Balwinder Singh @ Balwinderjit Singh vs State of Punjab and Another

Sabina, J.—This petition has been filed by the petitioner u/s 482 of the Code of Criminal Procedure, 1973 for quashing of criminal complaint dated 26.2.2008 (Annexure P-10) u/s 18(a)(i), 27(c) of the Drugs and Cosmetics Act, 1940 (the Act for short) and all the consequential proceedings arising therefrom including summoning order dated 24.7.2008 (Annexure P-11). Prosecution story, in brief, is that on 28.9.2004, M/s Mahajan Medical Store, Hanuman Chowk, Gurdaspur was inspected by the Drugs Inspector. During inspection, following drugs were taken as sample for test and analysis:-

As per the report of the Analyst, the samples were not found to be of standard quality. Hence, the complaint was filed.

Learned counsel for the petitioners has, inter alia, submitted that the samples of tablets Cetrizine, Bralgag and Diclofenac Sodium had been manufactured in February 2004, May 2004 and October 2003 and expired in January 2007, April 2006 and September 2005 respectively. Initially, notice was issued to M/s Mahajan Medical Store on 9.5.2005 and in turn Raman Mahajan submitted that M/s Gag Pharmaceuticals was the manufacturer of the drugs. On receipt of notice dated 30.6.2005 (Annexure P-2), petitioner requested that the sample be sent for re-checking/re-testing. Complainant in question was filed on 26.2.2008 after the drugs had expired and consequently, petitioner''s right to get second sample for re-testing had been frustrated.

Learned State counsel, on the other hand, has opposed the petition.

Section 25 of the Drugs and Cosmetics Act, 1940 (the Act for short) reads as under:-

Reports of Government Analysts.-

(1) The Government Analyst to whom a sample of any drug 1 *[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 2 *[and another copy to the person, if any, whose name, address and other particulars have been disclosed u/s 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 3 *[or the person whose name, address and other particulars have been disclosed u/s 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 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 a controversion of a Government Analyst''s report, the Court may, of its own motion or in its direction at the request either of the complainant or the accused, cause the sample of the drug 1 *[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.

(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.

Thus, as per the above provision, the petitioners could have availed their legal right to get the sample re-tested from Central Drugs Laboratory as initially the sample had been got analysed from Government analyst. The stage when the petitioners could seek re-analysis of the sample is after the complaint had been filed because the said request could be made by the petitioners to the Court for re-analysis of the sample.

In the present case, petitioner had duly sent reply to the notice dated 30.6.2005 (Annexure P-2) that the second sample be sent for re-analysis. The said reply has been placed on record as Annexure P-3. M/s Gag Pharmaceuticals again received notices Annexures P-4 and P-5 and the same were replied by it vide Annexure P-6 and P-7 requesting for sending the samples for re-testing. Petitioner has placed on record his replies Annexures P-3, P-6 and P-7, wherein, he had sought re-testing of the samples, although, receipt of the said replies had been denied by the State in its reply. Since in the present case, the complaint in question was filed after the expiry of the shelf life of the drugs in question, petitioner had lost his valuable right to seek re-analysis of the sample as the request could have been made by the petitioner to the Court for re-analysis of the sample. The complaint in question is, thus, liable to be quashed for this reason alone that at the time of filing of the complaint, shelf life of the drugs in question had already expired and the right of the petitioner to get the second sample re-tested had been infringed. Accordingly, this petition is allowed. Criminal complaint dated 26.2.2008 (Annexure P-10) u/s 18(a)(i), 27(c) of the Act and all the consequential proceedings arising therefrom including summoning order dated 24.7.2008 (Annexure P-11) are quashed.