IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1391 of 2004()
1. VARGHESE PAUL, PROPRIETOR AND
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. REGIONAL DRUGS INSPECTOR,
For Petitioner :SRI.JIJO PAUL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :20/06/2008
O R D E R
M.C.HARI RANI, J.
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CRL.M.C.No.1391 OF 2004
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DATED THIS THE 20th DAY OF JUNE, 2008
O R D E R
The petitioner herein is the accused in S.T.No.557/1997 before
the Court of C.J.M., Thrissur. Prosecution was initiated against the
petitioner herein at the instance of the second respondent under
sections 18(a)(i) and 18(c) of the Drugs and Cosmetics Act, 1940 with
the allegation that the product manufactured by the petitioner by
name “Crystal Violet Paint BPC” did not confirm to the relevant
provisions of the Drugs and Cosmetics Act, 1940 and the Rules
thereunder and the test report from the Government Analyst disclosed
that the sample of Crystal Violet Paint BPC, Batch No.78 is not of
standard quality which is in violation of Section 27(d) of the Drugs and
Cosmetics Act.
2. PWs 1 to 11 were examined before the learned C.J.M. on
the side of the complainant. The petitioner as the accused was
questioned under Section 313 Cr.P.C. DW1, the Deputy Drugs
Controller was also examined on the side of the accused/petitioner. A
statement was also filed by the accused before the trial court.
Thereafter the accused filed a petition before the learned C.J.M. as
Crl.M.P.No.4285/04 with a prayer to issue summons to PW2 and also
CRL.M.C.1391/04 -2-
to a new witness, Smt.Sudha, the Chief Analyst to examine as the defence
witnesses. That petition was dismissed by the learned C.J.M., Thrissur as
per order dated 18.5.2004. The prayer in this petition is to quash that order
of the learned C.J.M. dated 18.5.2004 in Crl.M.P.No.4285/04.
3. Heard the learned counsel appearing for the petitioner and also
the learned Public Prosecutor.
4. On a reading of the petition filed by the petitioner before the
learned C.J.M., Thrissur, it is evident that the prayer in the petition to
examine PW2 as a witness on the side of the accused was to clarify the
testimony given by him before the trial Judge regarding the facility in the
Drugs Control Office, where the sample was stored in the year 1994. The
other prayer is to issue summons to the new witness Smt.Sudha, the Chief
analyst who is the successor of PW9. Both prayers were disallowed by the
learned C.J.M., which is challenged in this petition by the petitioner.
5. The examination of PW2 as a defence witness who was already
examined as a prosecution witness has been disallowed by the learned
C.J.M. for the reason that the report is already produced before the trial
court which is part of the records. The evidentiary value of that report is yet
to be decided by the trial Judge.
6. Regarding the second prayer to issue summons to the new
witness, to clarify whether the correct and relevant BPC was applied in the
matter of conducting analysis of the sample is also devoid of merits which
CRL.M.C.1391/04 -3-
cannot be allowed, considering the facts and circumstances of this case. The
analysis report produced before the concerned court would clearly show the
BPC applied in the present case. Whether it was the correct one or not are
questions of law to be decided from the facts and evidence on record and
after considering the testimony of the witnesses already examined on the
side of the prosecution for which examination of the new witness who is the
successor of PW9 as prayed for in this petition cannot be allowed.
7. Therefore, I find no reason to take a different view in this matter
which is only a tactics for delay and abuse of process of law which cannot be
allowed. Therefore, I conclude that there is no merit in this petition and the
same is only to be dismissed.
In the result, the Crl.M.C. is dismissed.
M.C.HARI RANI, JUDGE.
dsn