State of Haryana and another vs Avanindra Kumar Bansal

V.S. Aggarwal, J.

This is a revision petition filed by the State of Haryana directed against the judgment passed by the learned Additional Sessions Judge, Kaithal dated 2.3.1993. By virtue of the impugned judgment, the learned Additional Sessions Judge, set aside the order passed by the Chief Judicial Magistrate, Kurukshetra dated 30.4.1990. By the impugned order, the respondents were discharged.

On 13.4.1983, the Drug Inspector took sample of medicine Gentamicin eye drops from the premises of Haryana Medical Stores, Dhand, on 19.4.1983 one part of the sample was sent to Government Analyst, Haryana, Chandigarh. Government Analyst in the reports dated 7.10.1983 declared that the sample did not contain Gentamicin base against the located quantity of 0.6 M.G. as indicated on the table of the sample. A copy of the report was sent to Haryana Medical Store, Dhand. It was directed to disclose the name and particulars of the persons from whom the said drug has been purchased.

On 8.11.1983 partner of Haryana Medical Store, Dhand informed the Drug Analyst through a letter that the medicine had been purchased from Kurukshetra Medicines Traders, Karnal. The said firm namely Kurukshetra Medicines Traders, Karnal was contacted on 18.11.1983. Shri Bharat Bhusan Sharma, proprietor of the concern disclosed that the medicine in question was purchased from Shree Laxmi Pharmaceuticals, Jaipur (respondent No. 6). On 11th April, 1984 a copy of the report of Government Analyst and the 3rd sealed portion of the sample was supplied to respondent No. 6. It was alleged that the said medicine i.e. Gentamicin eye drops had been manufactured by respondent No. 6. Respondents No. 1 to 4 are the partners of respondent No. 6. On 17.4.1984 the accused respondents challenged the test report of the Government Analyst and alleged that the sample was as per the quality and standard mentioned.

Once the complaint had been filed, on 21.12.1988 the respondents moved an application under section 25(4) of the Drugs & Cosmetics Act, 1940 (hereinafter described as the ''Act''). It prayed for fresh analysis of the sample by the Central Drugs Laboratory, Calcutta. The Chief Judicial Magistrate sent the sample and report dated 31.3.1989 dated 31.3.1989. The sample could not be tested because the shelf life had expired way back in April, 1984.

The learned Additional Sessions Judge vide the impugned judgment held that respondents had been deprived of their statutory rights under the Act because the complaint was filed after the expiry of the shelf life. The charge against the respondents became groundless. Accordingly the learned Additional Sessions Judge accepted the revision petition and passed the impugned judgment.

Learned counsel appearing for the State of Haryana urged that as per the report of the Government Analyst the sample was found to be sub standard and, therefore, there was no ground to discharge the respondents. In his opinion the order of the Additional Sessions Judge has resulted in grave miscarriage of justice.

Section 25 of the Act provides the answer to the question counsel for the petitioner. The relevant provisions are being reproduced below for the sake of convenience :

"25. Report of Government Analysts :

(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 there of 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 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 or 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 discretion 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.

(5) The cost of a test or analysis made by the Central Drugs Laboratory under subsection (4) shall be paid by the complainant or accused as the Court shall direct."

A bare perusal of the provisions referred to above show that within 28 days of receipt of copy of the report of the Analyst, the person whose name or address has been disclosed u/s 18 of the Act, can notify in writing to the Inspector or the Court that he intend; to adduce evidence in controversion of the report. Under subsection 4 to section 25, when such an intention has been notified, it can request the Court for sending the sample of the Central Drugs Laboratory and the report of the Central Drugs Laboratory would be taken to be conclusive.

These provisions have been based on justice and fair play. It is to ensure that no prejudice is caused to the concerned person taken to be responsible under the Drugs & Cosmetics Act, 1940. It is a valuable right of the concerned person to get the sample tested from the Central Drugs Laboratory. If for any Act or mission of the State the said right is lost, prejudice must be taken to have been caused to the accused person.

Provisions of Insecticides Act (Section 24) of the year 1968 are paramateria with 25 of the Act. Therefore, the decision under the provisions of section 24(4) of Insecticides Act would be good precedent. Reference to two such precedents from this Court would be advantageous and in the fitness of things. In the case of S.K. Ahooja v. State of Haryana and others, 1989(1) RCR 596 , the sample of pesticide was found to be sub standard by the Analyst and a complaint was filed. Accused was summoned after the expiry date of pesticide. It was held that this deprived the accused of his right to get the second sample examined by Central Insecticides Laboratory. Same view prevailed in the case of M/s. Jindal Brothers v. State of Punjab, 1993(2) RCR 524.

In the present case also, the shelf life of Gentamicin '' had expired much before the complaint was filed in Court. A valuable right was thus lost to the respondents to get the sample tested from the Central Drugs Laboratory. Learned Additional Sessions Judge, therefore, rightly held that respondents were deprived of their statutory right and discharged the respondents. There is no ground to interfere in the impugned judgment of the learned Additional Sessions Judge.

For these reasons, revision petition being without, merit, fails and is dismissed.