Rajasthan High Court - Jodhpur
Albert David Ltd.& Ors vs State & Anr on 13 April, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
S.B. Criminal Misc. Petition No. 411/2008
(Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.)
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
ORDER
Albert David Ltd. & ors. Versus State of Rajasthan & Anr.
S.B. Criminal Misc. Petition No. 411/2008
Date of Order: April 13,2012
PRESENT
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr. Vikas Balia, for the petitioners.
Mr. M.A. Bhurat, Public Prosecutor for the State.
Reportable BY THE COURT:'
The instant miscellaneous petition has been filed by the petitioners seeking quashing of the proceedings and the charges framed against them by the learned Chief Judicial Magistrate, Dungarpur by order dated 24.4.2007 in Criminal Case No. 728/1994 for the offences under Sections 18-A (1) and 37 of the Drugs and Cosmetics Act (for short, "the Act"), Succinctly stated, the facts of the case, relevant for the disposal of the instant miscellaneous petition, are that the petitioner No.1 is a company incorporated under the Companies Act, 1956; the company is involved in manufacturing of pharmaceutical and medicinal preparations under a licence issued by the Appropriate Licensing Authority. The preparations manufactured by the petitioner company are also available for sale and distribution in the State of Rajasthan. The Drugs Inspector, Dungarpur collected a sample of the drug Anticoagulant Citrate Dextrose Solution I.P. On 19.11.1992 from Jawahar Medical Store, Dungarpur with the manufacturing date S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 2 of of the drug being 7/1990 (July 1990) and the expiry date being 6/1992(June 1992). From the four parts of the drug samples so seized, one sample was sent for analysis to the Government Analyst, Central Indian Pharma Laboratory, Gaziabad (for short, the CIPL") for testing. {During the process of examination of the record, it came to the light that the original report of the Government Analyst dated 24.02.1992 is in a torn condition and the same has been directed to be laminated).
Upon testing the drug, the Government Analyst, by his report dated 24.02.1992 concluded that the seized drug did not conform to the standards in respect of sterility test as per the Indian pharmacopoeia (I.P.).
The Drug Inspector, Pali who was , also incharge of the District Dungarpur, thereafter conducting the inquiry, sent a copy of the the report of the Government Analyst to to the retailer i.e. M/s. Jawahar Medical Store, Dungarpur on 26.3.1992. The inspection of the premises of the whole-seller H.A. Pharma, Sagwara was carried out on 20.5.1992.
During this period, it is admitted case of the prosecution that no intimation was given to the manufacturing company, i.e. the petitioner No.1, regarding the drug having been seized and having been found to be non-sterile/sub- standard as per the analysis conducted by the Government Analyst. The intimation about the analysis report of the sample was received by the petitioner company on 28.5.1992 for the first time through a communication of the Drugs Inspector intimating it about the drug sample having been found to be S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 3 non-standard.
The case of the petitioner company is that it, by a registered notice dated 18.6.1992, within 28 days from the date of receipt of the notice of the Drugs Inspector) intimated its intention to challenge the report of the Government Analyst by having the same sent to the Central Drugs Laboratory, Kolkata.
Thereafter the Drugs Inspector sent a letter to the factory manager of the petitioner company on 22.02.1993 intimating that since the sample of drug manufactured by the petitioner company had been reported to be not of standard quality, the various details, particularly the names of the Directors and the details of the the manufacturing process etc., were sought for. The petitioner company is said to have sent a reply by its letter dated 11.3.1993, in which a query was made from the Drugs Inspector regarding lack of action on their request earlier made in June 1992 for sending the second sample of the drug to the Central Drugs Laboratory, Kolkata. It was submitted in the reply that a copy of the report of the Government Analyst with full protocols had not been received by the petitioner company.
The Drugs Inspector, in turn, addressed a letter dated 30.3.1993 to the Drugs Controller cum Director, Medical & Health Services, Jaipur and sought instructions as to whether the test report along with the full protocols could be supplied to the company or not. The Director, Medical & Health Services, in turn, by the letter dated 12.4.1994, instructed the Drugs Inspector to proceed against the accused as per law.
Thereafter a complaint for the offences under the S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 4 Drugs and Cosmetics Act was filed on 05.12.1994 in the Court of the learned Chief Judicial Magistrate, Dungarpur.
The petitioner company and its Directors were summoned and upon their appearance in the court, pre-charge evidence was recorded. Thereafter the learned trial Court, by order dated 24.4.2007, has directed framing of the charges against the petitioner No.1 being the company and the petitioners No.2 to 4 being the representatives of the petitioner No.1 company and also against the other persons against whom the complaint was filed.
The instant miscellaneous petition has been filed seeking quashing of the charges and all the subsequent proceedings sought to be taken against the petitioners.
Mr. Vikas Balia, learned counsel for the petitioners has submitted that as per Section 25 (4) of the Act, the petitioners have a statutory right to challenge the report of the Government Analyst by intimating to the Drug Inspector their intention to adduce evidence in contradiction of the report of the Government Analyst by making request in this regard within a period of 28 days from the date of receipt of the intimation about the report of the Government Analyst. He submits that the expiry date of the drug was July 1992 and the intimation regarding the sample having been found sub-standard was given to the petitioner company by the Drugs Inspector just about a month before the expiry date. Thus, hardly any time was made available to the petitioner company for taking steps to have the second sample sent for analysis to the Central Drugs Laboratory, Kolkata. It is submitted that despite this adversity of paucity of S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 5 time, the petitioner company within the mandatory period of twenty-eight days, as prescribed under Section 25 (3) of the Act, intimated the Drugs Inspector regarding its intention that it desired to challenge the report of the Government Analyst by having the sample of the seized drug analysed by the Central Drugs Laboratory. The Drugs Inspector deliberately kept sleeping over the application of the petitioner company despite having received the intimation within the mandatory period of 28 days.
Thus, it is submitted that the petitioner company has been deprived of its statutory right guaranteed under Section 25 (4) of the Act to challenge the report of the Government Analyst by having the second sample of the seized drug analysed by the Central Drugs Laboratory and thereby the further prosecution of the petitioners in this case is impermissible. Accordingly, it is prayed that the charges framed against the petitioners as well as their proposed prosecution cannot be continued and the same deserves to be quashed. Reliance in support of the arguments has been placed on a decision of this Court in the case of Nikson Pharmaceuticals (M/s.) & ors. Vs. State of Rajasthan & ors., 2008 (1) Cr.L.R. (Raj.) 235) and on a decision of the Hon'ble Apex Court in the case of State of Haryana Vs. Brij Lal Mittal, AIR 1998 SC 2327.
A reply to the miscellaneous petition has been filed by the Drugs Inspector, wherein the following facts have been mentioned:-
"(2) That the sample collected was found to be not of standard quality by the Government Analyst, CIPL, Gaziabad (U.P.) vide its report No. S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 6 RIPL/6008/2003 dated 24.2.1992. As defined in the Drugs & Cosmetic Act 1940 and Rules thereunder for the reasons given below:-
"The sample does not comply with the requirement of IP in respect of Test of Sterility."
(3) That thereafter Shri K. Jaiwant, the Drug Inspector, Head Quarter, Pali, who was also holding the charge of district Dungapur, sent the copy of the analyst under Section 25 (2) of the Act to M/s. Jawahar Medical Store, Dungarpur and called for the information with regards to purchases etc. under Section 18 (A) of the Act. (4)That the Drug Controller cum Director, Medical and Head Services, sent telegraphic message on 20.03.1992 to Drug Controllor, U.P. State, Lucknow to conduct enquiry against m\M/s. Albert David Ltd. and copy thereof was given to Drug Inspector, Banswara for seizing the stock of said drug.
(8)That while sending copy of invoice made available by M/s. H.A. Pharma Distributors, Sagwara showing purchase from M/s. Albert David Ltd., the Drug Inspector called for the explanation/reply from M/s. Albert David Ltd., New Delhi vide his letter dated 25.05.1992. (9)That on 18.06.1992 Shri R.K. Golcha, Regional Sales Manager for M/s Albert David Ltd., New Delhi submitted reply to the letter dated 25.05.1992 and informed that they were not concurred with the report of Public Analyst and wanted to submit the evidence etc. It is relevant to submit here that the manufacturing firm was knowing that the drug was to expire in June, 1992, deliberately did not make request to the court for examination by the Central Drug Laboratory nor deposited the requisite fees and waited for expiry of sample and then sent the above letter."
Ultimately, it has been prayed in the reply that the complaint filed against the petitioners is not liable to be quashed in this case.
Learned Public Prosecutor, rebutted the arguments advanced on behalf of the petitioners and submits that in this S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 7 case the drug sample was already analyzed by the Central Drugs Laboratory, i.e. the CIPL and, thus, there was no requirement of any intimation to be sent to the person, from whom the sample was taken or to the manufacturer because once the sample has already been examined by the Central Drugs Laboratory, then there is no further requirement of any further examination of the said sample as per Section 25 (4) of the Act; thus, it has been submitted that the proceedings in this case are not liable to be quashed on the ground that accused have been deprived of their right to challenge the report of the Analyst.
In the alternative, he submits that no prejudice has been caused to the petitioners in this matter because the accused, upon receiving of the notice of the Drugs Inspector dated 25.5.2005, did not make a request to the concerned Court for sending the second sample of the seized drug for analysis by the Central Drugs Laboratory. Thus, it is submitted that the miscellaneous petition is absolutely without any force and should be rejected.
For a consideration of the arguments advanced at the bar and for a proper appreciation of the issue raised before this Court, the consideration of the relevant provisions of the Act and the Rules is necessary. Section 23 of the Act prescribes the procedure for inspector for taking samples of the drugs or cosmetic. Section 23 of the Act reads as below:-
Section 23 - Procedure of Inspectors (1) Where an Inspector takes any sample of a drug1[or cosmetic] under this Chapter, he shall tender the fair price thereof and may require a written acknowledgement therefor.
S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 8 (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 therefor 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 2[(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 S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 9 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."
Thus, on a consideration of Section 23 (4) of the Act, it is apparent that subsequent to taking of the samples, the Drugs Inspector has to send one portion of the samples to the Government Analyst for test or analysis and as per Section 23 (2) & (4), the Drugs Inspector has to produce the second sample in the Court, where the proceedings are instituted and the third sample has to be sent to the person from whom the samples were taken or to the person whose name, address and other particulars have been disclosed under Section 18-A of the Act.
Section 18-A of the Act reads as below:-
Section 18A - Disclosure of the name of the manufacturer, etc. S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 10 [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] Section 25 of the Act reads as below:-
"Section 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 subsection (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 18-A], 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 18-A] 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 subsection (4) of Section 23 to be sent for test or analysis to the said Laboratory, which shall make S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 11 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 subsection (4) shall be paid by the complainant or accused as the Court shall direct.
A reading of the aforesaid provisions would reveal that apart from proving certain safeguards to the person from whom the drug sample has been taken or the manufacturer thereof, they lay certain obligations upon the seizing authority. Section 25(3) specifies that unless such a person controverts the correctness of the report submitted by the Government Analyst under Section 25 (1) within 28 days by intimating to the Drugs Inspector in writing that he intends to adduce evidence to controvert the report of the Analyst, it would be deemed to be conclusive evidence of the quality of the drugs. Sub-section (4) of Section 25 obliges the Magistrate on the request of the complainant or the accused or on in his own motion to send the fourth sample for fresh testing to the Director of the Central Drugs Laboratory. In the event of the report of the Government Analyst being disputed by an intimation in writing communicated to the Drugs Inspector within the period of 28 days. As per Section 25 (4) of the Act, the persons from whom the sample has been taken as well as the person whose name has been disclosed under Section 18-A (i.e. the manufacturer) have to be intimated about the result of analysis conducted by the Government Analyst under Section 25 (1) of the Act.
S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 12 Thus, in a case wherein the sample of the drug has already not been examined by the Central Drugs Laboratory, every person referred to in Sub-section (3) of Section 25 of the Act, who can either be a person from whom the samples had been taken or the person whose name has been disclosed under Section 18-A of the Act, has a right to intimate his/its intention to the Drugs Inspector or the Court before which a complaint in respect of drug has been filed that he desires to adduce evidence in contravention of the report of the Government Analyst. Where such person intimates his intention to adduce evidence in contravention of the report of the Government Analysis, as per Sub-section (4) of Section 25, the sample of the drug has to be sent to the Director, Central Drugs Laboratory for analysis and thereafter the drug has to be analysed at the Central Drugs Laboratory and the analysis report has to be signed by or under the authority of the Director of the Central Drugs Laboratory.
The Central Drugs Laboratory has been defined in Section 6 of the Act, which reads as below:-
"Section 6.- (1) The Central Government shall, as soon as may be, establish a Central Drugs Laboratory under the control of a Director to be appointed by the Central Government, to carry out the functions entrusted to it by this Act or any rules made under this Chapter.
Provided that, if the Central Government so prescribes, the functions of the Central Drugs Laboratory in respect of any drug or class of drugs or cosmetic or class of cosmetics shall be carried out at the Central Research Institute, Kasauli, or at any other prescribed Laboratory and the functions of the Director of the Central Drugs Laboratory in respect of such drug or class of drugs or such cosmetic or class of cosmetics shall be exercised by the Director or that institute or of S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 13 that other Laboratory, as the case may be.
(2)The Central Government may, after consultation with the Board, make rules prescribing-
(a) the functions of the Central Drugs Laboratory;
(d)the procedure for the submission of the said Laboratory under Chapter IV or Chapter IVA of samples of drugs or cosmetics for analysis or test, the forms of the Laboratory's reports thereon and the fees payable in respect of such reports;
(e) such other matters as may be necessary or expedient to enable the said Laboratory to carry out its functions;
(f) the matters necessary to be prescribed for the purposes of the proviso to sub-section (1)."
Various Central Drugs Laboratories which have been established by the Government of India are mentioned in rules 3 to 8 of the Drugs and Cosmetics Rules, 1945 (for short, "the Rules of 1945). Upon a careful perusal of the rules 3 to 8 of the Rules of 1945, it becomes apparent that the CIPL is not mentioned as a Central Drugs Laboratory either in the Act or in the Rules of 1945. Further more, even in the reply submitted by the Drugs Inspector, it has not been claimed that the CIPL is a Central Drugs Laboratory.
The report of the Central Drugs Laboratory, under Section 25 (4) of the Act, is required to be issued by the Director or under the authority of the Director of the Central Drugs Laboratory. As has been observed above, the report, which the prosecution has placed on record in this case is a report issued by and under the signatures of the Government S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 14 Analyst of CIPL, Gaziabad (U.P.). The report has been signed by the Government Analyst and on the top of the report, it has been mentioned that a report is issued under Section 25 (1) of the Act.
Thus, it can safely be concluded that the report, which is relied upon by the prosecution in this case, is not a report issued by the Director of the Central Drugs Laboratory under Section 25 (4) of the Act. Therefore, the argument advanced by the learned Public Prosecutor that in this case the examination of the sample of drug has already been conducted by the Central Drugs Laboratory, is not acceptable.
Now coming to the contention regarding the petitioners having been deprived of their right the deprivation of the right to challenge the report of the Government Analyst by having the second sample analysed by the Central Drugs Laboratory, the undisputed facts available on record are that:-
(i) the drug sample was taken on 19.11.1990;
(ii) the Drugs Inspector was admittedly aware about the expiry date of the drug which was July 1992;
(iii) Undisputedly, the Drugs Inspector came to know about the details of manufacturer (i.e. the petitioner company) latest by the month of March, 1992 regarding the drug having been manufactured by the petitioner No. 1. There exists on record a copy of a telegram sent on 20.3.1992 by the Drugs Controller, Rajasthan to the Drugs Controller, Uttar Pradesh, as per which it has been intimated to the Drugs Controller, Uttar Pradesh S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 15 that the sample of the medicine manufactured by the petitioner company had failed in the test of sterility;
(iv) If the intimation about the testing report could be sent to the Drugs Controller, Uttar Pradesh in the month of March, 1992, then there was no difficulty for the Drugs Inspector to have sent the same intimation to the petitioner company simultaneously so that it could be intimated, as per Section 25 (2) of the Act, about the drug having been found to be sub-standard on analysis.
(Though it may be mentioned that even when the sample was taken on 19.11.1990, the name of the manufacturer was very much available to the Drugs Inspector as mentioned on the packing of the drug);
(v) it is, also, not in dispute that for the first time the intimation regarding the drug sample having been found to be sub-standard was given to the petitioner company by the letter dated 25.5.1992. The said letter was sent by registered post to the petitioners from the Post Office at Pali and the seal of the post office on the registry-slip bears the date 26.5.1992. The petitioner company claims to have received the said letter on 28.5.1992, which can be considered to be correct because the consumption of a time period of two days in the registered letter posted from Pali being received at Uttar Pradesh S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 16 can be considered to be reasonably possible;
(vi) The petitioners intimated the Drugs Inspector their intention to challenge the report of the Government Analyst by their letter dated 18.6.1992. The letter is available on record and bears the seal of the post office at Uttar Pradesh dated 18.6.1992. This intimation was admittedly received by the Drugs Inspector within the prescribed period of 28 days as required under Section 25 (3) of the Act.
In this backdrop of the matter, now the question for consideration before this Court would be: whether the petitioners were provided an adequate opportunity of taking steps as per Section 25 (3) and (4) of the Act to challenge the report of the Government Analyst for having the same analyzed by the Central Drugs Laboratory.
The intimation regarding the sample having been found to be sub-standard was sent to the petitioner company just about one month prior to the date when the sample was about to expire. The petitioner company, within the requisite period of twenty-eight days, as prescribed under Section 25 (3) of the Act, intimated to the Drugs Inspector its intention to challenge the report of the Government Analyst but the Drugs Inspector did not take any action on the said request of the petitioner company. When the intimation was given to the petitioner company, hardly any time was left in the expiry date of the drug so as to take appropriate and effective steps for S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 17 challenging the report of the Government Analyst in this matter. The Hon'ble Apex Court, had an occasion to deal with almost an identical situation in the case of M/s. Medicamen Biotech Ltd. & Anr. Vs. Rubina Bose, Drug Inspector, AIR 2008 SC 1939 and held as below:-
8. It is, therefore, evident that the appellant had not once but on at least two occasions and within 28 days of the receipt of the show cause notice clarified that it intended to adduce evidence to show that the test report of the Government Analyst was not correct. The judgments cited by the learned counsel for the respondent, therefore, do not apply to the facts of the case as they were given in the context where the dealer/manufacturer had not expressed its desire to challenge the veracity of the report of the Drugs Analyst. In Brij Lal Mittal's case (supra) this Court held that a person could not claim that the fourth sample should be sent to the Central Drugs Laboratory unless the requirements of sub-section (3) of Section 25 was complied with. In that case, despite the service of the copies of the Analyst report the manufacturer had not informed the Inspector within the prescribed period that he intended to adduce evidence to controvert the report. It was held in Brij Lal Mittal's case (supra) :
"From a bare perusal of sub-section(3) it is manifest that the report of the Government Analyst 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 or other particulars have been disclosed under Section 18- A (in this case the manufacturers) has within 28 days of the receipt 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. Sub-section (4) also makes it abundantly clear that the right to get the sample tested by the Central Government Laboratory (so as to make Its report override the report of the Analyst) through the court accrues to a person accused in the case only if he had earlier notified in accordance with sub-section (3) his Intention of adducing evidence in controversion of S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 18 the report of the Government Analyst. To put it differently, unless requirement of sub-section (3) is complied with by the person concerned he cannot avail of his right under sub-section (4)."
9. In Unique Farmaids's case (supra) which was a case under the Insecticides Act which has provisions analogous to Section 25(4) of the Act, the court found that the accused had indeed made a request to the Inspector for sending the sample for re-testing within the prescribed time limit and as this request had not been accepted an important right given to an accused had been rendered ineffective on which the proceedings could be quashed. This is what the Court had to say :
"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 Insecticides 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 Insecticides Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the Court, the shelf- 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.
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."
10. We find that this Judgment helps the case of S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 19 the appellant rather than that of the respondent because in spite of two communications from the appellant that it intended to adduce evidence to controvert the facts given in the report of the Government Analyst, the fourth sample with the Magistrate had not been sent for re-analysis. The observations in Amery Pharmaceuticals's case (supra) are also to the same effect. We find that the aforesaid interpretation supports the case of the appellants inasmuch they had been deprived of the right to have the fourth sample tested from the Central Drugs Laboratory. (It is also clear that the complaint had been filed on the 2nd July 2002 which is about a month short of the expiry date of the drug and as such had the accused-appellant appeared before the Magistrate even on 2nd July 2002 it would have been well nigh impossible to get the sample tested before its expiry. In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred as the appellant had avoided service of summons on it till 9th May 2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf-life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the; notices which were to be issued by the Court after the complaint had been filed. Likewise, we observe that the requests for re-testing of the drug had been made by the appellant in August/September 2001 as would be clear from the facts already given above and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for re-testing well within time. We are, therefore, of the opinion that the facts of the case suggest that the appellants have been deprived of a valuable right under Sections 25(3) and 25(4) of the Act which must necessitate the quashing of the proceedings against them.
In that case the complaint was filed one month before expiry of shelf-life of the drug, but in the instant case the complaint has been filed on 15.12.1994, i.e. after more than 2 ½ years of the expiry date of the drug. There was no reason as to why the Drugs Inspector did not intimate the petitioner S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 20 company well in time so that the action, as warranted under Section 25 (4) of the Act could be taken before the expiry date of the drug. Thus, there has been an inordinate delay in sending the intimation about the report of the Government Analyst to the petitioner company and by the time when the report was sent, virtually the expiry date of the drug had arrived.
Despite the adversing of shortage of time, petitioner company did intimate the Drugs Inspector about its intention to challenge the report of the Government Analyst by having the second sample analysed by the Central Drugs Laboratory. The Drugs Inspector did not take any action on the said request, rather the Drugs Inspector waited for a further period of nearly two and half years before filing the complaint in this matter.
The only logical conclusion which can be derived from the above discussion is that the petitioners' right to challenge the report of the Government Analyst has been frustrated because of the inordinate and unjustified delay in sending the intimation to the petitioners under Section 25 (2) of the Act which was caused by the Drugs Inspector in this case.
The upshot of the above discussion is that the instant miscellaneous petition succeeds. The charges and the criminal proceedings to the extent of the petitioners in Criminal Case No. 728/1994 pending in the Court of the learned Chief Judicial Magistrate, Dungarpur, qua the petitioners, are hereby quashed. The stay petition stands disposed of.
This Court has been coming across numerous matters wherein in the prosecutions involving the offences and violations of law affecting the health and life of public at large, S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 21 like the offences under the Prevention of Food Adulteration Act, Drugs and Cosmetic Act, Essential Commodities Act, Insecticides Act and Seeds Act, N.D.P.S. Act etc., the accused escape the clutches of law because of deliberate non-compliance of the technical provisions and safeguards prescribed in the Acts, viz., in in the present case, this Court is being led to quash the prosecution against the manufacturers of the medicinal preparation just because of unjustified delay committed by the Drugs Inspector in sending the mandatory intimation under Section 25 (2) of the Drugs and Cosmetics Act to the manufacturing company. The endeavour of the concerned authorities should be to see that the manufacturers/ all the responsible persons are brought to book by proceeding expeditiously, but sadly enough, the prosecutions are deliberately left ridden with loop-holes so that the manufacturers or the big fish escape the clutches of law taking resort to the technical flaws. This Court feels that the possibility of such loop- holes being deliberately left so that the big fish may go scot-free cannot be ruled out. Obviously, the objective behind such an approach can either be due to negligence or can be aimed at achieving some gain. In any event, in order to prevent such wrong-doings on the part of the concerned officials in future and to see that the erring officials are brought to book, a direction is hereby issued to all the lower courts in the State of Rajasthan that whenever such inaction resulting into the prosecution being stifled because of technical irregularities committed by the concerned officials, caused to notice, the Court shall, after giving an opportunity to show cause to the concerned official, proceed S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 22 to report the matter to the Disciplinary Authority of such official under rule 66 of the Criminal (General) Rules, 1980, which reads as under:-
"Rule 66. District Magistrate and Inspector General of Police to be informed of police errors.- When in any case of which a Court has taken cognizance, the Presiding Officer occasion to notice any erroneous practice on the part of the police or has reason to believe that a confession has been elicited by the police from an accused persons by the use of force or undue influence, or that any other grave irregularity has occurred, he shall bring the matter to the notice of the District Magistrate concerned or Inspector General of Police. It shall be incumbent on the authority so informed to apprise the Presiding Officer concerned of the action taken by it in the matter."
It is hereby clarified that though rule 66 of the Criminal (General) Rules, 1980 has a limited operation inasmuch as the same has a limited application to the extent of the irregularities committed by a police officer, but the objective of the aforesaid rule is to see that whenever irregularities have occurred in the investigation and have been noticed by a court trying such a case, then the Disciplinary Authority should be intimated about the irregularities committed by the incumbent officer. In this view of the matter, this Court has no hesitation in holding that a proper interpretation of rule 66 leads to an irrefutable conclusion that the said rule applies any investigating/enquiry officer whose conduct is being examined by a court concerned. The words "any other grave irregularity has occurred", as mentioned in the rule, can very well be interpreted to be covering an irregularity committed even by an officer other than a police officer.
S.B. Criminal Misc. Petition No. 411/2008 (Albert David Ltd. & ors. Vs. State of Rajasthan & Anr.) 23 A copy of this order be sent to the Law Secretary and the Secretary, Medical & Health Department, Government of Rajasthan, Jaipur for information and necessary action. A copy of this order be also sent to all the Sessions Judges in the State of Rajasthan for its circulation to all the subordinate courts for information and compliance.
(SANDEEP MEHTA), J.
mcs