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Madhya Pradesh High Court · body

2006 DIGILAW 108 (MP)

Pravinchandra v. State of M. P.

2006-01-18

S.C.VYAS

body2006
ORDER 1. This revision is directed against the judgment and order dated 3.9.2001 passed by I Additional Sessions Judge, Ratlam, in Criminal Appeal No. 235 of 2000, whereby upheld the judgment and order of conviction dated 5.10.2000, passed by Chief Judicial Magistrate, Ratlam, in Criminal Case No. 4317 of 1990. The applicants accused stood convicted under section 18(a)(i) and 27(d) of the Drugs and Cosmetics Act, 1940 (hereinafter for brevity shall be referred to as the 'Act') and sentenced to undergo R1 for one year and to pay a fine of Rs.5,000/-, in default to further undergo SI for one month. 2. The order dated 22.11.2005 shows that applicant No. 1 had reported to have died on 27.8.2005. In this regard the counsel for applicant has already tiled an IA 6907 of 2005. In support of the IA he has also tiled the death certificate issued by Municipal Corporation, Indore. The learned GA has also admitted this fact. Thus, the name of applicant No. 1 be deleted from the cause title. Now the revision remains only challenging the conviction and sentence passed against applicant No.2. 3. The short facts of the case are that applicants were manufacturers of a drug called "Furazolidone Tablets BPC. 68-100 mg." under the name and style of Jay Pharmaceutical Laboratories in their unit situated at 17, Pagnis Paga, Indore. The aforesaid drug is used as an anti-diarrhoeal drug. The said drug was supplied to the Government Hospital, Ratlam and on 7.10.1989 Drug Inspector Mukund Tayade inspected the Government Hospital, Ratlam, and picked up and seized certain tablets from the Store room of the Hospital. A panchnama was drawn by the Drug Inspector regarding seizure of the tablets and after making four separate packets of the 50 tablets each, one packet was sent to the Government Analyst at Bhopal for examination. One parcel was sent to the applicants which was received by them on 3.12.1989. A clarification was sought by the applicants from the Drug Inspector, who in turn on 6.1.1990 sent the required clarification. 4. It is alleged that Government Analyst, Bhopal, on examination found that the sample of the drug Furazolidone tablets of batch No. 3671 was of the sub-standard. On the label of the tablet it was mentioned that it contains 100 mg. Furazolidone, whereas on analysis it was found only 59 mg. 4. It is alleged that Government Analyst, Bhopal, on examination found that the sample of the drug Furazolidone tablets of batch No. 3671 was of the sub-standard. On the label of the tablet it was mentioned that it contains 100 mg. Furazolidone, whereas on analysis it was found only 59 mg. The drug was supplied by the applicants to the Government Hospital, Ratlam, vide bill/challan No. 158 dated 31.8.1989. A copy of the Public Analyst's report along with the second part of the sample was sent to the applicants in compliance of the provision of section 15 of the Act. 5. The applicants denied the contents of the report and challenged it under section 25(3) of the Act. Thereafter complaint was filed against the applicants by the Drug Inspector before the Court of Chief Judicial Magistrate, Ratlam, on 7.5.1990. 6. The applicants appeared before the Court for the first time on 22.2.1993. On that day they moved an application under section 23(4) read with section 25(4) of the Act. The Court directed them to deposit certain fees for getting the sample tested by Central Drugs Laboratory. Since the drugs in question had already crossed its period of expiry in August 1992, therefore, the applicants did not choose to get it tested by Central Drugs Laboratory. Thereafter trial commenced and concluded against the applicants and the trial Court found them guilty, convicted and sentenced as stated hereinabove. 7. Shri S.C. Bagadiya, Senior Advocate appearing for applicant has raised the first contention that it was the valuable right of the applicants to get the another part of the sample examined by Central Drugs Laboratory. At the very first opportunity an objection in this regard was raised by the applicants by sending the letters Ex.P-6, P-7 and P-9 to the Drug Inspector. In letter Ex.P-9 it has been clearly stated that the applicants do not agree with the finding of the test report sent by the Drug Inspector to them and they not only challenged the test report but also claimed their right under section 25(3) of the Act to get the another part of the sample examined by Central Drugs Laboratory. In the letter Ex.P-7 also it was stated that applicants want to challenge the report under the provisions as envisaged in section 25(3) of the Act. 8. In the letter Ex.P-7 also it was stated that applicants want to challenge the report under the provisions as envisaged in section 25(3) of the Act. 8. Shri Bagadiya, Senior Advocate further submitted that in spite of these challenges without getting second part of the sample examined by Central Drugs Laboratory, the complaint was tiled by the Drug Inspector without informing the applicants before the Court in their absence somewhere in the month of May 1990. The applicants for the first time appeared before the Court after service on 22.2.1993. Prior to this date no notice was served upon them. 9. Shri Bagadiya further argued that by the time the applicants appeared before the trial Court, the expiry period of the drug in question had already elapsed and therefore their valuable right of getting the sample examined by Central Drugs Laboratory was deliberately denied by the respondent. The learned counsel has drawn attention of this Court to the provisions of section 25 of the Act, which read as under: "25. Reports of Government Analyst -- (1) The Government Analyst to whom a sample of any drug (or cosmetic) has been submitted for test or analysis under sub-section (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 18-A), 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 conclusive unless the person from whom the sample was taken (or the person whose name, address and other particulars have been disclosed under section 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 be intends to adduce evidence in controversion of the report. (4) Unless the sample has already been tested or analyzed 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 fact stated therein. (5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct." 10. Sub-section (3) of section 25 makes it clear that the report signed by the Government Analyst shall be conclusive evidence of the fact stated therein, unless the person from whom the sample was taken has within 28 days of the receipt of copy of the report, notified in writing to the Inspector or the Court that he intends to adduce evidence in controversion of the report and thereafter the Court before whom the proceedings are pending may in its own motion or in its discretion at the request either of the complainant or the accused cause the sample of the drugs produced before the Magistrate, sent it for test or analysis to the Central Drugs Laboratory and the cost of such analysis shall be paid by the complainant or the accused as per direction of the Court. Therefore, what was required ort the part of the applicants after receiving the report of Government Analyst, was only this, that they should have notified in writing to the Inspector that they intend to adduce the evidence in controversion of the report." Such intention, in the present case was already notified by the applicants through letters Ex.P-6, P-7 and P-9 much prior to the filing of the complaint to the Drug Inspector. 11. Thereafter Drug Inspector filed the complaint before the Court on 7.5.1990 i.e., somewhere about five months after receipt of those letters. 11. Thereafter Drug Inspector filed the complaint before the Court on 7.5.1990 i.e., somewhere about five months after receipt of those letters. During this period of five months no action was taken by the Drug Inspector regarding the communication made by the applicants. 12. The Drug Inspector Mukund Tayade has deposed in para 6 of his examination-in-chief that he had received these letters sent by applicants. Thus, this fact is not in dispute. It is also not in dispute that the expiry date of Tablet Furazolidone of batch No. 6371 was in the month of August 1992. It is also not in dispute that the said Tablets were sold and sent to CMO Ratlam vide bill Ex.P-12. On the basis of this documents it can safely be inferred that the Drug had already expired before the applicants' appearance in the Court and so they could not make a prayer for getting examined IInd part of the sample by Central Drugs Laboratory after the expiry date of the drug. 13. Shri S.C. Bagadiya, Senior Advocate relied upon a judgment reported in the matter of State of Haryana and another v. A Kumar Bansal and others [1995(1) FAC 280], in which it has been held that it is valuable right of the concerned person to get the sample tested from the Central Drugs Laboratory. If for any act or omission of the State the said right is lost prejudice must be taken to have been caused to the accused persons. In the said case the sample of Gentamycin was taken from the premises of Haryana Medical Stores by the State Laboratory. It was found that the sample did not contain Gentamycin base against the declared quantity of 0.6 mg. The respondent accused moved an application for reanalysis but the sample could not be tested because the shelf life had expired and in that respect it has been held that prejudice must have taken place to the accused persons and affirmed the finding of Sessions Judge holding that respondents were deprived of their statutory right and respondents were rightly discharged. 14. He has also relied upon the judgment of Mumbai High Court reported in the matter of M/s. Zim Laboratories Bombay and others v. State of Maharashtra [1993(3) MhLJ 132= 1999 CrLJ 2003]. 14. He has also relied upon the judgment of Mumbai High Court reported in the matter of M/s. Zim Laboratories Bombay and others v. State of Maharashtra [1993(3) MhLJ 132= 1999 CrLJ 2003]. In this matter also the accused company after receipt of said report noticing Drug Inspector within stipulated time about their intention to adduce evidence in its controversion of the report of Government Analyst in view of provisions of sub-section (3) of section 25 of the Act. However, because of failure on the part of Drug Inspector to take prompt appropriate steps in this regard, accused was deprived of his valuable statutory right which has affected the prosecution adversely. In the referred case also in spite of receipt of the intention from the accused company Drug Inspector did not do anything at all and allow the time elapsed, the ultimate result was that in denial of the opportunity of the accused company for getting IInd part of the sample reanalysed from the Central Drugs Laboratory. It was held that the accused company was deprived of exercising their valuable statutory right which goes to the root of the matter and adversely affected the prosecution. 15. Shri Bagadiya, Senior Advocate has also cited another judgment reported in the matter of State of Haryana v. Brij Lal Mittal and others [ AIR 1998 SC 2327 ]. In the above referred case the accused persons failed to notify their intention to reanalyse the sample from Central Drugs Laboratory within the statutory period of 28 days, therefore the apex Court in para 7 has held as under: "7. In the above referred case the accused persons failed to notify their intention to reanalyse the sample from Central Drugs Laboratory within the statutory period of 28 days, therefore the apex Court in para 7 has held as under: "7. At the risk of repetition, we wish to emphasis that the right to get the sample examined by the Central Drugs Laboratory through the Court before which the prosecution is launched arises only after the person concerned notifies in writing the Inspector or the Court concerned (here the latter clause did not apply for the prosecution was yet to be initiated) within twenty eight days from the receipt of the copy of the report of the Government Analyst that he intends to adduce evidence in controversion of the report." It must, therefore, be said that consequent upon their failure to notify the Inspector that they intended to adduce evidence in controversion of the report within 28 days, not only the right of the manufacturers to get the sample tested by the Central Drugs Laboratory through the Court concerned stood extinguished but the report of the Government Analyst also became conclusive evidence under sub-section (3). The delay in tiling the complaint till the expiry of the shelf life of the drugs could not, therefore, have been made a ground by the High Court to quash the prosecution. It will not be out of place to mention that the manufacturers' right under sub-section (3) expired four months before the expiry of the shelf life of the drugs. In view of the above discussion, the reasoning of the High Court for quashing the prosecution against the three respondents cannot at all be sustained." 16. As per the observations made by the apex Court in the above referred case, the accused under the provisions of Drugs and Cosmetics Act are required to exercise their statutory right to get the sample reanalysed by the Central Drug Laboratory by notifying in writing to the Inspector or the Court concerned the intention within 28 days from the receipt of the copy of report. 17. However, the Court under sub-clause (4) of section 25 of the Act on its own motion may get another part of the sample examined by Central Drug Laboratory. 17. However, the Court under sub-clause (4) of section 25 of the Act on its own motion may get another part of the sample examined by Central Drug Laboratory. In addition to it the Court may also in its discretion at the request of either of the party get another part of the sample examined by Central Drug Laboratory. So far as duty of accused persons is concerned, according to the section (3) of section 25 they are required to notify within 28 days in writing to the Inspector or the Court where proceeding is pending that he/they intend to adduce evidence in controversion of the report. 18. Thus, the view taken by Punjab and Haryana High Court in A. Kwnar Bansal's case (supra) and the Mumbai High Court in Zim Laboratory's case (supra) are fully applicable to the case in hand so far the legal position regarding section 25 of the Act is concerned. In the present case also the applicants have notified to the Drug Inspector in writing well within time their intention to adduce evidence in controversion to the report of the Government Analyst. Even after receipt of such letters indicating intention of the applicants, the Drug Inspector filed the complaint before the Court after lapse of five months and the applicants could be served after around three years. By that time the shelf life of drugs (tablet) had already expired and, therefore, it was not in a position to be reanalysed by the Central Drugs laboratory. 19. The learned trial Court wrongly held in para 13 of its judgment that no such intention within 28 days was notified by the applicants to the Drug Inspector. In revision the learned Additional Sessions Judge has also drawn wrong conclusion on this aspect of the matter. 20. After examining the documentary as well as the oral evidence adduced before the trial Court and in view of non-compliance of section 25(3) and (4) of the Act by the Drug Inspector, this Court comes to the conclusion that the applicants were deprived of their valuable right of getting another part of the sample reanalysed by the Central Drugs Laboratory. It caused grave prejudice to the valuable right of the accused applicants and therefore, the conviction and sentence recorded by the two Courts below cannot be sustained in law. 21. In the result the revision succeeds and is allowed. It caused grave prejudice to the valuable right of the accused applicants and therefore, the conviction and sentence recorded by the two Courts below cannot be sustained in law. 21. In the result the revision succeeds and is allowed. The impugned judgment and order of conviction and sentence of the Courts below are hereby set-aside and the applicant is acquitted of the charge levelled against him. His bail bonds shall stand discharged. Fine amount, if deposited, shall be refunded to the applicant.