ORDER
Bilal Nazki, J.
1. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. This is a reference made by the learned single Judge of this Court who has expressed his doubts about the correctness of an order of a Division Bench of this Court in Crl.P.No. 1899 of 1996 passed on 19.11.996. The sole question which is to be considered is whether a dealer in drugs is liable for punishment under Section 18(a)(i) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act'), if the drug found in his possession was sub-standard or spurious.It appears that quashing proceedings were launched before the learned single Judge who found that on reading of Section 18(a)(i) of the Act even a dealer is liable to be prosecuted, if the drug in his possession was found to be spurious or sub-standard, but the Division Bench of this Court had declared that a dealer was not responsible for any offence under Section 18 read with Section 27 of the Act. We have carefully gone through the judgment of the Division Bench. The Division Bench has not at all laid down that the dealer in any circumstances would not be liable under Section 18 read with Section 27 of the Act. The Division Bench was merely relying on Section 19(3) of the Act, this is one of the defences under Section 19(3) of the Act which could be available to a person who is not a manufacturer, if he shows that he had acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof. Even when a person who is dealing with the drugs as distributor or dealer which is found to be spurious or sub-standard in terms of Section 18 of the Act, prima facie he is guilty, but in order to prove that he was innocent, he can take certain pleas which are available to him under Section 19 of the Act. One of the pleas available was that he had acquired the drug from a duly licensed manufacturer, distributor or dealer thereof. However, this is a matter of trial as to whether a dealer or a distributor had purchased the drug from a manufacturer and defences were available to him under Section 19(3) of the Act, which is reproduced below,(3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of Section 18 if he proves-
(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;
(b) that he did not know and could not, with reasonable diligence have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and
(c) that the drug or cosmetic, while in his possession, was properly stored and remained in the same state as when he acquired it;
2. Therefore, we are of the view that the Division Bench has not at all laid down that a distributor or dealer would never be liable under Section 18 read with Section 27 of the Act. It has merely stated that the defences under Section 19 of the Act would be available to a dealer and distributor which are not available to a manufacturer, but that would also always be a question of fact to be decided during the trial.
3. In these circumstances, we order the reference accordingly. In view of what has been stated hereinabove, we do not find any purpose of remitting back the quashing proceedings to the learned single Judge, which are accordingly dismissed. However, the petitioners would have the liberty to move an appropriate application before the trial Court for discharge if so advised.