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Judgment
G. Rajasuria, J.—This petition has been filed to quash the complaint in C.C. No. 799 of 2009 on the file of the learned Judicial Magistrate,
Pudukkottai.
The long and short of the facts absolutely necessary and germane for the disposal of this petition would run thus:
The Drug Inspector filed the complaint before the learned Judicial Magistrate, Pudukkottai, on 13.07.2009, who after taking cognizance issued
summons to the accused whereupon, they entered appearance and also filed the discharge application which was dismissed. Subsequently, this
petition has been filed impugning and challenging the legality and maintainability of the complaint itself and to quash the same.
Heard both sides.
Indubitably and indisputably, incontrovertibly and unassailably, the facts absolutely necessary for the disposal of this petition would run thus:
The Drug Inspector took the sample of drug namely Enalapril Maleate Tablets, from the Tamilnadu Medical Services Corporation Ltd., at Sipcot,
Trichy Road, Pudukkottai, on 24.07.2007 as per Rules and sent to the Tamil Nadu Drugs Testing Laboratory and the Drugs Inspector obtained
the Analyst''s report dated 27.02.2009 and communicated it to the accused, which was received by them on 08.04.2009. The accused sent a
reply dated 05.05.2009 to the Drugs Inspector disputing the correctness of the analysis conducted and sought for retesting. Subsequently, the
complaint was lodged by the Drugs Inspector on 13.07.2009.
The learned Counsel for the Petitioners would put forth and set forth his arguments which could be succinctly and precisely set out thus:
As per Section 25(3) of the Drugs and Cosmetics Act, 1940, within twenty eight days from the date of receipt of the copy of the Analyst''s report,
the accused should notify the Drugs Inspector or the Court before which any proceedings are pending in respect of the said sample to the effect
that the accused intends to adduce evidence in controversion of the report. The accused has also got the right to petition the Court after the
complaint was filed so as to get it retested and the Court also has got power under Sub-section (4) of Section 23 of the Act, to suo motu order for
retesting by the Central Drugs Laboratory if not already tested by the said Laboratory. The complainant has also got the right to request the Court
to send it to the Central Drugs Laboratory for retesting. But, in this case, retesting was not done.
Whereas the learned Government Advocate (Criminal Side) would submit that the accused has not sought for retesting by petitioning the Court
concerned, for which the learned Counsel for the Petitioners would rely on the decision of the Honourable Apex Court in Medicamen Biotech Ltd.
and Another Vs. Rubina Bose, Drug Inspector, . An excerpt from it, would run thus:
It is, therefore, evident that the Appellant had not once but on at least two occasions and within 28 days of the receipt of the show-cause
notice clarified that it intended to adduce evidence to show that the test report of the Government Analyst was not correct. The judgments cited by
the learned Counsel for the Respondent, therefore, do not apply to the facts of the case as they were given in the context where the
dealer/manufacturer had not expressed its desire to challenge the veracity of the report of the Drugs Analyst.
In State of Haryana Vs. Brij Lal Mittal and Others, , this Court held that a person could not claim that the fourth sample should be sent to the
Central Drugs Laboratory unless the requirements of Sub-section (3) of Section 25 was complied with. In that case, despite the service of the
copies of the Analyst''s report the manufacturer had not informed the Inspector within the prescribed period that he intended to adduce evidence to
controvert the report. It was held in Brij Lal Mittal case: (SCC p. 346, para 5)
From a bare perusal of Sub-section (3) it is manifest that the report of the Government Analyst 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 or other particulars have
been disclosed u/s 18-A (in this case the manufacturers) has within 28 days of the receipt 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. Sub-section
(4) also makes it abundantly clear that the right to get the sample tested by the Central Government Laboratory (so as to make its report override
the report of the Analyst) through the court accrues to a person accused in the case only if he had earlier notified in accordance with Sub-section
(3) his intention of adducing evidence in controversion of the report of the Government Analyst. To put it differently, unless requirement of Sub-
section (3) is complied with by the person concerned he cannot avail of his right under Sub-section (4).
(emphasis in original)
In State of Haryana Vs. Unique Farmaid P. Ltd. Ors., which was a case under the Insecticides Act which has provisions analogous to Section
25(4) of the Act, the Court found that the accused had indeed made a request to the Inspector for sending the sample for retesting within the
prescribed time-limit and as this request had not been accepted an important right given to an accused had been rendered ineffective on which the
proceedings could be quashed. This is what the Court had to say: (SCC p. 197, paras 12-13)
It cannot be gainsaid, therefore, that the Respondents in these appeals have been deprived of their valuable right to have the sample tested
from the Central Insecticides Laboratory under Sub-section (4) of Section 24 of the Act. Under Sub-section (3) of Section 24 report signed by
the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not,
within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the court before which proceedings are pending that
they intend to adduce evidence to controvert the report. In the present cases the Insecticides Inspector was notified that the accused intended to
adduce evidence to controvert the report. By the time the matter reached the court, the shelf life of the sample had already expired and no purpose
would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable
right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case
the accused have been deprived of that right, thus, prejudicing them in their defence.
In these circumstances, the High Court was right in concluding that it will be an abuse of process of court if the prosecution is continued against
the Respondents, the accused persons. The High Court rightly quashed the criminal complaint. We uphold the order of the High Court and would
dismiss the appeals.
We find that this judgment helps the case of the Appellant rather than that of the Respondent because in spite of two communications from the
Appellant that it intended to adduce evidence to controvert the facts given in the report of the Government Analyst, the fourth sample with the
Magistrate had not been sent for reanalysis. The observations in Amery Pharmaceuticals and Another Vs. State of Rajasthan, are also to the same
effect. We find that the aforesaid interpretation supports the case of the Appellants inasmuch they had been deprived of the right to have the fourth
sample tested from the Central Drugs Laboratory. It is also clear that the complaint had been filed on 2-7-2002 which is about a month short of
the expiry date of the drug and as such had the Appellant-accused appeared before the Magistrate even on 2-7-2002 it would have been well-
nigh impossible to get the sample tested before its expiry.
In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that
the delay in sending of the sample to the Central Drugs Laboratory had occurred as the Appellant had avoided service of summons on it till 9-5-
2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the
expiry of the shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to
the notices which were to be issued by the Court after the complaint had been filed. Likewise, we observe that the requests for retesting of the
drug had been made by the Appellant in August/September 2001 as would be clear from the facts already given above and there is absolutely no
reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting well within time. We are, therefore, of the
opinion that the facts of the case suggest that the Appellants have been deprived of a valuable right under Sections 25(3) and 25(4) of the Act
which must necessitate the quashing of the proceedings against them.
Placing reliance on the aforesaid decision, the learned Counsel for the Petitioners would correctly point out that the shelf-life of the drug
concerned expired by 30.06.2009, whereas the complaint itself was lodged by the Drug Inspector only on 13.07.2009; in such a case, the
valuable right of the accused to get retested the drug got frustrated. Accordingly, he prays for quashment.
The learned Government Advocate (Criminal Side) would submit that sanctioning process took some time.
Be that as it may, the law is strict in this regard as highlighted by the Honourable Apex Court in the cited decision supra, I would like to
reproduce hereunder Sub-sections (3) and (4) of Section 25 of the Act:
25.(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 u/s 18(A) 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 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 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.
A cumulative reading of the aforesaid provisions coupled with the decision of the Honourable Apex Court in Medicamen Biotech Ltd. and
Another Vs. Rubina Bose, Drug Inspector, , would unambiguously and unequivocally make the point pellucidly and palpably clear that well before
the expiry of the shelf-life of the drug concerned, the complaint should be filed, then only the accused also could get the drug concerned retested
by the Central Drugs Laboratory concerned. But, in this case, that test was conducted only by the Tamil Nadu Drugs Testing Laboratory and not
by the Central Drugs Laboratory.
Hence, it is quite clear that the valuable right of the accused got defeated and in such a case, there is no other go but to quash the complaint.
In the result, this Criminal Original Petition is allowed and the complaint in C.C. No. 799 of 2009 on the file of the learned Judicial Magistrate,
Pudukkottai, is quashed. Consequently, the connected Miscellaneous Petitions are closed.