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2009 DIGILAW 162 (JK)

New Gayzal Pharmaceuticals v. State Of J. &K.

2009-04-09

MOHAMMAD YAQOOB MIR

body2009
1. Quashment of the complaint as well as the cognizance taken thereof by the Court of Judicial Magistrate First Class, (Munsiff), Thathri, Doda is sought. 2. Sample of drug i.e. tablet "GAYSPAS" batch No. T-951 manufactured by the petitioner has been taken by the Drug Inspector, Doda from the shop of respondent no.2 as per the procedure laid down under Section 23 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as "Drug Act"). The Government Analyst vide his test report has declared the drug as not of standard quality as the colour mentioned on the label is not official. In terms of Section 25(2) of the Drug Act, Copy of the report of the analyst has been furnished to the respondent no.2. 3. The Drug Inspector has lodged the complaint under Section 18 (a) (i) read with Section 27(a) of the Drug Act before the Court of Chief Judicial Magistrate, Doda who after taking the cognizance has noticed that the occurrence has taken place at Prem Nagar, Doda, which falls within the jurisdiction of Judicial Magistrate, First Class, (Munsiff) Thathri, so transferred the case to the said Court for trial. 4. The appearing counsel for the petitioner first contended that the proceedings are without jurisdiction as according to him in terms of Section 36-A of the Drug Act, the trial could be commenced only by the judicial Magistrate, First-Class, specially empowered in this behalf by the State Government. The occurrence, admittedly, is of year 2003. The State has issued the notification i.e. SRO No. 44 in terms of Section 36-A of the Drug Act only on 06th of February 2006, so prior thereto, the Chief Judicial Magistrate was not specially empowered to entertain or try the case. The submission is totally misplaced, so, rejected because section 36-A of the Drug Act is applicable only where the case is to be tried summarily and offences is punishable with imprisonment for a term not exceeding three years. As per the complaint and the cognizance taken thereof accused/petitioner is allegedly said to have committed the offence punishable under Section 27(a) (i). The punishment prescribed is for a term which shall not be less than 05 years. The offence is not to be tried summarily so as to attract the application of Section 36-A of the Drug Act. 5. As per the complaint and the cognizance taken thereof accused/petitioner is allegedly said to have committed the offence punishable under Section 27(a) (i). The punishment prescribed is for a term which shall not be less than 05 years. The offence is not to be tried summarily so as to attract the application of Section 36-A of the Drug Act. 5. Counsel next contended that on the stated facts, no offence has been committed because the only allegation is that the drug is mis-branded as the colour mentioned on the label is not official. When the petitioner while responding to the report of the Analyst as was communicated to him has in detail communicated to the Drug Inspector on 01-08-2002 to the effect that colour Apple Green, which has been used in the product is a blend of Tartrazine colour FCF C-I 19140 and Brilliant Blue FCF C.I 42090 and both these colours are official and the colour Apple Green conforms to the I.S. Standard 5346 as is confirmed from the manufacturer and the colours are official and find place in the Schedule `Q of the Drug and Cosmetics Act. This position has been ignored by the Drug Inspector. On scrutiny contention is found to be with substance. Colour Apple Green is certified to be the mixture colour of Brilliant Blue FCF C.I 42090 and Tartrazine C.I. 19140. Same position is supported by Schedule `Q, wherein list of colours permitted to be used in drugs have been listed, which include Tartrazine and Brilliant Blue. Why the Drug Inspector has ignored this position, is not understandable. Least Drug Inspector should have done is that in the complaint he should have made an averment so as to answer the stated position. 6. Learned counsel would further contend that the sample was taken in the year 2000 by the time the report of the Analyst was received, the validity of the drug had expired. When it is so, the prosecution could not be launched, because the petitioner would not get a chance of exercising vested right of getting another part of the sample examined by any other Analyst. As per Section 23 of the Drug Act, when sample is taken it has to be divided into three portions. When it is so, the prosecution could not be launched, because the petitioner would not get a chance of exercising vested right of getting another part of the sample examined by any other Analyst. As per Section 23 of the Drug Act, when sample is taken it has to be divided into three portions. One portion remains with the person from whom it has been taken, so that subsequently if he may have any objection vis-a-vis result recorded by the Analyst that can be made use of, now by the time complaint has been lodged validity of the drug has expired, so could not be used for the purpose. It is in that backdrop the Deputy Controller, Drug and Food had communicated to the Controller, Drug & Food control organization, Jammu on 10th of May 2003 that the drug has expired in July 2002, therefore, prosecution could not be launched against the firm. This communication too has been ignored by the Drug Controller and has instead chosen to launch the prosecution against the petitioner. 7. The violation that too relatable to the drug required for survival of the human beings or required for the cure of the human beings, if found to be adulterated, misbranded, has to be strongly taken note of, launching prosecution cannot be avoided. But for achieving the desired object of getting the culprit involved in the commission of offence punished under the Drug and Cosmetics Act, their shall be a solid base to say something is easy, than to achieve what is required. 8. Exercise of power under Section 561-A of Cr. P.C is to be sparingly made use of so as to ensure avoidance of the abuse of the process and to ensure that the ends of justice are secured. 9. Factual and legal position as stated hereinabove would suggest exercise of such power otherwise by allowing the trial for quite sometime simply in the name of the trial and with no hope of trial ending in conviction shall be totally unreasonable. Enforcement of law shall not result in simply dragging. When by going to trial, result would not change, then such trial/proceedings are required to be truncated. 10. Enforcement of law shall not result in simply dragging. When by going to trial, result would not change, then such trial/proceedings are required to be truncated. 10. Learned Trial Court on the basis of the allegation contained in the complaint and the report of the Analyst has taken the cognizance, but the complainant perhaps has not brought to the notice of the Trial Court the communication of the Deputy Controller wherein the position of the drug having expired in July 2002 has been recorded or otherwise has been ignored by the Learned Magistrate. The sample of the drug as taken in the year 2000, sent to the laboratory for analysis on 6th of April 2000, test report received on 6th of May 2002 means after a gap of two years Analyst has furnished the report. In the process the drug also expired so after such a long gap, the purpose of getting another portion of the sample tested in opposition to the report of the Analyst has become illogical. All these factors have not been taken note of by the Learned Magistrate. 11. The Learned Magistrate seems to have ignored the material produced in support of the complaint. Cognizance taken seems to be casual. 12. The features of the case are exceptional. Therefore, complaint as well as the cognizance taken thereof is quashed. 13. Petition accordingly succeeds. Copy of the order along with subordinate record be sent back to the Trial Court.