{"id":34730,"date":"2010-11-25T00:00:00","date_gmt":"2010-11-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-unicure-india-pvt-ltd-vs-state-represented-by-on-25-november-2010"},"modified":"2016-11-01T15:06:33","modified_gmt":"2016-11-01T09:36:33","slug":"ms-unicure-india-pvt-ltd-vs-state-represented-by-on-25-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-unicure-india-pvt-ltd-vs-state-represented-by-on-25-november-2010","title":{"rendered":"M\/S.Unicure (India) Pvt. Ltd vs State Represented By on 25 November, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
M\/S.Unicure (India) Pvt. Ltd vs State Represented By on 25 November, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 25\/11\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nCrl.O.P.(MD).No.10748 of 2010\nand\nM.P(MD)Nos.1 and 2 of 2010\n\n1.M\/s.Unicure (India) Pvt. Ltd.,\n  C 22, Sector 3,\n  Noida 201 301.\n  Gautam Budh Nagar District,\n  Uttar Pradesh.\n\n2.Abdul Mateen,\n  Managing Director, cum\n  Manufacturing Chemist,\n  M\/s.Unicure (India) Pvt. Ltd.,\n  C 22, Sector 3,\n  Noida 201 301.\n  Gautam Budh Nagar District,\n  Uttar Pradesh.\t\t\t\t... Petitioners\n\nVs\n\nState represented by\nM.N.Sridhar,\nDrugs Inspector,\nPudukkottai Range,\nOffice of the Drugs Inspector,\n1093, Kannadhasan Salai,\nRajagopalapuram Post,\nPudukkottai - 622 003.\t\t\t... Respondent\n\nPrayer\n\nPetition filed under Section 482 of the Code of Criminal Procedure, to call for\nthe records comprised in C.C.No.799 of 2009 on the file of the learned Judicial\nMagistrate, Pudukkottai, and quash the same.\n\n!For Petitioners ... Mr.R.Devaraj\n^For Respondent  ... Mr.R.M.Anbunithi\n\t\t     Government Advocate (Crl. Side)\n\t\t\t\t\t\t\t\n* * * * *\n\n:ORDER\n<\/pre>\n
\tThis petition has been filed to quash the complaint in C.C.No.799 of 2009
\non the file of the learned Judicial Magistrate, Pudukkottai.\n<\/p>\n
\t2. The long and short of the facts absolutely necessary and germane for
\nthe disposal of this petition would run thus:\n<\/p>\n
\tThe Drug Inspector filed the complaint before the learned Judicial
\nMagistrate, Pudukkottai, on 13.07.2009, who after taking cognizance issued
\nsummons to the accused whereupon, they entered appearance and also filed the
\ndischarge application which was dismissed.  Subsequently, this petition has been
\nfiled impugning and challenging the legality and maintainability of the
\ncomplaint itself and to quash the same.\n<\/p>\n
\t3. Heard both sides.\n<\/p>\n
\t4. Indubitably and indisputably, incontrovertibly and unassailably, the
\nfacts absolutely necessary for the disposal of this petition would run thus:
\n\tThe Drug Inspector took the sample of drug namely Enalapril Maleate
\nTablets, from the Tamilnadu Medical Services Corporation Ltd., at Sipcot, Trichy
\nRoad, Pudukkottai, on 24.07.2007 as per Rules and sent to the Tamil Nadu Drugs
\nTesting Laboratory and the Drugs Inspector obtained the Analyst’s report dated
\n27.02.2009 and communicated it to the accused, which was received by them on
\n08.04.2009.  The accused sent a reply dated 05.05.2009 to the Drugs Inspector
\ndisputing the correctness of the analysis conducted and sought for retesting.
\nSubsequently, the complaint was lodged by the Drugs Inspector on 13.07.2009.\n<\/p>\n
\t5. The learned Counsel for the petitioners would put forth and set forth
\nhis arguments which could be succinctly and precisely set out thus:
\n\tAs per Section 25 (3) of the Drugs and Cosmetics Act, 1940, within twenty
\neight days from the date of receipt of the copy of the Analyst’s report, the
\naccused should notify the Drugs Inspector or the Court before which any
\nproceedings are pending in respect of the said sample to the effect that the
\naccused intends to adduce evidence in controversion of the report.  The accused
\nhas also got the right to petition the Court after the complaint was filed so as
\nto get it retested and the Court also has got power under sub-section (4) of
\nSection 23 of the Act, to suo motu order for retesting by the Central Drugs
\nLaboratory if not already tested by the said Laboratory.  The complainant has
\nalso got the right to request the Court to send it to the Central Drugs
\nLaboratory for retesting.  But, in this case, retesting was not done.\n<\/p>\n
\t6. Whereas the learned Government Advocate (Criminal Side) would submit
\nthat the accused has not sought for retesting by petitioning the Court
\nconcerned, for which the learned Counsel for the petitioners would rely on the
\ndecision of the Honourable Apex Court in Medicamen Biotech Limited and another
\nv. Rubina Bose, Durg Inspector reported in (2008) 7 Supreme Court Cases 196.  An
\nexcerpt from it, would run thus:\n<\/p>\n
\t“16. It is, therefore, evident that the appellant had not once but on at
\nleast two occasions and within 28 days of the receipt of the show-cause notice
\nclarified that it intended to adduce evidence to show that the test report of
\nthe Government Analyst was not correct. The judgments cited by the learned
\ncounsel for the respondent, therefore, do not apply to the facts of the case as
\nthey were given in the context where the dealer\/manufacturer had not expressed
\nits desire to challenge the veracity of the report of the Drugs Analyst.\n<\/p>\n
\t17. In Brij Lal Mittal case  (1998) 5 SCC 343 : 1998 SCC (Cri) 1315, this
\nCourt held that a person could not claim that the fourth sample should be sent
\nto the Central Drugs Laboratory unless the requirements of sub-section (3) of
\nSection 25 was complied with. In that case, despite the service of the copies of
\nthe Analyst’s report the manufacturer had not informed the Inspector within the
\nprescribed period that he intended to adduce evidence to controvert the report.
\nIt was held in Brij Lal Mittal case: (SCC p.\t346, para 5)
\n“5. From a bare perusal of sub-section (3) it is manifest that the report of the
\nGovernment Analyst shall be evidence of the facts stated therein and such
\nevidence shall be conclusive unless the person from whom the sample was taken or
\nthe person whose name, address or other particulars have been disclosed under
\nSection 18-A (in this case the manufacturers) has within 28 days of the receipt
\nof the report notified in writing the Inspector or the court before which any
\nproceedings in respect of the sample are pending that he intends to adduce
\nevidence in controversion of the report. Sub-section (4) also makes it
\nabundantly clear that the right to get the sample tested by the Central
\nGovernment Laboratory (so as to make its report override the report of the
\nAnalyst) through the court accrues to a person accused in the case only if he
\nhad earlier notified in accordance with sub-section (3) his intention of
\nadducing evidence in controversion of the report of the Government Analyst. To
\nput it differently, unless requirement of sub-section (3) is complied with by
\nthe person concerned he cannot avail of his right under sub-section (4).”
\n\t(emphasis in original)\n<\/p>\n
\t18. In Unique Farmaid case (1999) 8 SCC 190 : 1999 SCC (Cri) 1404 which
\nwas a case under the Insecticides Act which has provisions analogous to Section
\n25(4) of the Act, the Court found that the accused had indeed made a request to
\nthe Inspector for sending the sample for retesting within the prescribed time-
\nlimit and as this request had not been accepted an important right given to an
\naccused had been rendered ineffective on which the proceedings could be quashed.
\nThis is what the Court had to say: (SCC p. \t197, paras 12-13)
\n\t“12. It cannot be gainsaid, therefore, that the respondents in these
\nappeals have been deprived of their valuable right to have the sample tested
\nfrom the Central Insecticides Laboratory under sub-section (4) of Section 24 of
\nthe Act. Under sub-section (3) of Section 24 report signed by the Insecticide
\nAnalyst shall be evidence of the facts stated therein and shall be conclusive
\nevidence against the accused only if the accused do not, within 28 days of the
\nreceipt of the report, notify in writing to the Insecticides Inspector or the
\ncourt before which proceedings are pending that they intend to adduce evidence
\nto controvert the report. In the present cases the Insecticides Inspector was
\nnotified that the accused intended to adduce evidence to controvert the report.
\nBy the time the matter reached the court, the shelf life of the sample had
\nalready expired and no purpose would have been served informing the court of
\nsuch an intention. The report of the Insecticide Analyst was, therefore, not
\nconclusive. A valuable right had been conferred on the accused to have the
\nsample tested from the Central Insecticides Laboratory and in the circumstances
\nof the case the accused have been deprived of that right, thus, prejudicing them
\nin their defence.\n<\/p>\n
\t13. In these circumstances, the High Court was right in concluding that it
\nwill be an abuse of process of court if the prosecution is continued against the
\nrespondents, the accused persons. The High Court rightly quashed the criminal
\ncomplaint. We uphold the order of the High Court and would dismiss the appeals.”\n<\/p>\n
We find that this judgment helps the case of the appellant rather than that of
\nthe respondent because in spite of two communications from the appellant that it
\nintended to adduce evidence to controvert the facts given in the report of the
\nGovernment Analyst, the fourth sample with the Magistrate had not been sent for
\nreanalysis. The observations in Amery Pharmaceuticals case (2001) 4 SCC 382 :
\n2001 SCC (Cri) 724 are also to the same effect. We find that the aforesaid
\ninterpretation supports the case of the appellants inasmuch they had been
\ndeprived of the right to have the fourth sample tested from the Central Drugs
\nLaboratory. It is also clear that the complaint had been filed on 2-7-2002 which
\nis about a month short of the expiry date of the drug and as such had the
\nappellant-accused appeared before the Magistrate even on 2-7-2002 it would have
\nbeen well-nigh impossible to get the sample tested before its expiry.\n<\/p>\n
\t19. In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs
\nController, and in arguments before us, it has been repeatedly stressed that the
\ndelay in sending of the sample to the Central Drugs Laboratory had occurred as
\nthe appellant had avoided service of summons on it till 9-5-2005. This is
\nbegging the question. We find that there is no explanation as to why the
\ncomplaint itself had been filed about a month before the expiry of the shelf
\nlife of the drug and concededly the filing of the complaint had nothing to do
\nwith the appearance of the accused in response to the notices which were to be
\nissued by the Court after the complaint had been filed. Likewise, we observe
\nthat the requests for retesting of the drug had been made by the appellant in
\nAugust\/September 2001 as would be clear from the facts already given above and
\nthere is absolutely no reason as to why the complaint could not have been filed
\nearlier and the fourth sample sent for retesting well within time. We are,
\ntherefore, of the opinion that the facts of the case suggest that the appellants
\nhave been deprived of a valuable right under Sections 25(3) and 25(4) of the Act
\nwhich must necessitate the quashing of the proceedings against them.”\n<\/p>\n
\t7. Placing reliance on the aforesaid decision, the learned Counsel for the
\npetitioners would correctly point out that the shelf-life of the drug concerned
\nexpired by 30.06.2009, whereas the complaint itself was lodged by the Drug
\nInspector only on 13.07.2009; in such a case, the valuable right of the accused
\nto get retested the drug got frustrated. Accordingly, he prays for quashment.\n<\/p>\n
\t8. The learned Government Advocate (Criminal Side) would submit that
\nsanctioning process took some time.\n<\/p>\n
\t9. Be that as it may, the law is strict in this regard as highlighted by
\nthe Honourable Apex Court in the cited decision supra, I would like to reproduce
\nhereunder sub-sections (3) and (4) of Section 25 of the Act:
\n\t“25.(3). Any document purporting to be a report signed by a Government
\nAnalyst under this Chapter shall be evidence of the facts stated therein, and
\nsuch evidence shall be conclusive unless the person from whom the sample was
\ntaken (or the person whose name, address and other particulars have been
\ndisclosed under Section 18-A) has, within twenty-eight days of the receipt of a
\ncopy of the report, notified in writing the Inspector or the Court before which
\nany proceedings in respect of the sample are pending that he intends to adduce
\nevidence in controversion of the report.\n<\/p>\n
\t(4) Unless the sample has already been tested or analysed in the Central
\nDrugs Laboratory, where a person has under sub-section (3) notified his
\nintention of adducing evidence in controversion of a Government Analyst’s
\nreport, the Court may, of its own motion or in its discretion at the request
\neither of the complainant or the accused, cause the sample of the drug (or
\ncosmetic) produced before the Magistrate under sub-section (4) of Section 23 to
\nbe sent for test or analysis to the said Laboratory, which shall make the test
\nor analysis and report in writing signed by, or under the authority of, the
\nDirector of the Central Drugs Laboratory the result thereof, and such report
\nshall be conclusive evidence of the facts stated therein.”\n<\/p>\n
\t10. A cumulative reading of the aforesaid provisions coupled with the
\ndecision of the Honourable Apex Court in Medicamen Biotech Limited and another
\nv. Rubina Bose, Durg Inspector reported in (2008) 7 Supreme Court Cases 196,
\nwould unambiguously and unequivocally make the point pellucidly and palpably
\nclear that well before the expiry of the shelf-life of the drug concerned, the
\ncomplaint should be filed, then only the accused also could get the drug
\nconcerned retested by the Central Drugs Laboratory concerned.  But, in this
\ncase, that test was conducted only by the Tamil Nadu Drugs Testing Laboratory
\nand not by the Central Drugs Laboratory.\n<\/p>\n
\t11. Hence, it is quite clear that the valuable right of the accused got
\ndefeated and in such a case, there is no other go but to quash the complaint.\n<\/p>\n
\t12. In the result, this Criminal Original Petition is allowed and the
\ncomplaint in C.C.No.799 of 2009 on the file of the learned Judicial Magistrate,
\nPudukkottai, is quashed. Consequently, the connected Miscellaneous Petitions are
\nclosed.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
1.The Drugs Inspector,
\n  Pudukkottai Range,
\n  Office of the Drugs Inspector,
\n  1093, Kannadhasan Salai,
\n  Rajagopalapuram Post,
\n  Pudukkottai – 622 003.\n<\/p>\n
2.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.\n<\/p>\n
3.The Judicial Magistrate, Pudukkottai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M\/S.Unicure (India) Pvt. Ltd vs State Represented By on 25 November, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-34730","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM\/S.Unicure (India) Pvt. 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