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2013 DIGILAW 213 (RAJ)

Shanti Devi v. State of Rajasthan

2013-01-24

GOPAL KRISHAN VYAS

body2013
JUDGMENT 1. - Heard learned counsel for the petitioner. 2. In this misc. petition, the petitioner is challenging the proceedings pending against her in the Court of Addl Chief Judicial Magistrate No. 2, Udaipur in criminal case No. 388/1996 for offence under Sections 18A (1), 17C, 18A (6), 18A, 27A, 27D, 28 read with Section 16 of the Drugs & Cosmetics Act, Act, 1940. 3. The main contention of learned counsel for the petitioner is that petitioner was impleaded as accused No. 3 in the complaint filed by the State and in fact medicine Oxyphenbutazone was seized from the firm M/s Salgiya Medical Store, Udaipur which is said to be purchased from the petitioner firm and in fact the medicine was manufactured by the M/s. Unicure (E) Pvt. Ltd., Noida, UP, who was impleaded as accused No. 7 in the complaint filed by the State. It is contended that proceedings against M/s. Unicure (E) Pvt. Ltd. and Mr. Abdul Matin, Mr. R.A. Chawla, Mr. Abdul Rashid and Mr. Abdul Hamid were quashed by this Court vide order dated 26.3.2007 passed in SB Criminal Misc. Petition No. 595/2002 and proceedings against M/s. Salgia Medical Store were quashed by this Court vide order dated 28.7.2011 passed in SB Criminal Misc. Petition No. 508/2008 and against the petitioner, the only allegation is that she has purchased the said medicine Oxyphenbutazone from M/s. Unicure (E) Pvt. Ltd. and from petition, which was purchased by M/s. Salagia Medical Store. The proceedings against manufacturer and the purchaser have already been quashed on the ground that petitioners had a right to challenge the report of Government Analyst by having the same sent to the Central Drugs Laboratory. Hon'ble Apex Court in the judgment rendered in case of M/s Medicamen Biotech Ltd. v. Rubina Bose, Drug Inspector, reported in 2008 (3) Scale 363 held that accused right to challenge the Government Analyst's report being infringed because the notice to the accused about the report of the Government Analyst was given after the expiry of the shelf-life of the sample. 4. 4. Learned counsel for the petitioner submits that the case of the petitioner is squarely covered with the aforesaid judgment of Hon'ble Apex Court, therefore, the proceedings against the petitioner firm may also be quashed because the case of the petitioner is on the same footing of the firms against whom the proceedings have already been quashed by this Court. 5. Learned Public Prosecutor vehemently opposed the prayer of counsel for the petitioner and submits that case of the petitioner firm is not at par with the proceedings of other co-accused, therefore, this misc. petition may be dismissed. 6. After hearing learned counsel for the parties, I have perused the judgment rendered by Coordinate Bench of this Court passed in SB Criminal Misc. Petition No. 595/2002 (M/s Unicure (I) Pvt. Ltd. & Ors. v. State of Raj. & Ors. in which following adjudication has been made by this Court : "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 tentamount 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." 7. Likewise the other Coordinate Bench of this Court vide order dated 28.7.2011 passed in SB Criminal Misc. Petition No. 508/2008 made following adjudication:- "Suffice it to say that from the facts mentioned above, it becomes apparent that the petitioners had a right to challenge the report of the Government Analyst by having the same sent to the Central Drugs Laboratory. Likewise the other Coordinate Bench of this Court vide order dated 28.7.2011 passed in SB Criminal Misc. Petition No. 508/2008 made following adjudication:- "Suffice it to say that from the facts mentioned above, it becomes apparent that the petitioners had a right to challenge the report of the Government Analyst by having the same sent to the Central Drugs Laboratory. Hon'ble Apex Court in the judgment referred above has clearly held that if the notice to the accused of the Analyst report about the sample being not of standards is given just when the shelf-life of the medicine is about to be over, it will amount to denial of the accused's right to have the second sample of the medicine analysed by the Central Drugs Laboratory, which would vitiate the proceedings. This Court while dealing with the case of M/s Unicure who were the manufacturers of the drug in question, in this very complaint, has quashed the proceedings for violation of Section 25 of the Drugs and Cosmetics Act." 8. In view of above, it is apparently clear that in both the judgments rendered by Coordinate Bench of this Court, it has been held that the petitioner had a right to challenge the report of the Government Analyst by having the same sent to the Central Drugs Laboratory and in this case admittedly, the notice to the accused petitioner was sent after shelf-life of the medicine that amount to denial of the accused right to have the second sample of the medicine analysed by the Central Drugs Laboratory. Therefore, the prosecution of the petitioner is not justified because the petitioner sold the commodity after purchasing from M/s. Unicure (E) Pvt. Ltd to M/s. Salagia Medical Store and petitioner was only seller. In this view of the matter, the proceedings against the petitioner deserves to be quashed. 9. In view of above while following the above judgments rendered by coordinate Bench of this Court in Criminal Misc. Petition No. 595/2002 and SB Criminal Misc. Petition No. 508/2008, this criminal misc. petition is allowed and the proceedings against the petitioner pending in the Court of Addl. Chief Judicial Magistrate No. 2, Udaipur in criminal case No. 388/1996 is hereby quashed. Consequently, the stay application also stands disposed of.Petition Allowed. *******