JUDGMENT : Umesh Trivedi, J. 1. Since common question of law is involved in both these matters, they are being disposed of together by this common judgment. 2. The question of law raised in these applications is concerning about the valuable right of the accused, as envisaged under Section 25(4) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as "the Act"), requesting the Court to send the sample of drug produced before it to the Central Drugs Laboratory, where the complaint against the accused is filed much after the shelf life of the sample expired. Facts of Special Criminal Application No. 2985 of 2017 3. In this case, the petitioners as Directors of one M/s. Divine Life Care Pvt. Ltd., Ahmedabad along with the Company itself prosecuted for manufacturing of a Drug named "Rabivin-20 Tablets" found to be spurious Drugs making them liable for prosecution under Sections 18(a)(i), 18(a)(vi) punishable under Section 27 of the Act. One Mr. L.R. Patel, Drug Inspector, empowered under the Act to act as Drug Inspector in the Ahemedbad City, took a sample of aforesaid tablets from M/s. Clavin Life Sciences, Naroda, Ahmedabad for the purpose of test by Government Analyst after following the due procedure prescribed under the Act and Drugs and Cosmetics Rules, 1945 (hereinafter referred to as "the Rules"). The said sample was drawn on 13.02.2014 and sent for the purpose of analysis to the Government Analyst, Vadodara on 21.02.2014. The Government Analyst, Vadodara vide its report dated 07.10.2014 declared the sample of drug to be spurious as the sample did not indicate the presence of Rabeprazole Sodium. 4. The Drug Inspector on 17.10.2014 received the said report from Government Analyst, Vadodara. Therefore, in compliance with the provisions of the Act, a copy of Government Analyst's report was sent to M/s. Clavin Life Sciences vide letter dated 17.10.2014 as the sample was drawn from it demanding details about the purchase of the said drugs. Since till 13.11.2014 M/s. Clavin Life Sciences, from whom sample was drawn, did not respond, the complainant - Drug Inspector personally visited it. On inquiry from the person in charge of M/s. Clavin Life Sciences, it was revealed that it has been purchased from M/s. Divine Life Care Pvt. Ltd., on 22.02.2013 in bulk and evidencing the same, it produced purchase bill. 5. On inquiry from the person in charge of M/s. Clavin Life Sciences, it was revealed that it has been purchased from M/s. Divine Life Care Pvt. Ltd., on 22.02.2013 in bulk and evidencing the same, it produced purchase bill. 5. Therefore vide letter dated 14.11.2014 M/s. Divine Life Care Pvt. Ltd., who happens to be a Manufacturer of the Drugs in question, provided with one sealed pack sample along with original copy of Government Analyst Report under Sections 23(4)(iii) and 25(2) of the Act respectively through Registered Post A.D. It is averred in the complaint that Drug Inspector-original complainant received the said Registered Post A.D. on 28.11.2014 returned back as the premises found closed. Therefore, the complainant - Drug Inspector on 4.12.2014 obtained the telephone number of the Directors of M/s. Divine Life Care Pvt. Ltd., which is available in the records of the Head Office, informed him about the report as also the sealed pack sample drawn and asked applicant No. 1 to get it from the office of the Drug Inspector. Pursuant thereto, the petitioner No. 1 herein - Rajesh Ramanlal Shah as Director of Manufacturer Company being M/s. Divine Life Care Pvt. Ltd., visited the office of Drug Inspector - complainant on that very day i.e. 04.12.2014 and obtained the original test report and one sealed pack sample and passed on the receipt thereof. 6. It is further averred in the complaint that the Manufacturer being M/s. Divine Life Care Private Limited vide its letter dated 28.12.2014 represented that they do not agree with the report of the Government Analyst, Vadodara and they intend to challenge the test report. Therefore, vide letter dated 05.01.2015, the Drug Inspector-complainant informed the accused, which includes the petitioners along with manufacturer Company, that if they do not agree with the test report of Government Analyst, Vadodara, they may contact to the Office of Chief Metropolitan Magistrate, Ghee Kanta, Ahmedabad since shelf life of the sample is to expire on 31.01.2015, to see that it is tested by the Central Drugs Laboratory before that. It is claimed in the complaint that the said letter dated 05.01.2015 written by the Drug Inspector - complainant received back with an endorsement "refused" on 16.01.2015. 7. It is claimed in the complaint that the said letter dated 05.01.2015 written by the Drug Inspector - complainant received back with an endorsement "refused" on 16.01.2015. 7. It is further averred in the complaint that therefore after obtaining residential address of the Director of Manufacturer Company from the Head Office, the complainant went to the house of the petitioner No. 1 and since other members refused to accept the letter, it was sent through the Registered Post A.D. at the residential address of the accused No. 1. It is further averred that M/s. Divine Life Care Pvt. Ltd. - Manufacturer and accused No. 3 in the case vide letter dated 25.01.2015, which was received in the office of the Drug Inspector on 28.01.2015, informed that it wants to challenge the report and for which requested to make an application to the Court. But since shelf life was to expire on 31.01.2015, hardly few days were left, Court could not be requested by the Drug Inspector to send the same to the Central Drugs Laboratory, Kolkata. Hence, there is no report from Central Drugs Laboratory, Kolkata on record of the case. However, well in advance on 04.12.2014 in person, original test report as also the one sealed pack sample and the procedure to challenge the report duly made aware to the applicant No. 1 by the Drug Inspector, they unnecessarily spent time in communicating with the office of the Drug Inspector, deliberately not accepting the letters, wasted the necessary time till shelf life of the sample was over, which is not fair on the part of the accused. 8. It is further averred in the complaint that after obtaining the necessary sanction from the Controlling Authority and the Commissioner of Foods and Drugs Administration, Gujarat State dated 28.10.2016, the complainant has filed the aforesaid complaint on 05.12.2016 against the applicants and M/s. Divine Life Care Pvt. Ltd. as manufacturer of the Drugs in question. Fact of the Criminal Misc. Application No. 838 of 2016. 9. The applicants, Manufacturer Company and Director of the said company filed the application seeking quashing of the complaint and process issued against them vide Criminal Case No. 2630 of 2009 pending in the Court of learned Chief Judicial Magistrate, Porbandar for the offences under Sections 18(a)(i), 18(a)(vi) 18(c) and 18(b) punishable under Section 27 of the Act. 10. One Mr. The applicants, Manufacturer Company and Director of the said company filed the application seeking quashing of the complaint and process issued against them vide Criminal Case No. 2630 of 2009 pending in the Court of learned Chief Judicial Magistrate, Porbandar for the offences under Sections 18(a)(i), 18(a)(vi) 18(c) and 18(b) punishable under Section 27 of the Act. 10. One Mr. Ramesh N. Ram, the then Drug Inspector pursuant to information received visited and inspected one M/s. Patel Pharma Distributors, Porbandar 08.01.2004 and drawn sample of as "Gynotocin 1 ml" having shelf life of it upto October 2004, which is manufactured in November 2002 by the applicant No. 1- Firm. The outer blister and internal ampoule inspected in presence of partner of M/s. Patel Pharma Distributors found to be at variance. Therefore, 5 samples of the said injection were drawn and examining the outer label on blister pack, name of manufacturer, date of manufacturing as also the shelf life reflected on the paper label of the blister pack whereas, lower part of it found to be of plastic and the label of the ampoule contained in blister in 2 of it 1 ampoule labelled as Gynotocin injection 1 ml another ampoule label reads as Valosin 1 ml injection. In both ampoules batch number found to be same i.e. GFG2049. Therefore, equal 4 samples were drawn (4/2/1 ml) in presence of panch witness as also the accused No. 10, who is the partner of M/s. Patel Pharma Distributors, Porbandar. Name of Manufacturer reads on it as Sigma Laboratories Ltd., Goa. After drawing the samples as per the Act and the Rules, one sealed pack sample drawn entrusted to accused No. 10- Manish Vachhani-partner, from whom, samples were drawn and seized 3 sealed pack samples for the purpose of carrying out the procedure laid down in the Act and Rules. It is averred in the complaint that on 08.01.2014 the then Drug Inspector Mr. Ramesh N. Ram recorded the voluntary written statement of accused No. 10- Manish Vachhani - partner of M/s. Patel Pharma, the retailer from whom the samples were drawn. 11. On inquiry with accused No. 10- Partner of retailer about the purchase of the said drugs, name M/s. Sahyog Sales Corporation, Aslali, accused No. 5 in the case came to be revealed as wholesale distributor of the Drugs, after following necessary formalities and obtaining necessary details from him. 11. On inquiry with accused No. 10- Partner of retailer about the purchase of the said drugs, name M/s. Sahyog Sales Corporation, Aslali, accused No. 5 in the case came to be revealed as wholesale distributor of the Drugs, after following necessary formalities and obtaining necessary details from him. Out of remaining three sealed pack samples one was sent to Government Analyst, Vadodara with a request to give top priority for the examination of the samples on 09.01.2004. Pursuant thereto, the office of Government Analyst, Vadodara vide its letter dated 06.04.2004 requested to provide it one more sealed pack sample for the purpose of analysis. Pursuant thereto, the then Drug Inspector Mr. Ramesh N. Ram vide letter dated 16.04.2004 forwarded one more sealed pack sample to the Government Analyst, Vadodara. The Government Analyst, Vadodara vide report dated 06.07.2004 reported that the sample is not of standard quality as defined under the Act and Rules on the ground that ampoule No. 1 labelled as Valosin does not contain valethamate bromide as active agent but it shows 5.38 unit ml oxytocic activity and ampoule labelled as Gynotocin sample complies with test for identification and it contains 96% of the claim made on the label for oxytocic activity. As per the complaint, the then Drug Inspector vide letter dated 28.07.2014 provided the copy of test report to M/s. Patel Pharma Distributors, Porbandar, from whom, samples were drawn and asked it to stop sell and purchase of the said drugs and provide self attested copy of bill for the purchase of the said drugs. 12. Since at the time of inspection M/s. Patel Pharma Distributors discloses that the said drugs were purchased from the Sahyog Sales Corporation, Aslali, Ahemedbad - accused No. 5 in the case, the then Drug Inspector Mr. Ramesh N. Ram vide letter dated 01.12.2005 sent one copy of test report to the accused No. 5. On 10.12.2005, Mr. Ramesh Ram and K.K. Goswami, Drug Inspectors of Ahmedabad Rural visited the M/s. Sahyog Sales Corporation, Aslali, Ahemedbad, from whom, retailer purchased the said drugs and the partner Mr. Ramesh N. Ram vide letter dated 01.12.2005 sent one copy of test report to the accused No. 5. On 10.12.2005, Mr. Ramesh Ram and K.K. Goswami, Drug Inspectors of Ahmedabad Rural visited the M/s. Sahyog Sales Corporation, Aslali, Ahemedbad, from whom, retailer purchased the said drugs and the partner Mr. Kiran Shah provided the receipt thereof having received the letter as also the test report and disclosed that the said drugs have been purchased from Sigma Laboratories Limited, Bhivandi and stated that the said goods were provided to M/s. Patel Pharma Distributors also being retailer and as per his knowledge M/s. Sigma Laboratories, Goa has stopped manufacturing activities. 13. On disclosure of the name of the manufacturer, Mrs. H.N. Desai, Drug Inspector on 06.05.2008 visited the premises of it and had obtained the necessary documentary evidence and informed Mr. Pramod K. Jain, Director of Foods and Drugs, Panji Goa that at the premises of accused No. 1 - Manufacturer, a detail inspection for collection of necessary documents is necessary as they have manufactured drugs of not a standard quality as defined under the Act in respect of Gynotosin Injection with Batch number, date of manufacturing as also the shelf life of it. While Smt. N.H. Desai visited the premises of Sigma Laboratories, it was found that they have vide letter dated 30.04.2007 requested Director, Food and Drugs Administration, Goa, for cancellation of their licence. After complying with the aforesaid formalities and obtaining necessary record through Foods and Drugs Administration, Panji, Goa, the aforesaid Criminal Case has come to be filed for the offence as aforesaid against in all 11 accused. 14. It is pertinent to note that both these applications are filed by the Directors/Ex-Directors of the Manufacturer, who manufactured drugs which are not of standard quality. Arguments in Special Criminal Application No. 2985 of 2017. 15. Ms. Ambika Sharma, learned advocate for Mr. Ankit Shah, learned advocate for the petitioners submitted that the petitioners were Directors of the Manufacturer Firm, who have been prosecuted without following due procedure under the Act and the Rules. Arguments in Special Criminal Application No. 2985 of 2017. 15. Ms. Ambika Sharma, learned advocate for Mr. Ankit Shah, learned advocate for the petitioners submitted that the petitioners were Directors of the Manufacturer Firm, who have been prosecuted without following due procedure under the Act and the Rules. She has submitted that though the petitioners declared their intention to adduce evidence in controversion of the report of the Government Analyst vide intimation dated 25.12.2014 i.e. well within time as provided under Section 25(3) of the Act, the complainant failed to send the sample to the Central Drugs Laboratory depriving the petitioners of their valuable right to have report from it, which will supersede the report of Government Analyst. Though complaint states about such intimation dated 28.12.2014, it is well within the period of 28 days as provided under Section 25 of the Act. Not only that the complaint in the present case came to be filed on 05.12.2016 whereas, shelf life of the Drug in question was 31.01.2015, depriving the petitioners even to request the Court where prosecution is launched to send the sample to the Central Drugs Laboratory for the purpose of test and the report of which shall be conclusive evidence of the facts stated therein. She has further submitted that if the complainant would have initiated prompt action, the petitioners would not have been deprived of their valuable right to get sample retested from the Central Drugs Laboratory and the report of which is having supremacy over the report of Government Analyst and being a conclusive evidence of the facts stated therein. She has submitted that the Supreme Court has held that a right under sub-section (4) of Section 25 of the Act to be a valuable right of the accused to get the sample retested through the Central Drugs Laboratory, who have not been provided for any right to get it tested during the proceedings conducted by the Drug Inspector. She has submitted that the Supreme Court has held that a right under sub-section (4) of Section 25 of the Act to be a valuable right of the accused to get the sample retested through the Central Drugs Laboratory, who have not been provided for any right to get it tested during the proceedings conducted by the Drug Inspector. She has submitted that it is only for the first time vide phone call dated 04.12.2004 the applicant No. 1 was informed about the test report and asked to collect it from the office of Drug Inspector-complainant along with sealed pack sample and within the time stipulated under sub-section (3) of Section 25 of the Act it requested to the Drug Inspector, as the proceedings were pending before him at the relevant point of time, declaring their intention to adduce evidence in controversion of the report to make an application at concerned Court for retest of the sample in question through Central Drugs Laboratory. She has further submitted that by the communication dated 25.12.2014 or take it to be 28.12.2014 as mentioned in complaint the petitioner No. 1 had even agreed for the payment to be made for the retest of the sample. Still however, the said valuable right of the accused came to be denied by the Drug Inspector himself as also by his action, said right is being denied to the accused as complaint came to be filed much after shelf life of the drug in question was over. She has further submitted that the communication dated 25.12.2014 declaring the intention of the petitioners to adduce evidence in controversion of the report and requesting the Drug Inspector to request the Court by making an application for retest of the sample, though averred in the petition and copy is produced at page No. 29 of the compilation, not dealt with by the complainant in her reply to this petitions at all. She has further submitted that even during the course of hearing also, the said communication dated 25.12.2014 is not denied having been received, by the learned APP. However, complaint refers about communication dated 28.12.2014, received on 2.1.2015 as orally submitted. Even if it is dated 28.12.2014 it is within time. She has further submitted that even during the course of hearing also, the said communication dated 25.12.2014 is not denied having been received, by the learned APP. However, complaint refers about communication dated 28.12.2014, received on 2.1.2015 as orally submitted. Even if it is dated 28.12.2014 it is within time. Thus, according to her, it is clear that the valuable right of the accused is denied by the complainant and therefore complaint filed and process issued is required to be quashed and set aside. Criminal Misc. Application No. 838 of 2016. 16. Mr. Ankur Oza, learned advocate for the applicants submitted that the samples of the drug alleged to have been manufactured by the applicants came to be drawn on 08.01.2004 and the shelf life of the drug was over on 31.10.2004. However within the said period, neither the copy of the test report nor the sealed pack sample was ever provided to the applicants being manufacturer of the said drug. Thereby, it is submitted that, the applicants are deprived of their valuable right to get the sample analyzed by the Central Drugs Laboratory, within the shelf life of the sample itself. Therefore, he has requested this Court to quash the proceedings against the applicants. 17. He has further submitted that even according to the complainant till May 2008 factory premises of the applicants being manufacturer was never visited by the complainant or its any of the officer of Drugs and Foods Administration. Thus, even long after the shelf life of the sample of the drug got over in October 2004, being Manufacturer the applicants were never informed about the report of government analyst or even provided with the sealed pack sample as provided under the Act. He has further submitted, not only that, the complaint has come to be filed only in the year 2009 i.e. 5 years after the shelf life of the sample was over. Over and above, according to him, for a pretty long time, no summons were served to the applicants and on coming to know about the prosecution, the applicants preferred this petition before this Court, which is affirmed on 23.12.2015. Over and above, according to him, for a pretty long time, no summons were served to the applicants and on coming to know about the prosecution, the applicants preferred this petition before this Court, which is affirmed on 23.12.2015. He has further submitted that the action of the complainant and his office deprived the applicants of their valuable right under sub-section (4) of Section 25 of the Act and therefore the prosecution initiated against the applicants is required to be quashed on that ground alone. 18. The learned advocates appearing for the accused in both the matters relied on a decision in the case of M/s. Medicamen Biotech Ltd. & Anr. Vs. Rubina Bose, Drug Inspector reported in AIR 2008 SC 1934 for the proposition that the denial of opportunity to the accused by the Drug Inspector sending the sample for retest by the Central Drug Laboratory when accused has declared his intention to adduce evidence in controversion of the report of Government Analyst, the valuable right of the accused has lost as provided under sub-section (4) of Section 25 of the Act and therefore, complaint/proceedings filed against the appellant therein being manufacturer liable to be quashed. They have further relied on the decision of Vilco Laboratories Vs. The State of Gujarat and Anr. reported in 1975 CriLJ 965 for the proposition that once the accused has complied with sub-section (3) of Section 25 of the Act and deprivation of his right under sub-section (4) of Section 25 of the Act due to gross delay in launching the prosecution, the report of Government analyst does not become conclusive and therefore, a finding based on government analyst's report in that case came to be set aside by the Court. In short, denial or not providing opportunity to declare intention to adduce evidence in controversion of the report by the Drug Inspector along with fact of filing the complaint before the Court after the shelf life of the sample in question gets over, it is held by the Supreme Court as also the Gujarat High Court that accused is deprived of his valuable right and therefore, no prosecution can sustain against the accused. 19. Learned advocates for the accused in both the applications have further relied on the decision in the case of Shivnarayan Bansal and Another Vs. State of Haryana and Anr. 19. Learned advocates for the accused in both the applications have further relied on the decision in the case of Shivnarayan Bansal and Another Vs. State of Haryana and Anr. reported in 1996 CriLJ 338 for the proposition that non-sending of sample for testing to the Central Drugs Laboratory in spite of its information given by the petitioners - accused in time amounts to non-compliance of the mandatory provisions of Section 25(3) of the Act and therefore, complaint and proceedings were quashed by the High Court. 20. Learned advocates appearing for the accused in both the applications have relied on the judgment of the Supreme Court in the case of Laborate Pharmaceuticals India Ltd. Vs. State of Tamil Naidu reported in AIR 2017 SC 2423 for the proposition that Section 25(4) of the Act provides a valuable right to the accused to get the sample tested through the Central Drugs Laboratory, which cannot be denied to the accused by filing complaint much after the shelf life of the sample gets over. They have further submitted that considering the right to be a valuable right, proceeding against the accused came to be quashed by the Supreme Court. 21. As against that, Mr. Mitesh Amin, learned Public Prosecutor and Senior Counsel assisted by Ms. Hansa Punani, learned Additional Public Prosecutor submitted that the arguments advanced by the petitioners of Special Criminal Application No. 2985 of 2017 that they were informed about the report of Government Analyst and furnishing sealed pack sample to them only on 04.12.2014 is misconceived. Elaborating the same, Mr. Amin, learned Senior counsel submitted that since the letter dated 14.11.2014 sent through the Registered Post A.D. containing the report of Government Analyst as also the sealed pack sample came to be returned back, as the premises found to be closed, received in the office of Drug Inspector on 28.11.2014, it should be presumed to have been served to them, if not on 25.11.2014 the date of endorsement on it, but on 28.11.2014 the date on which the Drug Inspector received it back. Therefore, he has submitted that even presuming that the petitioners have declared their intention to adduce evidence in controversion of the report of Government Analyst vide communication dated 25.12.2014, since it is not within the time as prescribed under sub-section (3) of Section 25 of the Act, therefore he has submitted that the report of the Government Analyst became conclusive evidence against the petitioners herein. It is further submitted that therefore filing of the complaint much after the shelf life of the sample gets over pales into insignificance. It is further submitted by Mr. Amin, learned Public Prosecutor and Senior Counsel that the petitioners have produced a communication dated 15.11.2014 addressed to the Manufacture - Company, which is at page No. 30 of the compilation, which refers that the copy of analysis report is forwarded to it with the said communication. Therefore, he has submitted that the Manufacturer-Company is apprised and copy of report made available to it vide communication dated 15.11.2014 based on the documents produced by the petitioners themselves. Thus, he has submitted that the petitioners are not permitted to raise such contention that they are not provided with the report of Government Analyst to exercise their valuable right within the time prescribed, therefore, non sending of sample for retest to the Central Drugs Laboratory by the Drugs Inspector based on communication dated 25.12.2014 or 28.12.2014 is justified. He has further submitted that accused failed to declare his intention under Section 25(3) of the Act within time prescribed, he is not entitled to a right under Section 25(4) of the Act. 22. Drawing attention to the complaint, Mr. Amin, learned Senior counsel submitted that even another communication dated 05.01.2015 well within the shelf life of the sample in question got over, the petitioners were requested to see that they approach the Chief Metropolitan Magistrate, Ghee Kanta to get sample analyzed through the Central Drugs Laboratory. The said communication is also refused according to the endorsement made over the envelope containing the said communication. Mr. The said communication is also refused according to the endorsement made over the envelope containing the said communication. Mr. Amin, learned Senior Counsel submitted that considering the conduct of the petitioners, it should be inferred that they have avoided the service of the report deliberately and therefore, it has to be presumed that they have been informed about the Government Analyst's Report and therefore, they were supposed to declare their intention to adduce evidence in controversion of the said report well within time as prescribed under sub-section (3) of Section 25 of the Act. 23. He has further submitted that in view of Section 114 (e) of the Evidence Act, the official acts of the Drug Inspector may be presumed to have been regularly performed. Therefore, he has submitted that the refusal of the communication sent through Registered Post A.D. intimating about the report of Government Analyst must be presumed to have been served to the petitioners on 28.11.2014 and therefore, the intention to adduce evidence in controversion of the report through a communication dated 28.12.2014 is beyond the period prescribed under Section 25(3) of the Act and therefore, on that ground alone, no prosecution can be quashed, as requested. 24. In support of the arguments advanced, Mr. Amin, learned Public Prosecutor and Senior Counsel relied on the decision of the Supreme Court in the case of Amery Pharmaceuticals & Anr. Vs. State of Rajasthan reported in (2001) 4 SCC 382 for the proposition that a Manufacturer is not entitled to get a copy of the report of the Government Analyst as of right if his name is not disclosed under Section 18A of the Act nor one sealed pack sample if it is not drawn from the Manufacturer himself. 25. Mr. Amin, learned Senior counsel by drawing attention to Section 23 of the Act, more particularly, sub-section (3) of Section 23 and sub-section (4) of Section 23 of the Act, submitted that if the name of the manufacturer is not disclosed under Section 18A of the Act, he is not required to be furnished with the one portion of the sealed pack sample drawn. He has further submitted that only if sample is taken from the premises whereon Drugs and Cosmetics are being manufactured, sample is required to be divided in three portions only. He has further submitted that only if sample is taken from the premises whereon Drugs and Cosmetics are being manufactured, sample is required to be divided in three portions only. However, he has submitted that in no case the Drug Inspector is obliged to furnish any portion or one container of the sample drawn to be furnished to the Manufacturer. Therefore, he has submitted that intimation and providing copy of the Government Analyst Report through show cause notice dated 15.11.2015, the copy of which produced by the petitioners of Special Criminal Application No. 2985 of 2017 should be held to be sufficient compliance as required under Section 25(2) of the Act. If that is so, according to his submission, petitioners have not declared their intention to adduce evidence in controversion of the Government Analyst Report and therefore, he cannot be permitted to raise any arguments based on sub-section (4) of Section 25 of the Act claiming that they are deprived of their valuable right to get the sample analyzed through Central Drugs Laboratory. 26. Having heard the learned advocates appearing for the respective parties, it would be profitable to refer certain provisions of the Act 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. 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 therefore. (2) Where the price tendered under sub-section (1) is refused or where the Inspector seizes the stock of any drug or cosmetic under clause (c) of section 22, he shall tender a receipt therefore in the prescribed form. (2) Where the price tendered under sub-section (1) is refused or where the Inspector seizes the stock of any drug or cosmetic under clause (c) of section 22, he shall tender a receipt therefore in the prescribed form. (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 premises whereon the drug or 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 dividing a sample 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 send 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 send to the person, if any, whose name, address and other particulars have been disclosed under section 18A. (5) Where an Inspector takes any action under clause (c) of section 22,-- (a) he shall use all despatch in ascertaining whether or not the drug [or cosmetic] contravenes any of the provisions of section 18 and, if it is ascertained that the drug or cosmetic does not so contravene forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized; (b) if he seizes the stock of the drug or cosmetic, he shall as soon as may be, inform a Judicial Magistrate and take his orders as to the custody thereof; (c) without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possessor of the drug or cosmetic, he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order under the said clause. (6) Where an Inspector seizes any record, register, document or any other material object under clause (cc) of sub-section (1) of section 22, he shall, as soon as may be, inform [a Judicial Magistrate] and take his orders as to the custody thereof. "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 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 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 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 analysed 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 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." 27. As per Section 18A, since in both these cases sample is not drawn from the Manufacturer of a drug, the person from whom drug acquired is supposed to disclose to the Inspector the name, address and other particulars of the person, from whom, he acquired the Drugs and Cosmetics, if so required. The language of the Section is couched in the manner that it obliges the Drug Inspector to ascertain the name, address and other particulars of the person from whom, he acquired the drugs and cosmetics. The language of the Section is couched in the manner that it obliges the Drug Inspector to ascertain the name, address and other particulars of the person from whom, he acquired the drugs and cosmetics. In both these cases, from the retailer a sample of the drug has been drawn. Therefore, if at the time of drawing the sample, Inspector would have ascertained the name, address and other particulars from whom he acquired it, after getting the report from the Government Analyst that sample does not confirm to the standard prescribed, prompt action could have been initiated against the accused including manufacturer of the Drug. 28. Considering the provisions made under the Act and the Rules as also the time remaining of the shelf life of the sample drawn, the Drug Inspector is obliged to act very promptly with the sense of responsibility over him with regard to time frame. He cannot afford to wait for atleast 6 months to get the sample analyzed by the Government Analyst from the date when he drew the sample, if shelf life of it expiring within less than a year, he is supposed to act with urgency. Therefore, at the time of drawing the sample, he should have ascertained the name, address and other particulars of the persons from whom retailer acquired the same, so that after receipt of the Government Analyst report, immediate and prompt action could be initiated. It appears that in the present case, more particularly, in Special Criminal Application No. 2958 of 2017, the Drug Inspector woke-up from the slumber nearly after 1 month of furnishing the copy of Government Analyst Report to the retailer, to ascertain the name, address and other particulars from whom he acquired the same. By then only two and half month's shelf life of the sample was remaining. Not only that instead of acting with promptitude, he chose to send the copy of Government Analyst Report as also the one portion of sealed pack sample to the Manufacturer of Special Criminal Application No. 2958 of 2017 whose name is revealed under Section 18A of the Act through Registered Post A.D., that too, on 14.11.2014 as claimed. The said intimation along with report and sample were sent only after ascertaining from the retailer names and address of the person who provided it. The said intimation along with report and sample were sent only after ascertaining from the retailer names and address of the person who provided it. If it could have been ascertained on the date on which samples were drawn, atleast on receipt of the report, it could have been furnished to the manufacturer, saving much precious time. After receipt of a report dated 07.10.2014 received by Drug Inspector on 17.10.2014, he ascertained name, address and other particulars from whom vendor purchased, that too, on 13.11.2014. It would have been ascertained on 13.2.2014 the day on which sample drawn, on receipt of report it could have been served well in time, leaving no complain by anyone to have it reanalyzed before its shelf life is over. 29. Sub-section (2) of Section 25 of the Act obliges the Drug Inspector who "shall deliver" the copy of report to the person from whom the samples were taken and another copy to the person "if any", whose name, address and other particulars have been disclosed under Section 18A of the Act. The use of word "shall deliver" presupposes ascertaining the receipt thereof by the receiver to whom it is intended to be delivered. Though mode of delivery is not mentioned in the provisions, it could have been sent through Registered Post A.D.. However, if it is received by the person to whom it is addressed or if he does not dispute receipt thereof, it can be said to have been delivered. If person disputes delivery thereof Drug Inspector is obliged to show, prima facie, that it is delivered. But when no mode of delivery through post is prescribed, delivery thereof cannot be presumed, on post returned back with endorsement like "premises closed" or "Refused" etc. resorting to even Section 27 of General Clauses Act. Presumption of receipt, unless delivery thereof provided for through post in the Act itself, cannot be raised. If the Act is not expressly providing or requiring any document to be sent/delivered through Post, it cannot be presumed to have been served/delivered in case of dispute, if sent through post, invoking General Clauses Act. The use of word "deliver" ensures the receipt of the same by the intended receiver thereof. If the Act is not expressly providing or requiring any document to be sent/delivered through Post, it cannot be presumed to have been served/delivered in case of dispute, if sent through post, invoking General Clauses Act. The use of word "deliver" ensures the receipt of the same by the intended receiver thereof. Therefore, the complainant being conscious of it, on return back of the postal communication dated 14.11.2014 whereby the manufacturer i.e. the applicants were provided with the copy of Government Analyst Report and a portion of sealed pack sample with an endorsement that premises closed, he obtained a telephone number of the Director of the Company from his Head Office and informed the applicant No. 1 herein about the same on 04.12.2014 over the phone. If on receiving back the Registered post A.D. unserved with an endorsement that premises was closed, there was no necessity, if contention of the prosecution is to be accepted, to provide the copy of report as also the sealed pack sample to the Directors of the Manufacturer Company by calling him over a phone on 4.12.2014 in person. If contact to the Directors of the Manufacturing Company was easily available over the phone instead of sending the letter through Post, the said course of action should have been adopted first by the Drug Inspector. Considering the averments made in the complaint, it is clear that even the complainant is conscious of the fact that receipt of Registered Post A.D. returned back with an endorsement that premise was closed, is no delivery of the report under sub-section (2) of the Section 25 of the Act, therefore he provided in person the report as also seal packed sample to the petitioner No. 1 in Special Criminal Application No. 2958 of 2017 on 4.12.2014 by calling him over the phone as aforesaid. The contention of the learned Public Prosecutor and Senior Counsel Mr. Mitesh Amin with regard to presumption under Section 114(e) of the Evidence Act requires outright rejection. Since the Drugs Inspector failed to ensure delivery of report under sub-section (2) of Section 25 of the Act, sending it, through post cannot be said to be official act. He was obliged under his official act, to deliver the report. As held in earlier part of the judgment by use of word "shall deliver" the provision ensures receipt of the same by the intended person. He was obliged under his official act, to deliver the report. As held in earlier part of the judgment by use of word "shall deliver" the provision ensures receipt of the same by the intended person. If that is not done it can not be said that sending the same by post is the official act presumed to be regularly performed. 30. Not only that on 4.12.2014 after receipt of the report and the sealed pack sample in person by the applicant No. 1, vide communication dated 25.12.2014 or dated 28.12.2014 as claimed in the complaint, within 28 days as provided under Section 25(3) of the Act, declared to the Drug Inspector that he intends to adduce evidence in controversion of the report. At the same time, there was no proceeding pending before the Court and at that time he requested the Drug Inspector to make an application to the concerned Court of law for retest of sample in question at Central Drugs Laboratory. The applicant No. 1 had also agreed to make payment for retest of sample that may be directed by the Court. The provisions made under Section 25(3) of the Act obliges the Drug Inspector with whom the 3rd sample remained before filing of the complaint in the Court to send the same to the Central Drugs Laboratory when person as enumerated therein declared his intention to adduce evidence in controversion of the report. In the present case, instead of sending it or requesting the Court to send it for retest to the Central Drug Laboratory on receipt of the communication dated 25.12.2014, which is neither denied in the reply to this petition being Special Criminal Application No. 2958 of 2017 filed by the petitioners, nor during the course of hearing it is denied, vide communication dated 05.01.2015, the Drug Inspector directed the Manufacturer to approach the Chief Metropolitan Magistrate, Ghee Kanta to adduce evidence in controversion of the report in the Court of law under the Act and Rules as the sample is going to expire on 31.01.2015. Thus it is clear that within 28 days of report of Government Analyst delivered the accused has declared intention to adduce evidence in controversion of the report. Thus it is clear that within 28 days of report of Government Analyst delivered the accused has declared intention to adduce evidence in controversion of the report. Again, the Drug Inspector failed in his duty as on that day there was no complaint filed before the Court, the exercise to approach the Court would have been proved to be in futility. It is not the case of the complainant that despite non filing of complaint one portion of sample is sent to the Court. Thus, it appears that the attempt of the complainant himself, in all probability is to see that even before filing of the complaint, shelf life of the sample in question gets over, depriving the accused to have that sample tested by Central Drugs Laboratory. Not only that the Drug Inspector denied the opportunity to the petitioners when they declare their intention to adduce evidence in controversion by sending the 3rd Portion of the sample which was with him to get it tested through the Central Drugs Laboratory but complainant in the present case filed the complaint after shelf life of the sample expired. That shows callous approach of the complainant which is not pardonable at all. At the same time, once complaint is filed after shelf life of the sample expired, the accused who have already declared intention to adduce evidence in controversion within time prescribed, are surely denied of their valuable right to have it analyzed through the Central Drugs Laboratory and therefore, now applying the precedent cited by the learned advocates for the respective parties, it is clear that the right enumerated in Sub-section (4) of Section 25 of the Act is held to be valuable and mandatory right and deprivation thereof leads to quashing of the proceedings filed against the applicants. The reliance placed in the case of Amery Pharmaceuticals & Anr. (Supra) by the learned Public Prosecutor and Senior Counsel Mr. Amin is not applicable to the facts of these cases as in that case a contention was raised on behalf of the manufacturer, that the Inspector did not send or give one portion of the sample as per the mandatory provisions contained in Section 23(4) (iii) of the Act which infringed their right. Amin is not applicable to the facts of these cases as in that case a contention was raised on behalf of the manufacturer, that the Inspector did not send or give one portion of the sample as per the mandatory provisions contained in Section 23(4) (iii) of the Act which infringed their right. The said contention of the manufacturer therein was repelled by the Hon'ble Supreme Court on the ground that for non supply of portion thereof will not permit the person from declaring his intention to adduce evidence in controversion of the Government Analyst Report within the time stipulated, as report of Government Analyst was already supplied. If person fails to give any notice as mentioned in Sub-section (3) of Section 25 of the Act notifying his intention to adduce evidence in controversion of the report of the Government Analyst, the said report to operate as conclusive evidence as against that person. Therefore, manufacturer having not notified such intention under section (3) of Section 25 of the Act after receipt of the report on the ground that one portion of sample was not furnished to him, cannot successfully then argue that he is deprived of valuable right under sub section (4) of Section 25 of the Act after filing of the complaint against it. However, in the said decision the Supreme Court has recognized the right under sub-section (4) of Section 25 of the Act to be a valuable right of the accused. Thus, the decision relied on by the learned Senior Counsel Mr. Amin will not come to his help, on the contrary, on facts, it helps the accused. 31. The contention raised by Mr. Amin, learned Public Prosecutor and Senior Counsel, that the document produced by the petitioners at page No. 30 reveals that vide communication dated 15.11.2014 a copy of analyst's report was served to him as referred in the communication addressed to the Manufacturer, within 28 days of the receipt thereof, it was incumbent upon the applicants to notify their intention to adduce evidence in controversion of the report. According to Mr. According to Mr. Amin, learned Senior Counsel, declaration of intention vide communication dated 25.12.2014 or 28.12.2014 by the petitioners is surely beyond 28 days as provided under sub section (3) of the Section 25 of the Act and therefore, it was never incumbent upon the Drug Inspector to send the sample for retest to the Central Drugs Laboratory, is also required to be rejected. Since the communication which is produced by the petitioner dated 15.11.2014 is a notice issued under sub rule (2) of Rule 85 of the Rules by the Central Licence Approving Authority asking manufacture as to why licence is not suspended or cancelled, is not a compliance, that too, by the Drug Inspector under sub-section (2) of Section 25 of the Act. Mere supply of copy of the test report of Government Analyst, that too, by Central Licence Approving Authority while issuing show cause notice for suspension/cancellation of licence, the person may be well within contemplation that instead of initiating prosecution, the authority rests contended issuing show cause notice for suspension or cancellation of the license. At any rate, for search, seizure, drawing sample etc., the Drug Inspector is empowered. Therefore, each and every compliance right from drawing sample till filing of the prosecution, the Drug Inspector is empowered. Therefore, even if it is presumed that by communication dated 15.11.2014 issued by the Licencing Authority, the document which is produced by the petitioners, accused were made aware of the report of the Government Analyst, they are not obliged to declare their intention to adduce evidence in controversion of the report, to the Central Licence Approving Authority as it is to be notified to the Inspector as per Section 25(3) of the Act. Since Central Licence Approving Authority is not supposed to have the portion of sample to be submitted to the Court, in no case even if the manufacturer notifies his intention to adduce evidence in controversion thereof, it is supposed to send the same to the Central Drugs Laboratory. Therefore, the Act provides furnishing of the copy of the government analyst report by the Drug Inspector alone. Initiating any other action, by any of the officer of the Food and Drugs Administration will not be presumed to be compliance under sub-section (2) of Section 25 of the Act. Therefore, the Act provides furnishing of the copy of the government analyst report by the Drug Inspector alone. Initiating any other action, by any of the officer of the Food and Drugs Administration will not be presumed to be compliance under sub-section (2) of Section 25 of the Act. At any rate, neither the complaint refers about the said communication nor is prosecution able to point out the date on which it is received by the petitioners. It is only within 28 days of receipt of the same, the petitioners are supposed to notify their intention to adduce evidence in controversion of the government analyst report. Therefore, it can not be successfully argued that communication dated 15.11.2014 which is a show cause notice for suspension or cancellation of licence to be construed as compliance under sub-section (2) of Section 25 of the Act, that too, by the Drug Inspector, as held aforesaid. Hence prosecution is required to be quashed for denial of the opportunity under Section 25(4) of the Act. 32. So far as Criminal Case No. 838 of 2016 is concerned, since name of the applicants were never disclosed under Section 18A of the Act, they are not required to be furnished with the copy of Government Analyst Report under sub-section (2) of Section 25 of the Act. However, in the said case the applicants have been prosecuted vide complaint dated 12.08.2009, that too, after 5 years from the date of drawing of the sample i.e. 08.01.2004 and the shelf life of the said sample expired on 31.10.2004. Thus, the applicants are deprived of their valuable right to get the sample retested through the Central Drugs Laboratory and therefore, report of the Government analyst can never be said to be conclusive proof thereof against the applicants, as it is made available only after launching prosecution when shelf life of sample expired much prior to it. 33. Scanning through the complaint it is very clear that sample was drawn on 08.01.2004 and shelf life of it was to expire on 30.10.2004. However, there is no averment in complaint that copy of Government Analyst Report or any portion of sample is served to the applicants prior to filing of the complaint i.e. before 12.08.2009. 33. Scanning through the complaint it is very clear that sample was drawn on 08.01.2004 and shelf life of it was to expire on 30.10.2004. However, there is no averment in complaint that copy of Government Analyst Report or any portion of sample is served to the applicants prior to filing of the complaint i.e. before 12.08.2009. Therefore, applicants as manufacturers can apply for retest through Central Drugs Laboratory as provided under Section 25(4) of the Act only when they will be served with the summons of the case filed against them i.e. after shelf life of the sample was over. Admittedly, they are denied of their valuable right under Section 25(4) of the Act to have sample retested by Central Drugs Laboratory. 34. In view of the reported decisions as referred to hereinabove in the case of M/s. Medicamen Biotech Ltd. & Anr. and Vilco Laboratories and Laborate Pharmaceuticals India Ltd. (Supra), the prosecution launched against the applicants and process issued against them are required to be quashed and set aside. 35. In the result, both the applications are allowed. The prosecution filed against the petitioners of Special Criminal Application No. 2985 of 2017 vide Criminal Case being Special Drugs and Cosmetics Case No. 1 of 2016 pending before the Court of Additional District and Sessions Judge, Ahemedbad (Rural) along with process issued against them are hereby quashed and set aside qua the applicants. The prosecution filed against the applicants of Criminal Misc. Application No. 838 of 2016 vide Criminal Case No. 2630 of 2009 pending in the Court of learned Chief Judicial Magistrate First Class, Porbanadar along with the process issued thereon are hereby quashed and set aside qua the applicants. Rule made absolute. Copy of this judgment shall be placed in each of the matters.