State vs M/s. Scotch Pharmaceutical Works Madras (A1)

Singaravelu, J.—This is an appeal preferred by the State against the acquittal of the Respondent in C.C. No. 90 of 1976 of the Chief Judicial Magistrate, Tirchirapalli in respect of alleged offence u/s 18(l)(i) read with Section 27(b) of the Drugs and Cosmetics Act.

The Drug Inspector, P.W.1 laid a complaint before the Court that on 21st July, 1967 he inspected the Pharmacy Section of the Government Hospital, Karur and drew 450 ML of tincture benzoine manufactured by the Respondent. On an analysis of the sample by the Government Analyst, the same was found to be not of standard quality and the contents were found to be deficient to the extent of at least 23.7% and 31% respectively of the total solids and total balsamic acid. On 21st September, 1970, P.W.1 the Drug Inspector sent a requisition under Ex. P3 to the Medical Officer, Karur asking him to furnish the purchase particulars. P.W.1''s successor, P.W.2 received the reply under Ex.P4 and took up further proceedings. He sent a show cause notice to the Respondent Pharmaceutical Company, which evoked the reply under Ex.P6. P.W.2 then obtained sanction under Ex.P7 and launched the prosecution.

The Respondent pleaded not guilty to the charge and examined another Drug Inspector as D.W.2.

It was contended on behalf of the Respondent that the protocols of test or analysis were not furnished in the analytical report and, therefore, there was violation of R.46(5) of the Drugs and Cosmetics Act and Rules. It was then urged that the report has not been properly proved and that no opportunity was given to the Respondent to cross-examine the analyst. Learned Chief Judicial Magistrate accepted the contentions of the Respondent and acquitted him. Hence the appeal by the State.

Now, R.46(l) of the Drugs and Cosmetics Act and Rules refers to protocols of test or analysis and it is stated therein that they need not be mentioned in the Analyst''s report if the methods of test or analysis are mentioned in the particular pharmacopia. It is common ground that the tincture benzoin was manufactured by the Respondent according to the specification in I.P. 1955. It may be stated that I.P. 1955 does not give the methods of test or analysis for this drug with reference to total solids and this position is also conceded by P.W.1. Indian Pharmacopia (I.P) Act, 1966 admittedly came into force as and from 1st June, 1967. In this case, the drug in question was manufactured on 9th May, 1967 and the sample was taken on 21st July, 1967. So, the manufacture of the drug was prior to the date of coming into force of I.P. 1966. In other words, on the date of the manufacture I.P. 1955 alone was in force and there is no dispute about it.

Learned Counsel for the Respondent strenuously contended that in as much as the drug is governed by I.P. 1955, the prosecution should have examined the Public Analyst. It was also contended that u/s 25(4) the accused need not ask for sending the drug for analysis to the Central Drug Laboratory and that he can controvert the prosecution evidence by cross-examination and by eliciting admissions. As against this, it was argued on behalf of the prosecution that the accused had not exercised his option to send the drug to the Central Drug Laboratory and, therefore, he cannot be heard to comment upon the report of the Public Analyst. The fact that the accused did not choose to send the sample to the Central Drug Laboratory is not a point against the accused. The sample was taken on 21st July, 1967. The Analyst''s report, Ex. P3 is dated 15th September, 1970. The Complaint was laid in February, 1971 and the case was taken up for trial in 1976. Therefore, obviously, no purpose would be served by sending the drug to the Central Laboratory for analysis after a long lapse of time. In fact, the long delay in analysing the drug has also caused prejudice to the accused and there is no explanation whatsoever for the long delay in prosecution.

The next contention on behalf of the accused is that the protocols or analysis should have been mentioned in the report. Of course, there is a subsequent amendment of the Rules (sic). It was contended on behalf of the State that, on the date of the analysis on 15th September, 1970, I.P., 1966 was in force and therefore, a mere reference to the method as I.P., 1966 is sufficient. Reliance was placed on the ruling reported in T.A. Krishnaswamy Vs. State of Madras, to the effect that the report is not required to state protocols and that the result of the analysis is admissible in evidence. As already stated, this Supreme Court judgment was rendered prior to the amendment in question. The Respondent relied on the ruling reported in Raj Kishan Vs. State, wherein it was held that u/s 25 of the Act if the protocols test is included, it is not conclusive evidence without the oral testimony of the Analyst. It is common ground that the Public Analyst has not given evidence in this case, and though his report is legally admissible, it is not conclusive proof by itself and that the accused has been denied the valuable opportunity of cross-examining especially after the long delay of analysis. Learned Chief Judicial Magistrate has discussed this aspect elaborately and rightly came to the conclusion that when there was a denial of the report, Ex. P-3, it was incumbent on the prosecution to have tendered the Public Analyst for cross-examination and, consequently, the trial court held that the prosecution must fail on account of this technical defect. The Supreme Court decision (stated supra) has also held that the Rule 46(5) is mandatory and that the protocols of test or analysis should have been furnished in the analytical report.

Therefore, the position is though, the report is legally admissible in evidence, we have to hold that it is not conclusive proof in the circumstances of this case on hand, viz., the sample was taken on 1967, the analysis was in 1970 and the prosecution in 1976. For all these reasons I do not see any reason to interfere with the acquittal of the Respondent. Therefore, the acquittal of the Respondent is confirmed and the appeal is dismissed.