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2007 DIGILAW 638 (RAJ)

Unicure (India) Pvt. Ltd. v. State of Rajasthan

2007-03-26

R.S.CHAUHAN

body2007
JUDGMENT 1. - The petitioners are challenging the order dated 7.9.2000 passed by Additional Chief Judicial Magistrate No. 2, Udaipur and the order dated 10.5.2002 passed by the Additional Sessions Judge No. 3, Udaipur. By the former order, the learned Magistrate has dismissed the application filed by the petitioners under Section 204 read with Section 190 of the Criminal Procedure Code (henceforth to be referred to as 'the Code', for short) for setting aside the cognizance taken by the learned Magistrate against the petitioners for offence under Section 18A(1) read with Sections 16-A and 17C and Sections 27A, 27D and 28 of the Drugs and Cosmetics Act, 1940 (henceforth to be referred to as the Act, for short). By the latter order, the learned Judge has dismissed the revision petition filed by the petitioners against the order dated 7.9.2000. 2. The brief facts of the case are that on 7.12.1988 one Ashok Bhandari, Drug Inspector at Udaipur took samples of a particular tablet known as Oxyphenbutazone-IP" batch No. T-975 from the shop of M/s. Salgiya Medical Store, Sulambar. According to the cover of the tablet, the petitioners allegedly manufactured the said tablet. Also according to the cover, the date of the manufacturing of the said tablet was May 1987 and the date of expiry was May 1989. Therefore, the shelf life of the said drug was only for two years, i.e. till May 1989. After seizing the said tablet, the Drug Inspector sent a sample of the drug for analysis to the Government Analyst of the Rajasthan Government, Jaipur. According to the said Analyst, "the sample does not confer to the claim with respect to assay". A copy of this report was sent to M/s. Salgiya Medical Store on 3.6.1989. M/s. Salgiya Medical Store filed its reply on 25.7.1989 wherein they claimed that they had purchased the said tablet on 3.8.1987 from one M/s. Laxmi Chand and Sons at Udaipur. Consequently, on 29.7.1989, the Inspector sent a notice to M/s. Laxmi Chand and Sons with regard to the inferior quality of the drug. Since he did not hear anything from M/s. Laxmi Chand and Sons for almost five and a half years, he sent a reminder dated 29.1.1995. On 1.2.1995, M/s. Laxmi Chand and Sons informed the Inspector that they had bought the said tablet in Batch No. T-979 from M/s. Mangla Pharma at Jaipur. Since he did not hear anything from M/s. Laxmi Chand and Sons for almost five and a half years, he sent a reminder dated 29.1.1995. On 1.2.1995, M/s. Laxmi Chand and Sons informed the Inspector that they had bought the said tablet in Batch No. T-979 from M/s. Mangla Pharma at Jaipur. Since the petitioners were the alleged manufacturers, on 2.3.1995 the Inspector sent a letter to the petitioners inquiring about the poor quality of the said drug. Vide letter dated 31.3.1995, the petitioner immediately informed the Drug Inspector that they are not the manufacturers of the said drug and a wrong address has been shown on the cover of the drug. On receiving the said reply, the Deputy Controller of Drugs Rajasthan wrote a letter to the Drug Inspector at Gaziabad to make an inquiry whether the said drug had been manufactured by the petitioner or not. The Drug Inspector submitted its report wherein he clearly stated that the petitioners did not manufacture the said drug. Despite the said letter, the Deputy Drug Controller wrote to the Drug Inspector, Udaipur in January, 1996 to launch the prosecution against the present petitioner and against M/s. Sangiya Medical Store, M/s. Laxmi Chand and Sons and their respective partners. Thus, on 10.4.1996, i.e. almost seven and a half years after the seizure of the said drug, the Drug Inspector,submitted the complaint against the petitioner and others. Vide order dated 6.5.1996, the Chief Judicial Magistrate took cognizance against the petitioner and others for aforementioned offences. Since the petitioners were aggrieved by the cognizance order, they filed an application under Section 204 read with 190 of the Code before the Additional Chief Judicial Magistrate No. 2 to whom the case was transferred. After hearing all the parties, the learned Magistrate dismissed the said application vide order dated 7.9.2000. Aggrieved from the said order, the petitioners filed a revision petition before the Additional District Judge No. 3, Udaipur. However, vide order dated 10.5.2002, the learned Judge dismissed the revision petition. Hence, this petition before this Court. 3. Mr. Niranjan Singh, the learned counsel for the petitioner, has raised a single contention before this Court that according to the leaf cover of the drug, the shelf life of the drug was for a period of two years from May, 1987 till May, 1989. Hence, this petition before this Court. 3. Mr. Niranjan Singh, the learned counsel for the petitioner, has raised a single contention before this Court that according to the leaf cover of the drug, the shelf life of the drug was for a period of two years from May, 1987 till May, 1989. However, the first notice sent by the Drug Inspector to the petitioner was on 2.3.1995, i.e. seven years after the seizure of the drug on 7.12.1988. Moreover, while sending the said notice to the petitioners, a copy of the report of the Government Analyst, dated 31.5.1989, was not sent to them. Furthermore, a sample of the drug was also not sent to them. Therefore, the requirements of Section 25 of the Drugs and Cosmetics Act, 1940 have not been fulfilled. For, the petitioners have not been given sufficient chance to challenge the report of the Government Analyst and to request the Court to send a sample of the drug to an independent laboratory. According to the learned counsel, in catena of cases, the Hon'ble Supreme Court and this Court have held that in case the mandatory requirement of Section 25 has not been followed and the accused has not been given a chance to challenge the report and to send the sample for further analysis, then the entire trial stands vitiated. Tlaus, according to the learned counsel, continuation of trial would tantamount to an abuse of the process of the Court. 4. On the other hand, Mr. Boob, the learned Public Prosecutor, has contended that the petitioners have not raised this contention either before the learned Magistrate or before the learned Judge. Therefore, they cannot raise the said contention before this Court. 5. In rejoinder, Mr. Niranjan Singh has claimed that an argument with regard to non-implementation of mandatory provision of law can be raised at any stage. Therefore, he is justified in raising the said contention before this Court. 6. We have heard both the learned counsels and perused the impugned orders passed by the Courts below. 7. The Drugs and Cosmetics Act, 1940 and the Insecticide Act, 1968 contain similar provisions with regard to the power of the Inspectors, procedure and Inspectors, reports of Government Analyst, etc. Thus, both the Acts are pari materia to each other. Hence, the interpretation of provisions of the Insecticide Act can be read for the benefit of interpreting the Act. 7. The Drugs and Cosmetics Act, 1940 and the Insecticide Act, 1968 contain similar provisions with regard to the power of the Inspectors, procedure and Inspectors, reports of Government Analyst, etc. Thus, both the Acts are pari materia to each other. Hence, the interpretation of provisions of the Insecticide Act can be read for the benefit of interpreting the Act. 8. Section 25 of the Act is as under : "25. Reports of Government Analysts.-(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 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 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 analyzed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in a 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 of 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 sub-section (4) shall be paid by the complainant or accused as the Court shall direct." 9. The said provision is similar in its scope and ambit to, Section 24 of the Insecticide Act, 1968. The said provision is a protective provision in favour of the accused. It imposes a duty on the Inspector to deliver a copy of the analyst's report to the manufacturer whose name and address has been disclosed under Section 18-A of the Act. It further provides an opportunity to the manufacturer to inform the Inspector of its intention "to adduce evidence in contraversion of the report". It also provides the manufacturer with the right to request the Court to send the sample of the drug to an independent Laboratory for its analysis and report. Thus, the provision grants a valuable right to the accused person for defending himself. Since the said right can be exercised effectively only during the shelf life of the drug, it is imperative that the Inspector should complete the entire procedure from sending the drug to the Government Analyst to the filing of the complaint before the competent Court during the shelf life of the drug. In case he fails to do so, he deprives the manufacturer of his right to protect itself granted to it by Section 25 of the Act. 10. In the case of State of Punjab v. National Chemical Organic Industries Ltd., (1996) 11 SCC 613 , while dealing with a case under the Insecticide Act, the Hon'ble Supreme Court has held, "But a complaint should be lodged with utmost dispatch so that the accused may opt to avail of the statutory defence. The appellant is not given the third sample of the sample. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him. Under these circumstances, we think that further proceedings in the Court of Chief Judicial Magistrate would be rendered fruitless." 11. Again while dealing with the provisions of the Insecticide Act, in the case of M/s. Tikayat Kisan Vikas Kendra and Ors. Resultantly, the respondent has been deprived of a valuable defence statutorily available to him. Under these circumstances, we think that further proceedings in the Court of Chief Judicial Magistrate would be rendered fruitless." 11. Again while dealing with the provisions of the Insecticide Act, in the case of M/s. Tikayat Kisan Vikas Kendra and Ors. v. State of Rajasthan and Ors., S.B. Criminal Miscellaneous Petition No. 100/2001, decided on 16.9.2005 ; this Court while analyzing the provisions of the Insecticide Act has held as under : The Act is exhaustive in its scope and ambit. It creates equilibrium between the interest of the society to protect itself from the hazards of insecticide and the interest of the individual to protest himself from frivolous prosecution. The first principle of criminal jurisprudence is that everyone is presumed to be innocent till proven guilty. Therefore, it is the duty of the State to prove the guilty of the accused beyond a reasonable doubt. Since the Act deals with insecticide (chemicals), which is subject to constant change without any fault on the part of the offender, therefore, the Act provides certain defences mechanism for protection of the accused. The provisions of the Act impose a duty on the Insecticide Inspector to forthwith send a sample of the insecticide to the Insecticide Analyst for test and analysis. It further imposes a duty on the analyst to deliver the report within a period of thirty days to the Insecticide Inspector. It further imposes a duty on the Inspector to send a copy of the report to the accused persons. The accused person is permitted to inform the Inspector that he intends to adduce evidence in contraversion of the report. The provisions further provides that the Court may cause the sample of the insecticide to be sent for test or analysis to the Central Insecticide Laboratory, if so desired by the accused person. 12. Since, the insecticides are nothing but chemicals which have a limited life, therefore, it is imperative that the procedure adopted by the Insecticide Inspector should be completed prior to the expiry of the shelf life of the insecticide. In case the shelf life of the insecticide is over, then the accused person is deprived of the right to effectively defend himself in the trial. A right to defend oneself is not an illusory right, but a substantive one. In case the shelf life of the insecticide is over, then the accused person is deprived of the right to effectively defend himself in the trial. A right to defend oneself is not an illusory right, but a substantive one. Such a right cannot be defeated by the Inspectors through their sheer lethargy. After all, if there is a right to defend oneself, there is a corresponding duty imposed on the Inspectors lo act diligently. 13. It is also essential to keep in mind that according to Article 21 of the Constitution of India, "life" and "personal liberty" can be deprived only by the procedure established by law. Undoubtedly, the procedure to collect evidence and to initiate the criminal proceedings is prescribed by the Act. In case the procedure is not followed efficiently both in letter and spirit, then the accused will be deprived of his personal liberty in violation of the procedures established by law. Thus, a prosecution, which violates the procedure established by the Act, would ipso facto violate the fundamental rights of the accused under Article 21 of the Constitution of India. Therefore, such a prosecution cannot be permitted to continue. For, such a prosecution would be both an abuse of the process of the Court and would be a violation of the fundamental rights of the accused. 14. Similar views have also been expressed by this Court in the case of B.L. Industries (M/s.) v. State of Rajasthan, 2002 (1) R Cr D 292 . 15. In the present case, the report of the Government Analyst was never sent to the petitioners. Therefore, the right to challenge the same has been denied to them. Moreover, in the absence of the report, they could not request the Court to send the sample to an independent laboratory for its analysis and report. Lastly, since the complaint was filed after seven and a half years, i.e. after the expiry of the shelf life of the drug, the petitioners were certainly deprived of their right to have the said drug tested by an independent laboratory. Therefore, their right to defend themselves - a right emanating from Article 21 of the Constitution of India - has been violated. Since the petitioners have been deprived of the right to defend themselves, the entire trial would tenet amount to abuse of the process of the Court. Therefore, their right to defend themselves - a right emanating from Article 21 of the Constitution of India - has been violated. Since the petitioners have been deprived of the right to defend themselves, the entire trial would tenet amount to abuse of the process of the Court. Therefore, this Court has no option, but to quash and set aside the orders dated 7.9.2000 passed by the learned Magistrate qua the petitioner and 10.5.2002 passed by the learned Judge. The record of the case shall be sent back to the learned trial Court immediately.Petition allowed. *******