Supreme Court - Daily Orders
M/S Brawn Laboratories Ltd. vs State Of Jammu & Kashmir on 10 April, 2017
Bench: Ranjan Gogoi, Navin Sinha
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ITEM NO.49 COURT NO.4 SECTION IIC
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRL.) NO(S). 7699/2016
(ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 12/05/2016
IN QP BEARING 561-A NO. 198/2014 PASSED BY THE HIGH COURT OF J & K
AT JAMMU)
M/S BRAWN LABORATORIES LTD. PETITIONER(S)
VERSUS
STATE OF JAMMU & KASHMIR RESPONDENT(S)
(WITH INTERIM RELIEF AND OFFICE REPORT)
Date : 10/04/2017 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE NAVIN SINHA
For Petitioner(s) Mr. Sushant Mohapatra, Adv.
Mr. A. Poddar, Adv.
Mr. Deepak Goel, Adv.
For Respondent(s) Mr. M. Shoeb Alam, Adv.
Ms. Fauzia Shakil, Adv.
Mr. Ujjwal Singh, Adv.
Mr. Mojahid Karim Khan, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
[VINOD LAKHINA] [ASHA SONI]
COURT MASTER COURT MASTER
Signature Not Verified
[SIGNED ORDER IS PLACED ON THE FILE] Digitally signed by VINOD LAKHINA Date: 2017.04.11 16:43:41 IST Reason: 1 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.674 OF 2017 [Arising out of Special Leave Petition (Criminal) No.7699/2016] M/S BRAWN LABORATORIES LTD. ...APPELLANT VERSUS STATE OF JAMMU & KASHMIR ...RESPONDENT ORDER
1. Leave granted.
2. The challenge in this appeal is against the order of the High Court of Jammu & Kashmir dated 12th May, 2016 by which the High Court refused to interdict the proceedings instituted against the accused appellant under Section 18(a)(i) read with Section 27 of the Drugs and Cosmetic Act, 1940 (hereinafter referred to as “the 1940 Act”).
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3. We have taken note of the relevant facts and the report of the Government Analyst i.e. CFDL, Patoli, Jammu dated 31st July, 2009 that the sample (offending drug) was not of standard quality. Even if it is assumed that the said report was forwarded to the appellant on 4th February, 2010, as asserted and claimed, we have on record a letter in reply of the appellant dated 27th February, 2010 which disputes the correctness of the report of the Government Analyst. In the letter dated 27th February, 2010 the appellant has stated that it had got the drug analysed on its own and the report of such analysis is to the effect that the drug is of standard quality. In the said letter dated 27th February, 2010 it has been specifically stated that: 3
“the result obtained after investigation of the finished product was found to be around 97.35% and same was attached for your reference along with all the calculation sheet and chromatogram.” In the said letter it has further pointed out that:
“During the investigation we also noticed that the analytical method followed by Govt.
analyst at CFDL was
potentionmetric which was
adopted only for pure raw
material testing and this method is not suitable for finished product. By using potentionmetric method for finished product the interference by the excipients will not be properly considered and hence the finished product result will not meet expectation”.
Accordingly a request was made to reconsider the issue and to follow analytical method sent along with the letter dated 27th February, 2010. 4
4. The above apart, from the order of the learned Chief Judicial Magistrate, Jammu dated 14th September, 2010 it appears that the Drug Inspector had filed an application in the Court seeking orders for analysis of the seized drug by the Central Drugs Laboratory, Calcutta in terms of Section 25(4) of the 1940 Act and that the Drug Inspector had furnished a demand draft of Rs.500/- as fee for testing the drug by the Central Drugs Laboratory, Calcutta. Once again, from the order of the learned Chief Judicial Magistrate, Jammu dated 26th March, 2011, it appears that till 26th March, 2011 the report of the Central Drugs Laboratory, Calcutta was not received and the case was fixed on 7 th May, 2011. In the order dated 7th May, 2011 passed by the learned Chief Judicial Magistrate, Jammu it has been recorded that the sample of the drug in question was not received by the 5 Central Drugs Laboratory, Calcutta and hence the demand draft of Rs.500/- has been sent back to the Court for appropriate action.
5. It is in these facts that the appellant had contended before the High Court that the provisions of Section 25(4) of the 1940 Act have not been adhered to for reanalysing the drug by the Central Drugs Laboratory, Calcutta and that on account of the sample being lost/misplaced no criminal liability can be attributed to the appellant.
6. We do not see how in the aforesaid facts the High Court could have left the matter to be decided in the trial.
Compliance with the requirement under Section 25(4) of the 1940 Act had been made by the appellant by addressing the letter dated 27th February, 2010. From the order 6 of the learned Chief Judicial Magistrate, Jammu dated 7th May, 2011 it is clear and evident that the sample had not been received by the Central Drugs Laboratory, Calcutta. In these circumstances one can reasonably understand that the valuable right of reanalysis vested in the appellant under Section 25(4) of the 1940 Act has been denied to him and the prosecution on the materials available was bound to be a lame prosecution. The High Court, therefore, ought to have quashed the proceedings. The same not having been done, we are of the view that the present is a fit case where we ought to interfere and quash the criminal proceedings against the appellant. We order accordingly.
7. Consequently and in the light of the above, the appeal is allowed; the order of the High Court is set aside and the 7 proceedings initiated by the Chief Judicial Magistrate in File No.50, titled as “State through Drug Inspector Vs. Magnus Enterprises & Anr.” are quashed.
....................,J.
(RANJAN GOGOI) ...................,J.
(NAVIN SINHA) NEW DELHI APRIL 10, 2017