Diwan Chand vs State of Punjab

V.S. Aggarwal, J.

This is a petition filed by Diwan Chand (hereinafter described as `the petitioner'') seeking quashing of the complaint filed by the respondents under Section 18(a)(i) and Section 27(d) read with Section 18(a)(vi) of the Drugs and Cosmetics Act, 1940 (hereinafter described as `the Act'').

The relevant facts that a complaint had been filed against the petitioner asserting that on 12.2.1993, the Drug Inspector visited the shop of M/s Durga Medical Store, Sunam. He took samples of Paed. Sulphamethoxazole and Trimethoprim mixture. The manufacturing date of the same was July 1, 1992 and the expiry date was June, 1994. The samples of the drugs were sent for analysis to the Government Analyst, Punjab. He declared the sample below standard and spurious. After receipt of the report, the Drugs Inspector issued notice dated 11.5.1993 and 21.6.1993. The petitioner sent reply dated 2.7.1993 and expressed a desire that second sample be got tested from some reliable laboratory and this sample could not be of substandard quality. The petitioner wrote subsequent letters but with no effect. After the sanction was received, the complaint was filed in the Court of Chief Judicial Magistrate, Sangrur.

The sole ground pressed by the learned counsel for the petitioner for quashing of the complaint and subsequent proceedings was that complaint has been filed after expiry of the shelf life of the product or the expiry date and a valuable right of the petitioner to get the sample reanalysed has been lost. He contended further that despite the letter of the petitioner, the second sample was not sent for analysis with the Central Laboratory.

In the reply filed by the respondents, it has been alleged that on receipt of the report of the Analyst, a notice was issued but within 28 days the reply was not sent. It was sent on 2.7.1993. The complaint was filed in Court on 24.5.1994. The accusedpetitoner was summoned on 24.5.1994 and appeared on 16.8.1994.

As referred to above already, the sole argument advanced was that the complaint was filed after the expiry date of the product and, therefore, a valuable right was lost to the petitioner to get the sample reanalysed from the Central Drugs Laboratory. Subsections (1) to (4) of Section 25 of the Act read :

"25. (1) The Government Analyst to whom a sample of any drug (or cosmetic) has been submitted for test or analysis under subsection (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 (and another copy to the person, if any, whose name, address and other particulars have been disclosed under Section 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 (or the person whose name, address and other particulars have been disclosed under Section 18A has, within twentyeight 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 subsection (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 diseration at the request either of the complainant or the accused cause the sample of the drug (or cosmetic) produced before the Magistrate under subsection (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."

Perusal of the aforesaid shows that on receipt of the report of the Government Analyst, a copy has to be sent to the concerned person (petitioner in this case). That person has within 28 days of the receipt of the copy, a right to convey that he intends to adduce evidence in controversion of the report. Subsection (4) of Section 25 of the Act makes the position clear that unless the sample has already been tested by the Central Drugs Laboratory, the Court in his discretion can send the sample to the Central Drugs Laboratory. It is, thus, a valuable right of the concerned person.

The provisions of Section 25 of the Drugs and Cosmetics Act, 1940 are identical with Section 24 of the Insecticides Act, 1968. Therefore, the precedents of the Insecticides Act would be of great help.

In the case of Bhai Manjit Singh, Managing Director, Montari Industries Ltd. v. State of Punjab, 1992(1) RCR 552, the sample of insecticide was not found according to specification. The complaint was filed after the shelf life. The prosecution was quashed by this Court and in paragraph 8 it was observed :

"The mere fact that a show cause notice was issued to the manufacturing firm vide registered letter dated 15.3.1989 or that copy of the analysis report was also sent along with the show cause notice to the manufacturing concern would not, in any manner, absolve the Insecticide Inspector from not filing the complaint in the court of Chief Judicial Magistrate, Amritsar, immediately after the receipt of the report in March, 1989 or thereabout. Another significant aspect of the case is that even the sanction for launching the prosecution had been granted by the competent authority in the instant case on 9.3.1990 i.e. much before the expiry date of the sample of Milron i.e. September, 1990. No plausible explanation has been put forth on behalf of the State as to why the Insecticide Inspector concerned couldn''t file complaint in this case within a reasonable period of grant of sanction on 9.3.1990. It is quite evident that for no fault of their own, the petitioners have been deprived of their valuable right for getting the sample reanalysed from the Central Insecticide Laboratory as provided under Section 24(4) of the Act."

Same question again came up for consideration in the case of M/s Solar Syndicate, Dungri v. State of Punjab, 1994(1) RCR 140. The complaint was filed after the shelf life of the insecticide. Keeping in view the valuable right of the person to get it reanalysed from the Central Laboratory, it was quashed. The decision in the case of M/s Raj Hans Chemicals v. State of Punjab, 1994 All India Prevention of Food Adulteration Journal 531 was no different. The Court held that the accused person had a second right available to appear before the Magistrate and get the second sample analysed. Once the complaint is filed after the expiry of the shelf life, it was lost. In paragraph 6 it was held :

"It will be seen that two independent rights are given to the accused to get a sample retested under Section 24(3) and 24(4) of the Act. In the present case, the petitioner did exercise his right under Section 24(3) of the Act. Vide his explanation/application dated 12th November, 1990, a request was made to the Insecticide Inspector for retesting the sample by the Central Insecticides Laboratory. The second right which was available under Section 24(4) of the Act, could not be exercised by the petitioner, as the date on which the petitioner was to appear before the SubDivisional Magistrate was after the expiry of the shelf life of the insecticide of which sample had been taken. In all the above referred to cases it was held that if the petitioner when requested to appear before the court, is deprived of his right to get the sample retested under section 24(4) of the Act, as on that date the shelf life of the insecticide had expired, then the proceedings are liable to be quashed."

The position in the present case is identical. Admittedly, the complaint was filed and the petitioner summoned after the expiry date of the shelf life of product. In the complaint itself, it has been mentioned that a registered notice was issued on 11.5.1993. The petitioner denies that he has received the notice dated 11.5.1993. There is no reason to disbelieve the petitioner. If such a notice had been received, then there was no occasion to issue another notice. Within 28 days of the notice of 21.6.1993, intention was shown that another test may be conducted of the sample. It was not got done. Instead the matter was delayed and complaint filed after such a long time when the shelf life had expired in June, 1994. The petitioner was summoned and appeared in Court in August, 1994. In this process, a valuable right contained in the Drugs and Cosmetics Act, 1940 was lost to the petitioner. The complaint is liable to be quashed.

For these reasons, the petition is accepted. The complaint and the subsequent proceedings thereto are quashed.