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2001 DIGILAW 1127 (PNJ)

Anurag Arora v. State Of Haryana

2001-10-12

K.C.GUPTA

body2001
Judgment K.C.Gupta, J. 1. This is a petition under Section 482 Cr.P.C. filed by the petitioners for quashing complaint No. 263/2 of 1995 pending in the Court of Chief Judicial Magistrate, Panipat, as well as summoning order dated 22.7.1995 annexed as Annexures P-5 and P-6 and order dated 6.10.1998, Annexure P-14. 2. Briefly stated, the facts are that on 18.12.1991, Sh. Raj Kumar, Drugs Inspector visited M/s. Sachdeva Medicos, Railway Road, Samalkha, for the purpose of inspecting and sampling. During inspection, the Drugs Inspector purchased Sulphan Ss tablets Batch No. T-1209 manufactured by M/s. G.S. Pharmaceutial, Muzaffarnagar, petitioner No. 2, for sample and analysis, which medicine was found stocked for sale. The sample so purchased was divided into four equal portions and each portion was separately sealed and packed. 3. Intimation of collecting the sample was given to M/s. Sachdeva Medicos Samalkha on Form 17, prescribed under the said rules, by handing over one sealed portion of sample and copy of Form 17. One sealed portion of the above portion was sent to the Government Analyst, Haryana, Chandigarh, alongwith memo of form 18 by registered post parcel. One copy of the form 13 bearing specimen impression of seal was sent by registered post to Government Analyst, Haryana, Chandigarh. Upon receipt of the report of Government Analyst, Haryana, Chandigarh, dated 22.1.1992, the sample was found to be sub-standard. 4. M/s. Sachdeva Medicos, Samalkha, intimated the office of Drugs Inspector that it had purchased the above mentioned drugs from M/s. Kamaldeep Pharma, Delhi, vide bill No. 15823 dated 18.12.1991. M/s. Kamaldeep Pharma, Delhi, in turn intimated that it had purchased the drugs vide bill No. 143 dated 10.6.1991 from M/s. G.S. Pharmaceuticals, Muzaffarnagar, U.P. 5. M/s. G.S. Pharmaceuticals, Muzaffarnagar, U.P., on being served statutory notice, challenged the test report of the Government Analyst, Haryana, Chandigarh, under Section 25(3) of the Drug and Cosmetics Act, 1940 (hereinafter referred to as `the Act) and requested to send the sample portion to Central Drugs Laboratory, Calcutta (for short, "C.D.L., Calcutta") for further testing. It was also alleged that Anurag Arora, being partner of M/s. G.S. Pharmaceuticals, Muzaffarnagar, U.P., was responsible for conduct of business of M/s. G.S. Pharmaceuticals. With these allegations, complaint was filed for an offence punishable under Section 27(a) and (d) of the Act. Vide order dated 22.7.1995, Annexure P-8, the petitioners were summoned under Section 27(a) and (d) of the Act. With these allegations, complaint was filed for an offence punishable under Section 27(a) and (d) of the Act. Vide order dated 22.7.1995, Annexure P-8, the petitioners were summoned under Section 27(a) and (d) of the Act. The petitioners moved an application, Annexure P-13, for dropping the proceedings and discharging them, which was dismissed by the Chief Judicial Magistrate, Panipat, vide his order dated 6.10.1998, Annexure P-14. Now the same has been challenged under Section 482 Cr.P.C. 6. I have heard Sh. Suman Jain, counsel for the petitioners, Sh. Sidharth Swarup, AAG, Haryana and carefully gone through the file. 7. Shri P.S. Rathee, District Drugs Inspector, Panipat, had filed reply in this petition dated 22.2.1999. It was stated in para 9(i) of the reply that the drug was manufactured in April, 1991 and date of expiry was April, 1993. The test report No. 681 dated 23.1.1992 was received on the same day by the Drugs Inspector and on 7.2.1992 show cause notice was issued to the first party M/s. Sachdeva Medicos, Samalakha, who disclosed under Section 18A that they purchased the drugs from M/s. Kamaldeep Pharma, Delhi on 18.12.1991 with purchase bill (Invoice). Thereafter, notice was given to second party M/s. Kamaldeep Pharma, Delhi on 29.4.1992 and this party disclosed that they had purchased the drugs from M/s. G.S. Pharmaceuticals, Muzaffarnagar, U.P., on 10.6.1991. Consequently, notice was issued to M/s. G.S. Pharmaceuticals, Muzaffarnagar, U.P., on 5.6.1992 with enclosed 1/3rd sealed sample portion of drugs RKP-91-92 alongwith original test report and photo copy of the bills. It is admitted by the Drugs Inspector in para 6 of the complaint dated 22.7.1995 that M/s. G.S. Pharmaceuticals, Muzaffarnagar, U.P., on being served statutory notice, had challenged the test report of the Government Analyst, Haryana, Chandigarh, under Section 25(3) of the Act and had requested to send the sample portion to C.D.L., Calcutta for further testings. It is further alleged by the petitioners in Paras No. 5 that they had sent another letter to the Drugs Inspector (complainant) on 2.7.1992 by registered post, copy of the same is Annexure P-6, but the sample portion was not sent to C.D.L., Calcutta. It is also an admitted fact that the complaint was filed in the court on 22.7.1995 bearing No. 263/2 of 1995 for prosecution and the summons were issued to the petitioners for 6.9.1995. It is also an admitted fact that the complaint was filed in the court on 22.7.1995 bearing No. 263/2 of 1995 for prosecution and the summons were issued to the petitioners for 6.9.1995. According to Section 25(3) of the Act, it was incumbent upon the Drugs Inspector to get the sample analysed from the C.D.L., Calcutta, as the petitioners had notified in writing to the Inspector to send the sample for analysis to the C.D.L., Calcutta within 28 days of the receipt of copy of the report but the same was not done. The manufacturing date of drugs was April, 1991 and the date of expiry was April, 1993. However, the complaint was filed on 22.7.1995 and the petitioners were summoned for 6.9.1995. Thus, the shelf life of the drugs had already expired when the complaint was filed. Thus, it appears that there was no ground for the complainant to file the complaint against the petitioners by denying them a valuable right to get the second sample tested from the C.D.L., Calcutta. It has been observed in Diwan Chand v. State of Punjab, 1998(3) RCR(Criminal) 639 by this Court that where sample of drug has been found to be below standard by Government Analyst and a notice to this effect has been given to the accused and accused had applied for re-analysis of sample by Central Drugs Laboratory which was not done, thereafter, if the complaint is filed in the Court after delay i.e. the accused is summoned when shelf life of the drug had already expired, then the complaint was not maintainable as the accused had lost his valuable right of re-analysis of the sample. Consequently, the complaint was quashed. Similar view was taken in Arvind Dhawan v. State of Haryana, 1998(3) RCR(Criminal) 593. Therefore, in such circumstances, I hold that the complaint is not maintainable and the order of summoning of the Chief Judicial Magistrate dated 22.7.1995, Annexure P-8 and order dated 6.10.1998, Annexure P-14, whereby the Chief Judicial Magistrate had refused to drop the proceeding are illegal. Consequently, in exercise of powers under Section 482 Cr.P.C., the petition is allowed and the complaint as well as the above said orders are quashed.