Offences

26. (1) Every person who contravenes any of -the pro-visions of this Act or any regulations made thereunder or fails to comply with any direction given under this Act shall be guilty of an offence and shall be liable on conviction-

(a) where the nature of the offence involves injury to the health of the public, to a fine not exceeding five thousand rupees or to imprisonment for a term not exceeding three years or to both such fine and imprisonment:

(b) for any other offence-

(i) for the first offence, to a fine not exceeding one thousand rupees or to imprisonment for a term not exceeding three months or to both such fine and imprisonment ;

(ii) for a second or subsequent offence to a fine not exceeding two thousand rupees or to imprisonment for a term not exceeding six months or to  both such fine and imprisonment.

(2) Where a person convicted of an offence under this Act or any regulations made thereunder is convicted of a second or subsequent offence of a like or similar nature under this Act or regulations made thereunder, the court convicting him for the second or subsequent offence may-

(a) cause the name and address of the person convicted and the offence and the punishment imposed for such offence to be published in such newspaper or in such other manner as the court may direct and recover the cost of publication from the person convicted as if it were a fine imposed on him ;

(b) cancel any license issued to the person convicted for the manufacture, importation, sale and distribution of any cosmetic, device or drug under this Act or any other law and inform the relevant licensing authority accordingly.

Person committing offence to be arrested without a warrant and to be tried by a Magistrate's court.

27. Every person who commits an offence under this Act or any regulations made thereunder may be arrested without a warrant and every offence under this Act or regulations made thereunder shall be tribal by a Magistrate's Court, 

Institution of proceedings

28. A prosecution for an offence under this Act or any regulation made thereunder shall not be instituted- 

(a) except by an Authorized Officer; and
(b) after the expiration of a period of three months from the date of detection of that offence.

Where the accused proves that some other person is guilty of the offence.

29. (1) Where a person (hereinafter referred to as " the accused ") is charged with an offence under this Act, he shall, upon complaint duly made by him in accordance with the provisions of section 136 of the Code of Criminal Procedure Act, No. 15 of 1979, and on giving to the prosecution not less than three days' notice of his intention, be entitled to have any other person whom he charges as the actual offender brought before the court, and, if, after the commission of the offence has been proved, the accused proves to the satisfaction of the court that the commission of the offence was due to the act or default of such other person, such other person may be convicted of the offence, and, if the accused further proves that he has 
used all due diligence to enforce the provisions of this Act, he shall be acquitted of the offence.

(2) Where an accused seeks to avail himself of the provisions of subsection (1)-

(a) the prosecution, as well as the person whom the accused charges with being the actual offender, shall have the right to cross-examine him, if he gives evidence, and any witness called by him ID support of his pleas, and to call evidence in rebuttal; and
(b) the court may make such order as it thinks fit for the payment of casts by any party to the proceedings to any  other party thereto.

(3) Where it appears to the Authority that an offence has been committed under this Act in respect of which proceedings might be taken under this Act against some person and such Authority is reasonably satisfied that the offence complained of was due to an act or default of some other person and that the first: mentioned person could establish a defence under subsection (1) of this section such Authority may cause proceedings to be taken against that other person without first causing proceedings to be taken
against the first-mentioned person.

In any such proceedings the accused may be charged with and, on proof that the offence was due to his act or default, be convicted of the offence with which the first-mentioned person might have been charged,

Defence

30. (1) In a prosecution for the offence of sale of any cosmetic, device or drug contrary to the provisions of this Act or any regulations made thereunder, subject to subsection (2) it shall be a defence for the accused-

(a) that he purchased the cosmetic, device or drug in a package and sold it in the same package and in the same condition that it was at the time he purchased  it; and

(b) that he could not have with reasonable diligence ascertained that the sale of the cosmetic, device or drug would be in contravention of the Act or any regulations made thereunder.

(2) The defence specified in subsection (1) shall not be available to an accused unless he has within thirty days of the detection of the offence informed in writing the Authorized Officer detecting the offence-

(a) of his intention to avail himself of such defence ; and

(c) the name and address of the person from whom he purchased the cosmetic, device or drug and the date of purchase.

Report or certificate of the Approved Analyst or an additional approved Analyst 

31.(1) In the absence of evidence to the contrary, a document purporting to be a report or a certificate signed by the Approved Analyst or an Additional Approved Analyst upon any matter submitted to him for examination or analysis shall be sufficient evidence of the facts stated therein.

(2) When a party against whom a report or a certificate referred to in subsection (1) is produced requests the Approved Analyst or an Additional Approved Analyst, as the case may be, to be summoned as a Witness, the Court shall summon him on that party paying to the court the expenses of summoning him and shall examine him as a witness.

(4)  The report or the certificate referred to in subsection (1) shall not be received in evidence unless the party intending to produce it has given the party against whom it was intended to be produced a copy of the report or the certificate and reasonable notice of his intention to produce it.

Authorised Officer to produce before court the part of sample retained by him.

32.(1) Where a sample obtained by an Authorized Officer is required to be divided by him into parts, one of which shall be retained by him, the part retained by him shall he-produced in court at the time of the institution of the prosecution in relation to such sample.

(2) The Magistrate may of his own motion and shall at the request of any party to the prosecution forward for analysis or examination such part of the sample produced in court under subsection (1) to the Approved Analyst or an Additional Approved Analyst other than an Analyst who has analysed or examined any other part of such sample.

(3) The analyst to whom such part of the sample Is forwarded under subsection (2) shall send his report or
certificate to the court within twenty eight days of the receipt by him of such part of the sample.

(4) The expenses of the analysis or examination shall be paid by such party as the court may direct.

Copy or extract of documents taken by an authorised Officer.

33. A copy made or extract taken from any book, document or record by an Authorized Officer under section 22(1) (c) shall, if certified to be a true copy or extract by the Authorized Officer, be admissible in evidence against the person keeping or maintaining that book, document or record or causing that book, document or record to be kept or maintained and shall be prima facie evidence of the contents of that book, document or record.

Presumptions

34. (1) For the purposes of this Act and of any regulations made thereunder-

(a) any cosmetic, device or drug found, kept or exhibited in any shop or other place commonly used for the sale of articles shall be presumed until the contrary is proved to be intended for sale;

(b) any substance capable of being used in the composition or preparation of any cosmetic or drug which is found in premises used in the preparation of cosmetics or drugs shall be presumed until the contrary is proved to be intended for use in the composition or preparation of cosmetics or drugs.

(2) Where in a prosecution for the offence of manufacturing a drug which is a adulterated, it is established-

(a) that such drug was adulterated with the addition of any other substance ; and

(b) that the accused had in his possession or premises such other substance,

it shall be presumed until the contrary is proved that such drug was adulterated by the addition of that other substance.

(3) Where a package containing any cosmetic, device or drug has on or upon it the name and address purporting to be the name or address of the person who manufactured or packaged it, it shall be presumed until the contrary is proved that the cosmetic, device or drug was manufactured or packaged, as the case  may be, by the person whose name or address appears on the package.

Offences committed by a body of persons. 

35.  Where an offence under this Act or any regulations made thereunder is committed by a body of persons then- 

(a) if that body of persons Is a body corporate, every person who at the time of commission of the offence was a director, general manager, secretary or other similar officer of that body ; or

(b) if that body is not a body corporate every person who at the time of commission of the offence was a member of that body,

shall be deemed to be guilty of that offence, unless he proves that such offence was committed without his consent or concurrence and that he exercised all such diligence to prevent the commission of such offence as he ought to have exercised in the circumstances having regard to the nature of his functions.

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