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SCA/402620/2008 2/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4026 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
CLARIS
LIFESCIENCE LIMITED - Petitioner(s)
Versus
THE
STATE OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
AMAR N BHATT for
Petitioner(s) : 1,
MR LR PUJARI, AGP for Respondent No.1 &
2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 25/07/2008
ORAL
JUDGMENT
Rule.
Mr.Pujari, learned AGP wavies service of notice of Rule for
respondents No.1 and 2. With the consent of the learned Counsel
appearing for both the sides, the matter is finally heard.
The
short facts of the case appear to be that the sample of Dextrose
Injection I.P. (10% W/v) was taken by the respondent No.2 belonging
to the petitioner, which is a product manufactured by the
petitioner. As per the provisions of the Drugs and Cosmetics Act,
1940 (hereinafter referred to as the ‘Act’) read with the Rules one
portion of the sample was given to the petitioner, another was
retained by the Inspector for sending it to the laboratory at the
State level and third portion was retained for production in the
Court. It appears that the sample, which was retained by respondent
No.2 has been sent for laboratory testing and it is found that the
same is not meeting with the requisite parameters. The show-cause
notice has been issued by respondent No.2 to show cause as to why
the prosecution should not be filed. The petitioner had intimated
to respondent No.2 that as per the provisions of Section 25(3) of
the Act, the sample also be tested by the Central Laboratory. No
orders are passed by respondent No.2, nor any action for sending the
said sample to the Central Laboratory for testing. It is the
contention of the petitioner that the expiry date of the said drug
is 31.12.2008. Under these circumstances, the present petition.
The
petitioner has challenged the show-cause notice Annexure ‘A’, which
Mr.Soparkar, during the course of the hearing, has declared that the
petitioner is not pressing the said relief and the petitioner shall
appear before the concerned authority. However, he submitted that
he is pressing for prayer 7(A) only for seeking directions to the
respondent to send the sample for testing by Central Drug
Laboratory, Kolkata.
Heard
Mr.Soparkar, learned Counsel with Mr.Bhatt for the petitioner and
Mr.Pujari, learned AGP for the State authorities.
It
appears that as per the Scheme of the Act read with the Rules and
more particularly Section 25 of the Act, the right is provided to
the person concerned to request the Inspector or the Court before
whom the proceedings in respect of the contravention are pending if
he intends to adduce evidence in contravention of the report.
Sub-section (4) of Section 25 of the Act provides that in such
circumstances if the intention is notified, the Magistrate shall
direct for testing or analysis by or under the authority of the
Director of Central Drug Laboratory. The said aspect is with the
express provisions of the statute that such report shall be
conclusive evidence on the facts stated therein.
As
the complaint is not filed in the present case before the learned
Magistrate, the petitioner would not be in a position to seek
appropriate orders of the learned Magistrate. Considering the
peculiar facts and circumstances, in the present case that the drug
his to expire on 31.12.2008, if the retesting is not undertaken by
the Central Drug Laboratory, it may not be possible for all time to
come. Therefore, keeping in view the availability of the right to
the person concerned as provided under Section 25 of the Act and the
peculiar facts and circumstances as referred to herein above, no
prejudice will be caused, if the sample, which is in possession of
the Drug Inspector, may be for Court purpose, is sent to the Central
Drug Laboratory. It appears that in the present case no orders are
passed by the Drug Inspector for sending the sample to the Central
Drug Laboratory, may be on the ground that there is no order of the
learned Magistrate. However, if the matter is kept as it is until
the prosecution is filed and is brought before the Magistrate, in
the meantime the drug may expire. Therefore, the right, if any, in
future at the prosecution may be lost for all time to come for
getting the drug tested through Central Drug Laboratory. Hence, it
appears that the matter can be considered for sending the sample for
testing through Central Drug Laboratory.
It
may be recorded that this Court (Coram: (Ms.) H.N.Devani, J.) in
Special Criminal Application No.342 of 2007 in case of Zest
Pharma v. State of Gujarat and Anr.
vide its decision dated 28.12.2007 had observed that until the
complaint is filed before the Magistrate, such power could not be
exercised by the Magistrate and, therefore, the application was
rightly rejected by the Magistrate. However, in the very decision,
this Court took the view that no prejudice is caused if the drug
sent for testing to the Central Drug Laboratory under the provisions
of Section 25 of the Act.
In
view of the above, respondent No.2 is directed to sent the sample
for testing from amongst the samples taken by him for laboratory
testing or for production in the Court, to the Central Drug
Laboratory, Kolkata under the provisions of Section 25 of the Act
within two weeks from the date of receipt of the order of this Court
at the cost of the petitioner.
It
is also clarified that it would be open to the respondents to
proceed in pursuance of the show-cause notice in accordance with law
and the present order shall not operate as a bar in taking decision
as to whether the proceedings should be launched based on the report
of the State Laboratory or not.
The
petition is allowed to the aforesaid extent. Rule made absolute
accordingly. No order as to costs.
25.7.2008 (Jayant
Patel, J.)
vinod
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