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Gauhati High Court · body

2007 DIGILAW 761 (GAU)

Biodeal Laboratories Pvt. Ltd. v. State of Assam

2007-11-23

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. By making this application under Section 482 Code of Criminal Procedure, the Petitioner, who was arrayed as an accused in C.R. Case No. 208/2002, challenges the order, dated 07.04.2007, passed by the learned Additional Chief Judicial Magistrate, Sonitpur, framing charge against the accused-Petitioner under Section 27 of the Drugs and Cosmetics Act, 1940 (in short the said Act'). 2. The case of the prosecution may, in brief, be described thus: On 04.06.2001, the complainant, who is an Inspector of Drugs, visited the business establishment of M/S. Pharm Assam, at Chawk Bazar, Tezpur, and took sample of Nivaquine-P, 60 ml., lot 351, and sent the same for analysis to the Government Analyst. The test report, dated 01.12.2001, was received by the complainant, on 06.12.2001, with the Government Analyst's opinion that the product was not of standard quality as defined in the said Act and the Rules framed thereunder. After obtaining requisite sanction for prosecution of the present Petitioner as manufacturer of the said drug, a complaint was lodged by the Inspector of Drugs and prosecution was accordingly initiated. 3. In support of their case, prosecution examined as many as three witnesses including the complainant and on the basis of the evidence so adduced, a charge, under Section 27 of the said Act, was, as indicated hereinabove, framed against the present Petitioner as an accused. 4. I have heard Mr, J.M. Choudhury, learned Senior counsel, appearing on behalf of the accused-Petitioner, and Mr. K. Munir, learned Addl. Public Prosecutor, Assam. 5. While considering the present revision, what needs to be pointed out, at the very outset, is that it is not in dispute that under Section 17(A)(f) of the said Act, a drug shall be deemed to be adulterated if any substance has been mixed with the drug so as to reduce its quality or strength. Hence, when the test report, in the present case, indicates that the drug, in question, on being analyzed, was found to be of sub-standard quality, it really means that the drug had substances, which had reduced the quality or strength of the drug. Consequently, such a drug would be regarded as an adulterated drug within the meaning of Section 17(A)(f) of the said Act. 6. Consequently, such a drug would be regarded as an adulterated drug within the meaning of Section 17(A)(f) of the said Act. 6. What is, now, of immense importance to note is that the drug, in question, was not seized or the sample thereof was not taken or drawn, while the drug was in the possession of the present Petitioner as manufacturer thereof; rather, the drug was seized from the premises of M/S. Pharm Assam. The question, therefore, is as to how the prosecution under Section 27 has been launched against the Petitioner as accused, when the drug was, admittedly, not seized from the possession of the present Petitioner. This question brings me to Section 18A, which reads as under: 18A. Disclosure of the name of the manufacturer, etc. Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic. 7. A close reading of the provisions of Section 18A clearly shows that it is obligatory for every person, who is not the manufacturer of a drug and cosmetic, that he shall, if so required, disclose to the Drug Inspector the name, address and other particulars of the person from whom he has secured the drug and cosmetic. From the provisions of Section 18A read with Section 27 of the said Act, which is the penal Section, what clearly transpires is that even when a sample is drawn from a drug, which has not been found in the possession of the manufacturer, the manufacturer may nevertheless be prosecuted under Section 27 if the person, from whom the sample of the drug was taken, discloses the name of the manufacturer. In the present case, the categorical admission of the Drug Inspector (PW1) is that when the sample was taken from M/S Pharm Assam, the name of the present Petitioner, as manufacturer, was disclosed by M/S Pharm Assam. The Petitioner is, admittedly, the manufacturer and the Petitioner is being, thus, prosecuted on the Petitioner's name having been disclosed, as manufacturer, by M/S Pharm Assam from whom the sample of the drug, in question, was taken. 8. The Petitioner is, admittedly, the manufacturer and the Petitioner is being, thus, prosecuted on the Petitioner's name having been disclosed, as manufacturer, by M/S Pharm Assam from whom the sample of the drug, in question, was taken. 8. What, in short, emerges from the above discussion is that Section 18A makes every person, not being the manufacturer or distributor of a drug, liable to disclose to the Inspector of Drugs the name, address and all the particulars of the person from whom the drug was acquired. In the present case, the Drug Inspector (PW1) has clearly deposed that while he was taking sample from M/S Pharm Assam, they disclosed the name of M/S Biodeal Laboratory as the supplier of the said drug. It is in these circumstances that the criminal prosecution has been launched against the present Petitioner as accused. Hence, the institution of the criminal prosecution against the present Petitioner cannot be said to be wholly unfounded or contrary to law. 9. In the backdrop of the facts noted above, let me, now, turn to Section 23, which prescribes the procedure for collecting sample of drug and disposal thereof. Section 23 reads as follows: 23. Procedure of Inspectors (1) Where an Inspector takes any sample of a drug (or cosmetic) under this Chapter, he shall tender the fair price thereof and may require a written acknowledgement therefor. Section 23 reads as follows: 23. Procedure of Inspectors (1) Where an Inspector takes any sample of a drug (or cosmetic) under this Chapter, he shall tender the fair price thereof and may require a written acknowledgement therefor. (2) * * * (3) Where an Inspector takes a sample of a drug (or cosmetic) for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked: Provided that where the sample is taken from the premises whereupon the drug (for cosmetic) is being manufactured, it shall be necessary to divide the sample into three portions only: Provided further that where the drug (or cosmetic) is made up in containers of small volume, instead of diving a same as aforesaid, the Inspector may, and if the drug (or cosmetic) be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same and where necessary, sealing them. (4) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows: (i) one portion or container he shall forthwith sent to the Government Analyst for test or analysis; (ii) the second he shall produce to the Court before which proceedings, if any, are instituted in respect of the drug (or cosmetic) and (iii) the third, where taken, he shall sent to the person, if any, whose name, address and other particulars have been disclosed under Section 18A. 5. * * * 6. * * * 10. A combined reading of Sub-sections (3) and (4) of Section 23 clearly shows that the Inspector shall divide the sample into three parts if the name of the manufacturer or distributor is not disclosed under Section 18A; but such sample shall be divided into four parts if the name of the manufacturer is disclosed. * * * 10. A combined reading of Sub-sections (3) and (4) of Section 23 clearly shows that the Inspector shall divide the sample into three parts if the name of the manufacturer or distributor is not disclosed under Section 18A; but such sample shall be divided into four parts if the name of the manufacturer is disclosed. Sub-section (4) of Section 23 makes it abundantly clear that the Inspector shall restore one potion of the sample to the person from whom he takes the sample and shall retain the remaining three portions of the sample and out of such remaining three portions of the sample, he shall forthwith send one portion of the sample to the Government Analyst for analysis, the second portion, shall be produced by him in the Court, where the proceedings are instituted, and the third portion of the sample shall be sent to the person, whose name and address have been disclosed, under Section 18A, as manufacturer or distributor of the drug. Why is it that Section 23 requires the Inspector to restore one portion of the sample to the person from whom he takes the sample and why is it that Section 23 also obliges the Inspector to send one portion of the sample to the person, whose name and address have been disclosed, under Section 18A, as manufacturer or distributor of the drug? 11. The answers to the questions, posed above, are found contained in Section 25. This Section reads, 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 18A, and shall retain the third copy for use in any prosecution in respect of the sample. (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 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 a evidence shall be conclusive unless the person from whom the same 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 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 Selection 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 Sub-section (4) shall be paid by the complainant or accused as the Court shall direct. 12. A close analysis of the provisions of Section 25(1) shows that the Government Analyst to whom a sample of a drug is submitted for test or analysis shall deliver to the Inspector concerned a signed report in triplicate in prescribed form. As per Rule 46 of the Drug and Cosmetic Rules, 1945 (in short, 'the said Rules'), the prescribed form is the Form No. 13. 13. As per Rule 46 of the Drug and Cosmetic Rules, 1945 (in short, 'the said Rules'), the prescribed form is the Form No. 13. 13. Section 25(2) casts further obligation on the Inspector to 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 the prosecution. 14. Section 25(3) states that any document, purporting to be a report signed by a Government Analyst, shall be conclusive unless the person from whom the sample is taken or the person, whose name, address and other particulars have been disclosed under Section 18A, within 28 days of receipt of a copy of the report, notify, in writing, the Inspector or the Court before which any proceeding in respect of the sample is pending that he intends to adduce evidence in controversion of the Government Analyst's report. 15. Thus, Section 25(3) vests a right in the person from whom the sample is taken or whose name has been disclosed under Section 18A to notify, within 28 days of the receipt of the copy of the report, to the Court of his intention to adduce his evidence in controversion of the Government Analyst's report. Section 25(4) makes it further clear that the Court may, either on its own motion or at the request of the complainant or the accused, cause the sample of the drug, produced before the Court, to be sent, for test or analysis, to the Central Drugs Laboratory. Section 25(4) further shows that upon test or analysis, whatever report is given by the Central Drugs Laboratory shall be conclusive evidence of the facts stated therein. These provisions, in turn, make it abundantly clear that if there is a conflict between the reports of the Government Analyst and the Central Drugs Laboratory, the Central Drugs Laboratory's report will supersede the report of the Government Analyst and the facts, stated in the report of the Central Drugs Laboratory, shall be treated as conclusive evidence of the facts stated therein. 16. 16. When Sub-sections (3) and (4) of Section 23 are read in the light of the provisions of Section 25, what becomes manifestly clear is that when the Drug Inspector takes sample of a drug for the purpose of test or analysis, he shall divide the sample into four portions. The first proviso of Sub-section (3) of Section 23 shows that it shall not be necessary for the Inspector to divide the sample into four portions; rather, the Inspector shall divide the sample into three portions only if the sample is taken from the premises, where the drug is manufactured. This first proviso shows that if the sample is taken from the manufacturer, then, there is no question of giving a sample to the retailer or the distributor of the drug; whereas the sample, if drawn from a drug, which is in the possession of a vendor, then, the person from whom the sample is taken is entitled to receive one portion of the sample, so drawn, so that he may send the sample to the CDL for test or analysis. If the provisions, so contained in Sub-section (3) of Section 23, are read in the light of Section 18A, what logically follows is that except where the sample is taken from the premises, where the drug is manufactured, in all other cases, the Inspector shall divide the sample into four partitions. 17. The above scheme of division of the sample into four parts shows that while one partition of the sample shall be restored to the person from whom the sample was taken, another portion of the sample shall be sent to the person, whose name, address and other particulars have been disclosed under Section 18A and out of the remaining two portions, one portion of the sample shall be sent to the Government Analyst for test or analysis and one portion shall be produced before the Court, where the proceedings are instituted. The principle behind sending of a portion of a sample to the person, whose name, address and other particulars have been disclosed under Section 18A, is that the person, whose name has been so disclosed under Section 18A, be able to send the sample to the Central Drugs Laboratory (in short, 'the CDL') for test or analysis. The principle behind sending of a portion of a sample to the person, whose name, address and other particulars have been disclosed under Section 18A, is that the person, whose name has been so disclosed under Section 18A, be able to send the sample to the Central Drugs Laboratory (in short, 'the CDL') for test or analysis. The obligation cast on the Inspector to send one partition of the sample to the person, whose name, address and other particulars have been disclosed under Section 18A, aims at enabling the person, whose name, address and other particulars have been so disclosed under Section 18A, to get the sample, sent to him, analyzed by the CDL. In effect, thus, when the sample of a drug is taken from the possession of a person, who is not a manufacturer or distributor of the drug, then, the manufacturer or distributor, whose name, etc., becomes known, must be given one partition of the sample, so drawn, so as to enable him to send such a portion of the sample to the CDL for test or analysis. Similarly, when the sample is drawn from the premises, where the drug is manufactured, the manufacturer must be given a portion of the samples so as to enable him to get the sample analyzed by the CDL. 18. What emerges from the above discussion is that the person from whom the sample of a drug is taken, be he the seller, retailer, distributor or manufacturer, or the person, whose name, address and other particulars have been disclosed under Section 18A, has a right to receive a portion of the sample of the drug drawn by the Inspector and is also entitled to receive a copy of the Government Analyst's report. If the report is adverse to the interest of any such person or of the complainant, all of them have a right to request the Court to send the sample for test or analysis to the CDL and the report given by the Central Drugs Laboratory would be conclusive evidence of the facts stated therein. The right, so given to the person from whom the sample is taken or whose name, address and other particulars have been disclosed under Section 18A, is, undoubtedly, an extremely valuable right. 19. The right, so given to the person from whom the sample is taken or whose name, address and other particulars have been disclosed under Section 18A, is, undoubtedly, an extremely valuable right. 19. The question, now, is as to what will be the consequence of the failure to give one of the samples to the person from whom the sample was drawn or to the person, whose name has been disclosed under Section 18A. Whether the infraction of the right to receive one of the samples or a copy of the report of the Drug Analyst would ipso facto vitiate the trial? The answer to this question is not very far to seek, for, in the case of State of Punjab v. National Organic Chemical Industries Limited, reported in (1996) 11 SCC 613 , which arose out of similar provisions contained in the Insecticides Act, 1968, the Apex Court explained the provisions contained in Section24 of the said Act as under: 5. A reading thereof would indicate that the Insecticide Inspector is empowered to take samples of insecticides for the purpose of test or analysis, as contemplated and in the manner laid down in the Act and the rules. He shall divide the sample in to three portions and effectively seal and suitably mark the same and permit such a person to add his own seal and mark to all or any of the portions so sealed and marked...Under Sub-section (6), the Insecticide Inspector thereafter shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it and he shall retain the remainder and dispose of the same as envisaged in Clauses (i) and (ii). After the receipt of the report, Sub-section (3) of Section 24 declares that: Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty-eight days of the receipt of a copy of the report notified in writing the Insecticide 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) of Section 24 envisages that: 'Unless the sample has already been tested or analyzed in the Central Insecticides Laboratory, where a person has under Sub-section (3) notified his intention of adducing evidence in controversion of the Insecticide Analyst's report, the court may, of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the magistrate under Sub-section (6) of Section 22 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 Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts therein.' Under Sub-section (6), the cost of the test or analysis made by the Central Insecticide Laboratory, under Sub-section (4) shall be paid by the complainant or the accused, as the court shall direct. Thus, it would be clear that after the inspection and seizure of the insecticide, the Insecticide Inspector shall divide the insecticide into three portions, as contemplated and in the manner prescribed and deliver one such sample to the manufacturer or person from whom the insecticide was taken. One should be sent to the Insecticide Analyst. After the receipt of the report, the accused would be notified of the result of the report. Thereafter, the complaint is required to be lodged in the court. At that stage, two options are open to the accused. The accused is entitled to have one copy of the sample entrusted to him to have it notified to the court for proving to be contrary to the conclusive evidence of the report of the analyst; after such a notification having been given to the court, he is entitled to have it tested by Central Insecticide Laboratory and adduce evidence of the report so given. That such certificate by the Director of CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under Sub-section (3) of Section 24. That such certificate by the Director of CIL has a proof of his defence to dislodge the conclusiveness attached to the report of the Insecticide Analyst under Sub-section (3) of Section 24. The other option is, after the complaint is laid in the court, the copy of the sample that is lodged with the court by the Insecticide Inspector, would be requested to be sent by the court to the CIL and the report thus given by the Director of CIL shall be conclusive evidence as to the quality, content and facts stated therein. The cost thereof is to be borne either by the complainant or by the accused, as may be directed by the Court. 6. Unfortunately, in this case, the Appellant did not adopt the course as was required under the Act. Of course, the Respondent, without availing of the remedy of report by the Director of CIL may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail of the statutory defence. The Appellant had not been given the third sample to the Respondent. 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 the Chief Judicial Magistrate would be rendered fruitless. Consequently, though for different reasons the complaint quashed by the Court may be justified warranting no interference. 20. 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 the Chief Judicial Magistrate would be rendered fruitless. Consequently, though for different reasons the complaint quashed by the Court may be justified warranting no interference. 20. From a careful reading of what has been laid down in National Organic Chemical Industries Limited (supra), what transpires is that a person, who has not been provided with a portion of the sample or has not been provided with the report, may not be entitled to plead deprivation of the statutory defence, for, in a given case, on the request made by the person from whom the sample was taken or by the person, whose name, address and other particulars have been disclosed under Section18A, it is possible for the Court to send to the CDL the portion of the sample, which may have been made available to the Court under the provision of Section 24(3), and the said Laboratory's report would be final and conclusive of the facts stated in such a report. Thus, mere omission to send one portion of the sample or one of the copies of Government Analyst's report to the person, whose name, address and other particulars have been disclosed under Section 18A, may not if so facto vitiate such a person's trial. 21. What is, however, of immense importance to note is that while mere omission to furnish one portion of the sample or one of the copies of the Government Analyst's report may not ipso facto vitiate the trial, the fact remains that the right of the person from whom the sample has been taken or whose name has been disclosed under Section 18A to have a portion of the sample analyzed by the CDL cannot be taken away inasmuch as it would amount to depriving a person of his statutory right to have the sample tested by the CDL, in the present case, when the Petitioner has been made an accused on the basis of the disclosure made by the vendor, one portion of the sample ought to have been sent to the present Petitioner so as to enable the present Petitioner to get the sample analyzed by the CDL if the Petitioner so wished. Therefore, in a given case, if the Court is satisfied that the omission to send one of the samples or one of the copies of the Government Analyst's report has deprived a person of his statutory right to have the sample tested by the CDL, such denial of statutory right of the accused would, if can be shown to have caused prejudice to the accused, be sufficient to vitiate his trial. This position of law can be easily gathered from the decision in the case of Unique Farmaid (P) Ltd. and Ors., reported in (1999) 8 SCC 190 , wherein the Apex Court, while dealing with the provisions of the Insecticides Act, 1968, which are similar to the ones as we find in the Drugs and Cosmetics Act, 1958, observed and held as follows: 11...The procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from the Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the Respondents were asked to appear before the Court, the expiry date of the insecticide was already over and sending of the sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In State of Punjab v. National Organic Chemical Industries Ltd. this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have the sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the Court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lai Mittal under the Drugs and Cosmetics Act, 1940, Municipal Corpn. of Delhi v. Ghisa Ram, Chetumal v. State of M.P. and Calcutta Municipal Corpn. v. Pawan Kumar Saraf all under the Prevention of Food Adulteration Act, 1954. 12. 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 Insecticide Inspector or the court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases the Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the Court, the self-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. 13. In these circumstances, the High Court was right in concluding that it will be an abuse of the process of the 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. Emphasis added 22. From the decision in State of Haryana v. Unique Farmaid (P) Ltd. and Ors. The High Court rightly quashed the criminal complaint. We uphold the order of the High Court and would dismiss the appeals. Emphasis added 22. From the decision in State of Haryana v. Unique Farmaid (P) Ltd. and Ors. (supra), what also becomes clear is that when the delay in furnishing the sample or Government Analyst's report makes it impossible for an accused to exercise his statutory right to get the sample analyzed by the CDL, such deprivation of right would vitiate the trial of the accused. 23. In the light of the law discussed above, when I turn to the facts of the case at hand, what attracts the eyes, most prominently, is that the drug, in question, was manufactured in July, 2000, and the self life of the said drug was to expire in June, 2002. The sample was taken on 06.04.2001, but the complaint was lodged, in the Court, on 10.04.2002. The summons, in the present case, was, admittedly, issued to the Petitioners, on 03.08.2002, asking the Petitioner to appear in the Court on 07.09.2002. Thus, by the time the accused-Petitioner was asked to appear before the Court, the expiry date of the drug was already over. Hence, the sending of the sample to the CDL for test would have been of no consequence at all. Apart from the fact that the Inspector did not send one portion of the sample taken from M/s Pharm Assam to the present Petitioner, though the Petitioner's name had, admittedly, been disclosed in terms of the provisions of Section 18A, the Petitioner was not even furnished with a copy of the Government Analyst's report. By the time the summons was issued, on 03.08.2002, to the Petitioner, the self life of the drug, in question, already stood expired. In these circumstances, it is evident that no fruitful purpose would be served if one of the portions of the sample, available with the Court, is sent to the CDL. Thus, the Petitioner has been permanently deprived of its valuable right to get the sample, in question, tested or analyzed by the CDL. In these circumstances, it is evident that no fruitful purpose would be served if one of the portions of the sample, available with the Court, is sent to the CDL. Thus, the Petitioner has been permanently deprived of its valuable right to get the sample, in question, tested or analyzed by the CDL. When not sending of a portion of the sample or non-furnishing of a copy of the report of the Government Analyst permanently deprives a person of his right to get the sample tested or analyzed by CDL, such deprivation would vitiate such person's prosecution, for, prejudice caused to such a person would be inherent in such a proceeding inasmuch as such a person would never be able to have the benefit of the CDL's report, though the law has given such a person the right to get the sample tested or analyzed by the CDL, whose report would finally determine the fate of such a person's prosecution. 24. What, thus surfaces from the discussion held above is that in the present case, when it is the admitted fact that a portion of the sample had not been sent to the present Petitioner, though the Petitioner's name, address and other particulars had been disclosed under Section 18A and when no copy of the Government Analyst's report had been made available to the Petitioner and when, above all, the summon was issued to the Petitioner after the shelf-life of the drug, in question, already stood expired, there can be no escape from the conclusion that the Petitioner has been deprived of an extremely valuable statutory right to get the sample tested or analyzed by CDL. Thus, prejudice caused to the present Petitioner is inherent in its (the Petitioner's) prosecution. Hence, the prosecution of the Petitioner would not yield any fruitful result. In such circumstances, no charge against the Petitioner ought to have been framed and the Petitioner ought to have discharged. Consequently, any further proceedings of the case, in question, would be an abuse of the process of the Court. 25. Because of what have been discussed and pointed out above, the impugned order cannot be allowed to stand good on record. 26. In the result and for the reasons discussed above, the impugned order, dated 07.04.2007, is hereby set aside and the accused-Petitioner is hereby discharged. 27. 25. Because of what have been discussed and pointed out above, the impugned order cannot be allowed to stand good on record. 26. In the result and for the reasons discussed above, the impugned order, dated 07.04.2007, is hereby set aside and the accused-Petitioner is hereby discharged. 27. With the above observations and directions, this Criminal Petition shall stand disposed of.