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2020 DIGILAW 691 (RAJ)

Arvind Mittal v. State of Rajasthan

2020-11-04

SANJEEV PRAKASH SHARMA

body2020
JUDGMENT Sanjeev Prakash Sharma, J. - The petitioner has challenged the order dated 09.01.2020 whereby the learned Additional Sessions Judge, Bharatpur has refused to discharge the petitioner of the offence under Section 27 (d) of the Drugs and Cosmetic Act, 1940 (hereinafter referred to as 'the Act of 1940'). 2. Learned counsel for the petitioner submits that the sample was collected of an unquoted tablet MAFSIS from the company which was stated to be manufactured in October, 2004. The disintegration time of the tablet was found upon the test being conducted as 72 minutes instead of 15 minutes as provided, and therefore, case under Section 27 (d) of the Act, 1940 was registered against the petitioner on 03.09.2015 and on 03.09.2015, cognizance was taken. The petitioner challenged the cognizance order pointing out that after the test was conducted at Forensic Science Laboratory (FSL), Jaipur the petitioner exercised the right under Section 25 (3) of the Act, 1940 in challenging the said FSL Report and therefore, the concerned sample was sent for re-examination to the Central Drugs Laboratory, Calcutta for a second report. 3. Learned counsel submits that the second report was submitted by testing of the concerned drug on 05.11.2007 and 21.11.2007, however such report by the Central Drugs Laboratory, Calcutta was of no avail and could not be taken into consideration as the expiry date of the tablet was September, 2007. The second report, therefore, cannot be said to be authentic nor can be looked into for holding the petitioner guilty of the charges and therefore, the cognizance taken by the court was unjustified. However, by the impugned order, the trial court has held that such aspect cannot be looked into at this stage and the matter can only be examined at the stage of trial. Learned counsel further submits that the petitioner cannot be forced to face the trial in case where prima facie, from the investigation and documents available before the Court, no case for conviction can be made out against the petitioner. 4. Learned Public Prosecutor submits that the first report clearly showed that the tablet was spurious and the first report is available on record and the same can also be looked into for the purpose of holding the petitioner guilty of the charges. 5. I have considered the submissions. 6. 4. Learned Public Prosecutor submits that the first report clearly showed that the tablet was spurious and the first report is available on record and the same can also be looked into for the purpose of holding the petitioner guilty of the charges. 5. I have considered the submissions. 6. The Act of 1940 lays down comprehensively the method and manner in which the Inspectors conduct the inspection and also lays down the manner in which the concerned drug shall be analyzed. The report of Government Analysts is to be the sample of the drug as required to be obtained in terms of Section 25 of the Act, 1940 which reads as under:- "25 Reports of Government Analysts. (1) The Government Analyst to whom a sample of any drug 116 [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 117 [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 118 [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 116 [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." 7. It is trite law that a person cannot be made to face the trial if from the documents which are available before the concerned Court after investigation, do not make out a case against him at the stage of taking cognizance or at the stage of framing charge, the concerned Court can examine the relevant document and reach to the conclusion whether process is required to be continued as against the accused. 8. In the present case, as apparent from the facts, after the accused exercised his right under Section 25 (3) & 25 (4) of the Act, 1940, the sample was sent to the Central Drugs Laboratory, Calcutta for re-examination by the Chief Judicial Magistrate. A letter was also sent for sending the report at the earliest. However, the sample was tested only on 05.11.2007 and 21.11.2007 as has come on record. Thus, the sample was tested after the expiry date which was admittedly September, 2007. A report of Central Drug Laboratory, Calcutta therefore, cannot be taken into consideration for proceedings against the petitioner. It is also apparent that after the concerned person exercised his right under Section 25 (3) & 25 (4)of the Act, 1940, the earlier report would have no meaning and cannot be looked into. Thus, the contention of learned Public Prosecutor that earlier report will have to be taken into consideration is not made out. It is also apparent that after the concerned person exercised his right under Section 25 (3) & 25 (4)of the Act, 1940, the earlier report would have no meaning and cannot be looked into. Thus, the contention of learned Public Prosecutor that earlier report will have to be taken into consideration is not made out. The Government Analysts report thus prepared earlier in point of time, will have to be ignored. 9. In the case of M/s Endurance Health Care Ltd. and others Vs. State of Rajasthan and another, S.B. Criminal Miscellaneous Petition No. 948/2010, decided on 10.07.2018, a co-ordinate bench of this Court held that the right under Section 25 (3 & 4) of the Act, 1940 is valuable right and if such right is lost, prejudice will be caused and the Court held as under:- "Mandate of Section 25(4) of the Act postulates that accused can request the court to call for the sample and send it for analysis to Central Drugs Laboratory but by the time the petitioners were summoned and served with the notice, shelf-life had already expired and petitioners lost their right to get the sample reanalysed from Central Drugs Laboratory, thus the petitioners rightly pleaded that a valuable right has lost and prejudice has been caused to them." 10. Keeping in view the above, the order passed by the learned Court below is found to be erroneous. Once it is noticed that the test has been conducted after the expiry date, the natural corollary is that the petitioner cannot be held guilty for the said drug on the basis of earlier Government Analysts report and is therefore, entitled to be discharged. 11. Accordingly, the order passed by the learned Sessions Judge, Bharatpur dated 09.01.2020 is set aside. The cognizance order dated 03.09.2015 passed by the learned Magistrate is quashed and set aside and the petitioner is discharged. 12. The petition is accordingly allowed.