JUDGMENT
Lal, J.
1. This petition under Section 482 Cr.P.C. is directed against the order dated 13.2.2002 passed by the learned Chief Judicial Magistrate, Jodhpur and seeks quashing of the criminal proceedings pending against them in criminal case No. 99/95.
2. Briefly stated the relevant facts are that the then Drugs Inspector Heeralal Bansal inspected the shop of M/s.Mahesh Medical Store, Sarrafa Bazar, Jodhpur on 13.3.93 and took sample of Gentapar (tropical cream) and Gentamycin Sulphate cream and sent one of the samples directly to the Director, Central Indian Pharmacopoeia Laboratory, Rajnagar, Gaziabad (CIPL) and on examination and analysis, the same was found to be substandard. So, a complaint was filed before the learned Court below on 28.11.95 for various offences under Indian Drugs and Cosmetics Act, 1940 (hereinafter referred as ‘the Act of 1940’). The learned lower Court took cognizance of the offences and summoned the petitioners whereupon they filed S.B. Criminal Misc. Petition No. 200/2000 before this Court and while deciding the same vide order dated 4.5.2000, this Court directed the petitioners to raise all the objections first before the learned trial Court. In pursuance thereto, the petitioners filed an application before the learned Court below wherein they stated that the sample was directly sent to the Director. CIPL and, thus, they have been denied an opportunity of getting the sample tested and analysed by the Director, CIPL and their valuable right to get the sample analysed and tested has been defeated. In this regard, reliance was placed on the judgment in Bharat Insecticides Ltd. v. State of Raj. (1), and it was prayed that the proceedings may be quashed against them on the aforesaid ground.
3. The learned C.J.M. after hearing the parties and relying upon the judgment of Hon’ble Supreme Court in the case of State of Haryana v. Brij Lal Mittal and Ors. (2), held that the petitioners have not informed within the prescribed period of 28 days under Section 25(3) of the Act to the Drugs Inspector that they intend to get the sample analysed and retested by the Director, CIPL and to adduce evidence in controversion of the report of the State Public Analyst and so they were not entitled to get the sample tested by the CIPL and accordingly, rejected their application. Hence, this petition.
4. I have heard learned counsel for the petitioners and learned P.P. on behalf of State.
5. The main contention of the learned counsel for the petitioners is that the sample was not sent to the State Analyst and was sent directly to the Director, Central Indian Pharmacopoeia Laboratory, Rajnagar, Gaziabad. As such, they have been deprived of their valuable right to get the sample tested by the CIPL and thereby they had been prejudiced in their defence. So these criminal proceedings amount to abuse of process of Court and they be, therefore, quashed. In this regard, reliance has been placed on:-
(1) State of Haryana v. Unique Farmaid (P) Ltd. and Ors. along with State or Haryana v. Northern Minerals Ltd. and Ors. v. State of Haryana v. Sant Lal (3).
(2) Calcutta Municipal Corporation v. Pawan Kumar Saraf and Anr. (4).
(3) S.N. Chemicals v. State of Rajasthan and Ors. (5)
(4) Hindustan Ciba-Geigy v. State of Rajasthan and Ors. (6).
(5) ( Bharat Insecticides Ltd. v. State of Rajasthan) (supra)
6. Learned P.P. has no on the other hand supported the order of the learned court below and has contended that this Court cannot quash the criminal proceedings in exercise of its inherent powers under Section 482 Cr.P.C. which ought to be exercised very sparingly and in the rarest of the rare cases.
7. I have given my anxious and thoughtful consideration to the submissions made at the bar and have perused the record as well as the authorities relied upon by the learned counsel for the petitioners.
8. At the outset, it will be apposite to extract Section 25 of the Act which reads as under:-
“25. Reports of Government Analysts. – (1) The Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis under Sub-section (4) of Section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.
(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy of the person, if any, whose name, address and other particulars have been disclosed under Section 18A, and shall retain the third copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under Section 18A has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that the intends to adduce evidence in contrpversion of the report.
(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under Sub-section (3) notified his intention of adducing evidence in a controversion of a Government Analyst’s report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of the drug or cosmetic produced before the Magistrate under Sub-section (4) of Section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by, or under authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
(5) The cost of a test or analysis made by the Central Drugs Laboratory under Sub-section (4) shall be paid by the complainant or accused as the court shall direct.”
9. From a bare perusal of Sub-section (3) it is manifest that the report of the Government Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address or other particulars have been disclosed under Section 18A has within 28 days of the receipt of the report notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. Sub-section (4) also makes it abundantly clear that the right to get the sample tested by the Central Government Laboratory (so as to make this report override the report of the Analyst) through the Court accrues to a person accused in accordance with Sub-section (3), his intention of adducing evidence in controversion of the report of the Government Analyst. To put it differently, unless requirement of Sub-section (3) is complied with by the person concerned, he cannot avail of his right under Sub-section (4). Thus, the right to get the sample examined by the Central Drugs Laboratory through the Court before which the prosecution is launched arises only after the person concerned notifies in writing the Inspector or the Court concerned within twenty-eight days from the receipt of the copy of the report of the Government Analyst that he intends to adduce evidence in controversion of the report.
10. In the instant case, from the materials that have come on record, it cannot be disputed that after inspection and taking of samples from the shop of M/s. Mahesh Medical Stores, Sarafa Bazar, Jodhpur and after receipt of the report of analysis, a copy of the report alongwith notice was sent to the dealer as also to the petitioners and they did not give any intimation of their intention within the prescribed period of 28 days under Section 25(3) of the act to adduce evidence in controversion of the report of analyst and instead thereof, they got the samples examined and tested by themselves and sent their reply to the Drugs Inspector on 22.8.1994 stating that the test of the samples got done by them shows that the sample was standard. It is also a fact that the learned Court below has in this regard rejected their application on the basis of a direct authority of the Hon’ble Apex Court in case of State of Haryana v. Brij Lal Mittal and Ors. (supra) and, therefore, so far as the order of the learned Court below dated 13.2.202 is concerned, there is no illegality or perversity in the order and there is no valid and cogent ground to interfere in the said order in the exercise of inherent jurisdiction of this Court under Section 482 Cr.P.C.
11. So far as the contention with regard to valuable right being defeated due to the sample being sent straight to the Director. CIPL is concerned, it may be stated that none of the authorities relied upon by the learned counsel for the petitioners deals with this aspect of the matter and all these authorities relied upon by the g for the petitioners deal with the right of the petitioners accused being defeated on account of expiry of shelf life of the sample due to filing of the complaint late or due to non-action by the Inspector for getting the sample tested by the Central Laboratory. These authorities deal with the provisions of Section 24 of the Insecticides Act, 1968 which are pari materia with the above quoted provisions of the Act.
12. The argument which has been advanced by the learned counsel for the petitioners has been squarely dealt with by the Hon’ble Apex Court in the case of Ram Shanker Misra v. State of U.P. (7), which is a case under the Act and in that case, the Inspector of Drugs, Kanpur went to the shop of M/s. Misra Brothers, in which the appellant Ram Shankar Misra was a partner on 22.2.66 and took samples of Prednisolone tablets which were stocked thee and the sample was sent to the Director, Central Drugs Laboratory, Calcutta for analysis. The report of the Director indicated that the tablets were of sub-standard quality. A complaint was filed by the Drugs Inspector for the offences punishable under Section 27 of the Act and after trial, he was found guilty and sentenced. His appeal as well as revision were rejected and in the review filed by the appellants, while dismissing the review petition, the High Court granted the certificate of fitness on the ground that it raised substantial question of law. Their lordships of the Hon’ble Apex Court while dealing with an identical contention has observed as under:-
“The question which was raised before the High Court was that the sample taken by the Inspector was not sent to the Director through the Court and, therefore, his report is inadmissible in evidence. According to the learned counsel for the appellant, the sample ought to have been given to the Analyst at Lucknow under Section 25(1) of the Act and should not have been sent direct to the Director of Central Drugs Laboratory, Calcutta. The submission is that by sending the sample straight to the Director, Central Drugs Laboratory, Calcutta, the appellant was deprived of his right under Section 25(4) of requesting the Court to send the sample for analysis by the Central Drugs Laboratory. We do not see any substance in this contention, Section 25(1) deals with the reports of Government Analyst. Section 25(1) provides that the Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. The sub-section contemplates two modes of sending samples one by sending the drug for test or under Sub-section (4) of Section 23. There is no restriction as to how a sample of the drug or cosmetic has to be submitted by the Drugs Inspector. Section 25(4) contemplates sending of the sample through the Court. It provides that unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under Sub-section (3) notified his intention of adducing evidence in controversion of Government analyst’s report at the request either of the complainant or the accused cause the sample of the drug or cosmetic produced before the Magistrate under Sub-section (4) of Section 23 to be sent for test or analysis to the laboratory.
4. The mode prescribed under Section 25(4) is one method of sending it to the Director of the Central Drugs Laboratory. The other method is by the Drugs Inspector sending it direct as contemplated under the first part of Section 25(1). It is significant that Sub-section (4) of Section 25 starts with the words “unless the sample has already been tested or analysed in the Central Drugs Laboratory.” These words clearly indicate that apart from the mode prescribed in Section 25(4) the sample can be sent for analysis to the Central Drugs Laboratory.”
13. After dealing with Section 3(c) which defines Government Analyst and Section 20 which empowers the State Government and the Central Government by a notification to appoint persons having the prescribed qualification to be Government Analyst, their Lordships have observed as under:-
“The definition as well as Section 20 makes it clear that the Government Analyst would include all Analyst appointed by the State Government as well as by the Central Government. It is not disputed that the Director of Central Laboratory is also a Government Analyst.”
14. After interpretation of Section 23(4), 25(1) and 25(4) of the Act and Rule 57 of the Drugs and Cosmetic Rules, their Lordships have observed as under:-
“We are satisfied that there is no prohibition under the Act or the Rules barring the Inspector from sending the sample direct to the Director, Central Drugs Laboratory, Section 25(1) and (4) clearly contemplate sending of the sample direct to the Central Drugs Laboratory.”
15. In this view of the matter, therefore, the contention of the learned counsel for the petitioners that they have been deprived of their valuable right to get the sample tested by the CIPL is untenable and cannot be accepted in the face of direct and clear authority of the Hon’ble Apex Court and neither the order dated 13.2.2002 of the learned C.J.M., Jodhpur can be interfered with nor the criminal proceedings against the petitioners can be quashed. This petition being devoid of merit and substance and deserves to be dismissed.
16. Accordingly, this petition is hereby dismissed.