BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/11/2010 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.10748 of 2010 and M.P(MD)Nos.1 and 2 of 2010 1.M/s.Unicure (India) Pvt. Ltd., C 22, Sector 3, Noida 201 301. Gautam Budh Nagar District, Uttar Pradesh. 2.Abdul Mateen, Managing Director, cum Manufacturing Chemist, M/s.Unicure (India) Pvt. Ltd., C 22, Sector 3, Noida 201 301. Gautam Budh Nagar District, Uttar Pradesh. ... Petitioners Vs State represented by M.N.Sridhar, Drugs Inspector, Pudukkottai Range, Office of the Drugs Inspector, 1093, Kannadhasan Salai, Rajagopalapuram Post, Pudukkottai - 622 003. ... Respondent Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records comprised in C.C.No.799 of 2009 on the file of the learned Judicial Magistrate, Pudukkottai, and quash the same. !For Petitioners ... Mr.R.Devaraj ^For Respondent ... Mr.R.M.Anbunithi Government Advocate (Crl. Side) * * * * * :ORDER
This petition has been filed to quash the complaint in C.C.No.799 of 2009
on the file of the learned Judicial Magistrate, Pudukkottai.
2. The long and short of the facts absolutely necessary and germane for
the disposal of this petition would run thus:
The Drug Inspector filed the complaint before the learned Judicial
Magistrate, Pudukkottai, on 13.07.2009, who after taking cognizance issued
summons to the accused whereupon, they entered appearance and also filed the
discharge application which was dismissed. Subsequently, this petition has been
filed impugning and challenging the legality and maintainability of the
complaint itself and to quash the same.
3. Heard both sides.
4. Indubitably and indisputably, incontrovertibly and unassailably, the
facts absolutely necessary for the disposal of this petition would run thus:
The Drug Inspector took the sample of drug namely Enalapril Maleate
Tablets, from the Tamilnadu Medical Services Corporation Ltd., at Sipcot, Trichy
Road, Pudukkottai, on 24.07.2007 as per Rules and sent to the Tamil Nadu Drugs
Testing Laboratory and the Drugs Inspector obtained the Analyst’s report dated
27.02.2009 and communicated it to the accused, which was received by them on
08.04.2009. The accused sent a reply dated 05.05.2009 to the Drugs Inspector
disputing the correctness of the analysis conducted and sought for retesting.
Subsequently, the complaint was lodged by the Drugs Inspector on 13.07.2009.
5. The learned Counsel for the petitioners would put forth and set forth
his arguments which could be succinctly and precisely set out thus:
As per Section 25 (3) of the Drugs and Cosmetics Act, 1940, within twenty
eight days from the date of receipt of the copy of the Analyst’s report, the
accused should notify the Drugs Inspector or the Court before which any
proceedings are pending in respect of the said sample to the effect that the
accused intends to adduce evidence in controversion of the report. The accused
has also got the right to petition the Court after the complaint was filed so as
to get it retested and the Court also has got power under sub-section (4) of
Section 23 of the Act, to suo motu order for retesting by the Central Drugs
Laboratory if not already tested by the said Laboratory. The complainant has
also got the right to request the Court to send it to the Central Drugs
Laboratory for retesting. But, in this case, retesting was not done.
6. Whereas the learned Government Advocate (Criminal Side) would submit
that the accused has not sought for retesting by petitioning the Court
concerned, for which the learned Counsel for the petitioners would rely on the
decision of the Honourable Apex Court in Medicamen Biotech Limited and another
v. Rubina Bose, Durg Inspector reported in (2008) 7 Supreme Court Cases 196. An
excerpt from it, would run thus:
“16. It is, therefore, evident that the appellant had not once but on at
least two occasions and within 28 days of the receipt of the show-cause notice
clarified that it intended to adduce evidence to show that the test report of
the Government Analyst was not correct. The judgments cited by the learned
counsel for the respondent, therefore, do not apply to the facts of the case as
they were given in the context where the dealer/manufacturer had not expressed
its desire to challenge the veracity of the report of the Drugs Analyst.
17. In Brij Lal Mittal case (1998) 5 SCC 343 : 1998 SCC (Cri) 1315, this
Court held that a person could not claim that the fourth sample should be sent
to the Central Drugs Laboratory unless the requirements of sub-section (3) of
Section 25 was complied with. In that case, despite the service of the copies of
the Analyst’s report the manufacturer had not informed the Inspector within the
prescribed period that he intended to adduce evidence to controvert the report.
It was held in Brij Lal Mittal case: (SCC p. 346, para 5)
“5. 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 18-A (in this case the manufacturers) 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 its report override the report of the
Analyst) through the court accrues to a person accused in the case only if he
had earlier notified 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).”
(emphasis in original)
18. In Unique Farmaid case (1999) 8 SCC 190 : 1999 SCC (Cri) 1404 which
was a case under the Insecticides Act which has provisions analogous to Section
25(4) of the Act, the Court found that the accused had indeed made a request to
the Inspector for sending the sample for retesting within the prescribed time-
limit and as this request had not been accepted an important right given to an
accused had been rendered ineffective on which the proceedings could be quashed.
This is what the Court had to say: (SCC p. 197, paras 12-13)
“12. It cannot be gainsaid, therefore, that the respondents in these
appeals have been deprived of their valuable right to have the sample tested
from the Central Insecticides Laboratory under sub-section (4) of Section 24 of
the Act. Under sub-section (3) of Section 24 report signed by the Insecticide
Analyst shall be evidence of the facts stated therein and shall be conclusive
evidence against the accused only if the accused do not, within 28 days of the
receipt of the report, notify in writing to the Insecticides Inspector or the
court before which proceedings are pending that they intend to adduce evidence
to controvert the report. In the present cases the Insecticides Inspector was
notified that the accused intended to adduce evidence to controvert the report.
By the time the matter reached the court, the shelf life of the sample had
already expired and no purpose would have been served informing the court of
such an intention. The report of the Insecticide Analyst was, therefore, not
conclusive. A valuable right had been conferred on the accused to have the
sample tested from the Central Insecticides Laboratory and in the circumstances
of the case the accused have been deprived of that right, thus, prejudicing them
in their defence.
13. In these circumstances, the High Court was right in concluding that it
will be an abuse of process of court if the prosecution is continued against the
respondents, the accused persons. The High Court rightly quashed the criminal
complaint. We uphold the order of the High Court and would dismiss the appeals.”
We find that this judgment helps the case of the appellant rather than that of
the respondent because in spite of two communications from the appellant that it
intended to adduce evidence to controvert the facts given in the report of the
Government Analyst, the fourth sample with the Magistrate had not been sent for
reanalysis. The observations in Amery Pharmaceuticals case (2001) 4 SCC 382 :
2001 SCC (Cri) 724 are also to the same effect. We find that the aforesaid
interpretation supports the case of the appellants inasmuch they had been
deprived of the right to have the fourth sample tested from the Central Drugs
Laboratory. It is also clear that the complaint had been filed on 2-7-2002 which
is about a month short of the expiry date of the drug and as such had the
appellant-accused appeared before the Magistrate even on 2-7-2002 it would have
been well-nigh impossible to get the sample tested before its expiry.
19. In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs
Controller, and in arguments before us, it has been repeatedly stressed that the
delay in sending of the sample to the Central Drugs Laboratory had occurred as
the appellant had avoided service of summons on it till 9-5-2005. This is
begging the question. We find that there is no explanation as to why the
complaint itself had been filed about a month before the expiry of the shelf
life of the drug and concededly the filing of the complaint had nothing to do
with the appearance of the accused in response to the notices which were to be
issued by the Court after the complaint had been filed. Likewise, we observe
that the requests for retesting of the drug had been made by the appellant in
August/September 2001 as would be clear from the facts already given above and
there is absolutely no reason as to why the complaint could not have been filed
earlier and the fourth sample sent for retesting well within time. We are,
therefore, of the opinion that the facts of the case suggest that the appellants
have been deprived of a valuable right under Sections 25(3) and 25(4) of the Act
which must necessitate the quashing of the proceedings against them.”
7. Placing reliance on the aforesaid decision, the learned Counsel for the
petitioners would correctly point out that the shelf-life of the drug concerned
expired by 30.06.2009, whereas the complaint itself was lodged by the Drug
Inspector only on 13.07.2009; in such a case, the valuable right of the accused
to get retested the drug got frustrated. Accordingly, he prays for quashment.
8. The learned Government Advocate (Criminal Side) would submit that
sanctioning process took some time.
9. Be that as it may, the law is strict in this regard as highlighted by
the Honourable Apex Court in the cited decision supra, I would like to reproduce
hereunder sub-sections (3) and (4) of Section 25 of the Act:
“25.(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 18-A) 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 he intends to adduce
evidence in controversion 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 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 the authority of, the
Director of the Central Drugs Laboratory the result thereof, and such report
shall be conclusive evidence of the facts stated therein.”
10. A cumulative reading of the aforesaid provisions coupled with the
decision of the Honourable Apex Court in Medicamen Biotech Limited and another
v. Rubina Bose, Durg Inspector reported in (2008) 7 Supreme Court Cases 196,
would unambiguously and unequivocally make the point pellucidly and palpably
clear that well before the expiry of the shelf-life of the drug concerned, the
complaint should be filed, then only the accused also could get the drug
concerned retested by the Central Drugs Laboratory concerned. But, in this
case, that test was conducted only by the Tamil Nadu Drugs Testing Laboratory
and not by the Central Drugs Laboratory.
11. Hence, it is quite clear that the valuable right of the accused got
defeated and in such a case, there is no other go but to quash the complaint.
12. In the result, this Criminal Original Petition is allowed and the
complaint in C.C.No.799 of 2009 on the file of the learned Judicial Magistrate,
Pudukkottai, is quashed. Consequently, the connected Miscellaneous Petitions are
closed.
rsb
To
1.The Drugs Inspector,
Pudukkottai Range,
Office of the Drugs Inspector,
1093, Kannadhasan Salai,
Rajagopalapuram Post,
Pudukkottai – 622 003.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
3.The Judicial Magistrate, Pudukkottai.
