs Act, 1930 (2 of 1930), and any other law for the time being in force.

Section 3 - Definitions

In this Act, unless there is anything repugnant in the subject or context,--

[10] [(a) "[11] [Ayurvedic, Siddha or Unani] drug" includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of [12] [disease or disorder in human beings or animals, and manufactured] exclusively in accordance with the formulae described in, the authoritative books of [13] [Ayurvedic, Siddha and Unani Tibb system of medicine], specified in the First Schedule;]

[14] [(aa) "the Board" means--

(i)       in relation to [15] [Ayurvedic, Siddha or Unani] drug, the [16] [Ayurvedic, Siddha and Unani Drugs Technical Advisory Board] constituted under section 33C; and

(ii)      in relation to any other drug or cosmetic, the Drugs Technical Advisory Board constituted under section 5;]

[17] [[18] [(aaa)] "cosmetic" means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic [19] [* * *];]

[20] [(b) "drug" includes--

[21] [(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;]

(ii)   such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of [22] [vermin] or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;]

[23] [(iii) all substances intended for use as components of a drug including empty gelatin capsules; and

(iv)   such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;]

[24] [(c) "Government Analyst" means--

(i)       in relation to [25] [Ayurvedic, Siddha or Unani] drug, a Government Analyst appointed by the Central Government or a State Government under section 33F; and

(ii)      in relation to any other drug or cosmetic, a Government Analyst appointed by the Central Government or a State Government under section 20;]

[26] [* * *]

[27] [(e) "Inspector" means--

(i)       in relation to 4[Ayurvedic, Siddha or Unani] drug, an Inspector appointed by the Central Government or a State Government under section 33G; and

(ii)      in relation to any other drug or cosmetic, an Inspector appointed by the Central Government or a State Government under section 21;]

[28] [(f) "manufacture" in relation to any drug [29] [or cosmetic] includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug [30] [or cosmetic] with a view to its [31] [sale or distribution] but does not include the compounding or dispensing [32] [of any drug, or the packing of any drug or cosmetic,] in the ordinary course of retail business; and "to manufacture" shall be construed accordingly;]

[33] [(g)] "to import", with its grammatical variations and cognate expressions means to bring into [34] [India];

[35] [(h) "patent or proprietary medicine" means,--

(i)       in relation to Ayurvedic, Siddha or Unani Tibb systems of medicine all formulations containing only such ingredients mentioned in the formulae described in the authoritative books of Ayurveda, Siddha or Unani Tibb systems of medicine specified in the First Schedule, but does not include a medicine which is administered by parenteral route and also a formulation included in the authoritative books as specified in clause (a);

(ii)      in relation to any other systems of medicine, a drug which is a remedy or prescription presented in a form ready for internal or external administration of human beings or animals and which is not included in the edition of the Indian Pharmacopoeia for the time being or any other Pharmacopoeia authorised in this behalf by the Central Government after consultation with the Drugs Technical Advisory Board constituted under section 5;]

[36] [(i) "prescribed" means prescribed by rules made under this Act.]

[37] [* * *]

Section 3A - Construction of references to any law not in force or any functionary not in existence in the State of Jammu and Kashmir

[38][3A. Construction of references to any law not in force or any functionary not in existence in the State of Jammu and Kashmir

Any reference in this Act to any law which is not in force, or any functionary not in existence, in the State of Jammu and Kashmir, shall, in relation to that State, be construed as a reference to the corresponding law in force, or to the corresponding functionary in existence, in that State.]

Section 4 - Presumption as to poisonous substances

Any substance specified as poisonous by rule made under Chapter III or Chapter IV[39][or Chapter IVA] shall be deemed to be a poisonous substance for the purposes of Chapter III or Chapter IV[40][or Chapter IVA], as the case may be.

Section 5 - The Drugs Technical Advisory Board

(1)     The Central Government shall, as soon as may be, constitute a Board (to be called the Drugs Technical Advisory Board) to advise the Central Government and the State Governments on technical matters arising out of the administration of this Act and to carry out the other functions assigned to it by this Act.

[41][(2) The Board shall consist of the following members, namely:--

(i)       the Director General of Health Services, ex officio, who shall be Chairman;

(ii)      the Drugs Controller, India, ex officio;

(iii)     the Director of the Central Drugs Laboratory, Calcutta, ex officio;

(iv)    the Director of the Central Research Institute, Kasauli, ex officio;

(v)      the Director of the Indian Veterinary Research Institute, Izatnagar, ex officio;

(vi)    the President of the Medical Council of India, ex officio;

(vii)   the President of the Pharmacy Council of India, ex officio;

(viii)  the Director of the Central Drug Research Institute, Lucknow, ex officio;

(ix)    two persons to be nominated by the Central Government from among persons who are in charge of drugs control in the States;

(x)      one person, to be elected by the Executive Committee of the Pharmacy Council of India, from among teachers in pharmacy or pharmaceutical chemistry or pharmacognosy on the staff of an Indian University or a college affiliated thereto;

(xi)    one person, to be elected by the Executive Committee of the Medical Council of India, from among teachers in medicine or therapeutics on the staff of an Indian University or a college affiliated thereto;

(xii)   one person to be nominated by the Central Government from the pharmaceutical industry;

(xiii)  one pharmacologist to be elected by the Governing Body of the Indian Council of Medical Research;

(xiv)  one person to be elected by the Central Council of the Indian Medical Association;

(xv)   One person to be elected by the Council of the Indian Pharmaceutical Association;

(xvi)  two persons holding the appointment of Government Analyst under this Act, to be nominated by the Central Government.]

(3)   The nominated and elected members of the Board shall hold office for three years, but shall be eligible for re-nomination and re-election:

[42][Provided that the person nominated or elected, as the case may be, under clause (ix) or clause (x) or clause (xi) or clause (xvi) of sub-section (2) shall hold office for so long as he holds the appointment of the office by virtue of which he was nominated or elected to the Board.]

(4)   The Board may, subject to the previous approval of the Central Government, make bye-laws fixing a quorum and regulating its own procedure and the conduct of all business to be transacted by it.

(5)   The Board may constitute sub-committees and may appoint to such sub-committees for such periods, not exceeding three years, as it may decide, or temporarily for the consideration of particular matters, persons who are not members of the Board.

(6)   The functions of the Board may be exercised notwithstanding any vacancy therein.

(7)   The Central Government shall appoint a person to be Secretary of the Board and shall provide the Board with such clerical and other staff as the Central Government considers necessary.

Section 6 - The Central Drugs Laboratory

(1)     The Central Government shall, as soon as may be, establish a Central Drugs Laboratory under the control of a Director to be appointed by the Central Government, to carry out the functions entrusted to it by this Act or any rules made under this Chapter:

Provided that, if the Central Government so prescribes, the functions of the Central Drugs Laboratory in respect of any drug or class of drugs[43][or cosmetic or class of cosmetics] shall be carried out at the Central Research Institute, Kasauli, or at any other prescribed Laboratory and the functions of the Director of the Central Drugs Laboratory in respect of such drug or class of drugs[44][or such cosmetic or class of cosmetics] shall be exercised by the Director of that Institute or of that other Laboratory, as the case may be.

(2)     The Central Government may, after consultation with the Board, make rules prescribing--

(a)      the functions of the Central Drugs Laboratory;

[45] [***]

(d)   the procedure for the submission of the said Laboratory[46][under Chapter IV or Chapter IVA] of samples of drugs[47][or cosmetics] for analysis or test, the forms of the Laboratory's reports thereon and the fees payable in respect of such reports;

(e)   such other matters as may be necessary or expedient to enable the said Laboratory to carry out its functions;

(f)    the matters necessary to be prescribed for the purposes of the proviso to sub-section (1).

[STATE AMENDMENTS

[Uttar Pradesh

[48] [In Section 6

In sub-section (i) 'after the existing proviso, the following further proviso shall be added, namely: --

"Provided further that the State Government may, with the prior approval of the Central Government, direct that the functions of the Central Drugs Laboratory and of the Director may be carried out in Uttar Pradesh by such Authority and such officer respectively as may be specified by the State Government by notification in the Official Gazette, and any reference in this Act to the Central Drugs Laboratory or the Director shall then be construed as a reference to such Authority or officer, as the case may be.".]

[West Bengal

[49] [In Section 6

In sub-section (1) of section 6, after the existing proviso, the following further proviso shall be added, namely:-

"Provided further that the State Government may, with the prior approval of the Central Government, direct that the functions of the Central Drugs Laboratory and the Director may be carried out in West Bengal by such Authority and such officer respectively as may be specified by the State Government by notification in the Official Gazette and any reference in this Act to the Central Drugs Laboratory or the Director shall then be construed to mean such Authority or officer, as the case may be.".]

Section 7 - The Drugs Consultative Committee

(1)     The Central Government may constitute an advisory committee to be called "the Drugs Consultative Committee" to advise the Central Government, the State Governments and the Drugs Technical Advisory Board on any matter tending to secure uniformity throughout[50][India] in the administration of this Act.

(2)     The Drugs Consultative Committee shall consist of two representatives of the Central Government to be nominated by that Government and one representative of each State Government to be nominated by the State Government concerned.

(3)     The Drugs Consultative Committee shall meet when required to do so by the Central Government and shall have power to regulate its own procedure.

Section 7A - Sections 5 and 7 not to apply to Ayurvedic, Siddha or Unani drugs

[51] [7A. Sections 5 and 7 not to apply to Ayurvedic, Siddha or Unani drugs

Nothing contained in sections 5 and 7 shall apply to[52][Ayurvedic, Siddha or Unani] drugs.]

Chapter III - IMPORT OF DRUGS AND COSMETICS

CHAPTER III

[53][IMPORT OF DRUGS AND COSMETICS]

Section 8 - Standards of quality

[54] [(1) For the purposes of this Chapter, the expression "standard quality" means--

(a)      in relation to a drug, that the drug complies with the standard set out in[55][the Second Schedule], and

(b)      in relation to a cosmetic, that the cosmetic complies with such standard as may be prescribed.]

(2)   The Central Government, after consultation with the Board and after giving by notification in the Official Gazette not less than three months' notice of its intention so to do, may by a like notification add to or otherwise amend[56] [the Second Schedule], for the purposes of this Chapter, and thereupon[57][the Second Schedule] shall be deemed to be amended accordingly.

Section 9 - Misbranded drugs

[58][9. Misbranded drugs

For the purposes of this Chapter, a drug shall be deemed to be misbranded,--

(a)      if it is so coloured, coated, powdered or polished that damage is concealed or if it is made to appear of better or greater therapeutic value than it really is; or

(b)      if it is not labelled in the prescribed manner; or

(c)      if its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular.]

Section 9A - Adulterated drugs

[59][9A. Adulterated drugs

For the purposes of this Chapter, a drug shall be deemed to be adulterated,--

(a)      if it consists, in whole or in part, of any filthy, putrid or decomposed substance; or

(b)      if it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or

(c)      if its container is composed in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or

(d)      if it bears or contains, for purposes of colouring only, a colour other than one which is prescribed; or

(e)      if it contains any harmful or toxic substance which may render it injurious to health; or

(f)       if any substance has been mixed therewith so as to reduce its quality or strength.]

Section 9B - Spurious drugs

[60][9B. Spurious drugs

For the purposes of this Chapter, a drug shall be deemed to be spurious,--

(a)      if it is imported under a name which belongs to another drug; or

(b)      if it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label or container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug; or

(c)      if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist; or

(d)      if it has been substituted wholly or in part by another drug or substance; or

(e)      if it purports to be the product of a manufacturer of whom it is not truly a product.]

Section 9C - Misbranded cosmetics

[61][9C. Misbranded cosmetics

For the purposes of this Chapter, a cosmetic shall be deemed to be misbranded--

(a)      if it contains a colour which is not prescribed; or

(b)      if it is not labelled in the prescribed manner; or

(c)      if the label or container or anything accompanying the cosmetic bears any statement which is false or misleading in any particular.]

Section 9D - Spurious cosmetics

[62] [9D. Spurious cosmetics

For the purposes of this Chapter, a cosmetic shall be deemed to be spurious,--

(a)      if it is imported under a name which belongs to another cosmetic; or

(b)      if it is an imitation of, or is a substitute for, another cosmetic or resembles another cosmetic in a manner likely to deceive or bears upon it or upon its label or container the name of another cosmetic, unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other cosmetic; or

(c)      if the label or container bears the name of an individual or a company purporting to be the manufacturer of the cosmetic which individual or company is fictitious or does not exist; or

(d)      if it purports to be the product of a manufacturer of whom it is not truly a product.]

Section 10 - Prohibition of import of certain drugs or cosmetics

From such date[63]as may be fixed by the Central Government by notification in the Official Gazette in this behalf, no person shall import--

(a)      any drug[64][or cosmetic] which is not of standard quality;

[65] [(b) any misbranded drug[66][or misbranded or spurious cosmetic];]

[67] [(bb) any[68][adulterated or spurious] drug;]

(c)   any drug[69] [or cosmetic] for the import of which a licence is prescribed, otherwise than under, and in accordance with, such licence;

[70][(d) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof[71][the true formula or list of active ingredients contained in it together with the quantities thereof];]

(e)   any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims to cure or mitigate any such disease or ailment, or to have any such other effect, as may be prescribed;

[72][(ee) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended;]

(f)    any drug[73] [or cosmetic] the import of which is prohibited by rule made under this Chapter:

Provided that nothing in this section shall apply to the import, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis or for personal use :

Provided further that the Central Government may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the import of any drug or class of drugs not being of standard quality.

[74] [* * *]

Section 10A - Power of Central Government to prohibit import of drugs and cosmetics in public interest

[75] [10A. Power of Central Government to prohibit import of drugs and cosmetics in public interest

Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic value claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do then, that Government may, by notification in the Official Gazette, prohibit the import of such drug or cosmetic]

Section 11 - Application of law relating to sea customs and powers of Customs Officers

(1)     The law for the time being in force relating to sea customs and to goods, the import of which is prohibited by section 18 of the Sea Customs Act, 1878 (8 of 1878)[76]shall, subject to the provisions of section 13 of this Act, apply in respect of drugs[77][and cosmetics] the import of which is prohibited under this Chapter, and officers of Customs and officers empowered under that Act to perform the duties imposed thereby on a[78][Commissioner of Customs] and other officers of Customs, shall have the same powers in respect of such drugs[79][and cosmetics] as they have for the time being in respect of such goods as aforesaid.

[80][(2) Without prejudice to the provisions of sub-section (1), the[81] [Commissioner of Customs] or any officer of the Government authorised by the Central Government in this behalf, may detain any imported package which he suspects to contain any drug[82] [or cosmetic] the import of which is prohibited under this Chapter and shall forthwith report such detention to the Drugs Controller, India, and, if necessary, forward the package or sample of any suspected drug[83] [or cosmetic] found therein to the Central Drugs Laboratory.]

Section 12 - Power of Central Government to make rules

(1)     The Central Government may,[84] [after consultation with or on the recommendation of the Board] and after previous publication by notification in the Official Gazette, make rules for the purpose of giving effect to the provisions of this Chapter:

[85] [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)      specify the drugs or classes of drugs[86] [or cosmetics or classes of cosmetics] for the import of which a license is required,[87] [and prescribe the form and conditions of such licenses, the authority empowered to issue the same, the fees payable there for and provide for the cancellation, or suspension of such license 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 the license is issued is not complied with];

(b)      prescribe the methods of test or analysis to be employed in determining whether a drug[88] [or cosmetic] is of standard quality;

(c)      prescribe, in respect of biological and organ metallic compounds, the units or methods of standardisation;

[89] [(cc) prescribe under clause (d) of[90] [section 9A] the color or colours which a drug may bear or contain for purposes of colouring;]

(d)      specify the diseases or ailments which an imported drug may not purport or claim7 [to prevent, cure or mitigate] and such other effects which such drug may not purport or claim to have;

(e)      prescribe the conditions subject to which small quantities of drugs, the import of which is otherwise prohibited under this Chapter, may be imported for the purpose of examination, test or analysis or for personal use;

(f)       prescribe the places at which drugs3 [or cosmetics] may be imported, and prohibit their import at any other place;

(g)      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 imported drug or class of such drug, and prohibit the import of the said drug or class of drug after the expiry of a specified period from the date of manufacture;

(h)     regulate the submission by importers, and the securing, of samples of drugs3 [or cosmetics] for examination, test or analysis by the Central Drugs Laboratory, and prescribe the fees, if any, payable for such examination, test or analysis;

(i)       prescribe the evidence to be supplied, whether by accompanying documents or otherwise, of the quality of drugs[91] [or cosmetics] sought to be imported, the procedure of officers of Customs in dealing with such evidence, and the manner of storage at places of import of drugs[92] [or cosmetics] detained pending admission;

(j)       provide for the exemption, conditionally or otherwise, from all or any of the provisions of this Chapter and the rules made there under of drugs3 [or cosmetics] imported for the purpose only of transport through, and export from,8 [India];

(k)      prescribe the conditions to be observed in the packing in bottles, packages or other containers, of imported drugs3 [or cosmetics] 9 [including the use of packing material which comes into direct contact with the drugs];

(l)       regulate the mode of labeling drugs3 [or cosmetics] imported for sale in packages, and prescribe the matters which shall or shall not be included in such labels;

(m)    prescribe the maximum proportion of any poisonous substance which may be added to or contained in any imported drug, prohibit the import 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 hereunder;

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

(o)      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[93] [or cosmetics or class of cosmetics].

Section 13 - Offences

[94]13. Offences

(1)     Whoever himself or by any other person on his behalf imports,--

(a)      any drug deemed to be adulterated under section 9A or deemed to be a spurious drug under section 9B or any spurious cosmetic referred to in section 9D or any cosmetic of the nature referred to in clause (ee) of section 10 shall be punishable with imprisonment for a term which may extend to three years and a fine which may extend to five thousand rupees;

(b)      any drug or cosmetic other than a drug or cosmetic referred to in clause (a), the import of which is prohibited under section 10, or any rule made under this Chapter, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both;

(c)      any drug or cosmetic in contravention of the provisions of any notification issued under section 10A, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both.

(2)     Whoever having been convicted of an offence--

(a)      under clause (a) or clause (c) of sub-section (1), is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten thousand rupees, or with both;

(b)      under clause (b) of sub-section (1), is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

(3)     The punishment provided by this section shall be in addition to any penalty to which the offender may be liable under the provisions of section 11.]

Section 14 - Confiscation

Where any offence punishable under section 13 has been committed, the consignment of the drugs[95][or cosmetics] in respect of which the offence has been committed shall be liable to confiscation.

Section 15 - Jurisdiction

No Court inferior to that[96][of a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under section 13.

Chapter IV - MANUFACTURE, SALE AND DISTRIBUTION OF DRUGS AND COSMETICS

CHAPTER IV

MANUFACTURE, SALE AND DISTRIBUTION OF[97][DRUGS AND COSMETICS]

Section 16 - Standards of quality