Himachal Pradesh High Court
C.S. Velu vs State Of Himachal Pradesh on 30 May, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No. 68 of 2017.
Date of decision: 30th May, 2017.
C.S. Velu .....Petitioner.
Versus
State of Himachal Pradesh ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No For the Petitioner : Mr. K.D. Sood, Senior Advocate, with Mr. Sanjeev Sood, Advocate.
For the Respondents : Mr. Neeraj K. Sharma, Deputy Advocate General.
Tarlok Singh Chauhan, Judge (Oral).
Whether in absence of any proceedings being pending before the Magistrate, an application under Section 25 (4) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'Act') is maintainable or not is the short question that arises for consideration in this petition filed under Section 482 Cr.P.C.?
2. Section 25 of the Act, reads thus:
25. Reports of Government Analysts. -- (1) The Government 116 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 117 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.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 03/06/2017 00:00:17 :::HCHP 2 (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 118 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:
116cause 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."
3. It is not in dispute that Hindustan Unilever Ltd. whose Factory Manager is the petitioner herein, received a show cause notice on 9.12.2016 from the Drugs Inspector, Shimla wherein it was informed that the sample of 'Sunsilk Shampoo' allegedly manufactured by Hindustan Unilever Ltd. had been declared NSQ i.e. Not of Standard Quality by the Government Analyst as the quantity therein was allegedly less than the one declared and there was also labeling violation.
4. The petitioner submitted a detailed reply and pointed out that only Inspector under the Legal Metrology Act, 2009 could measure the quantity of Shampoo in the sachet and that labeling requirements were in substantial compliance of statute and as such no offence was made out.
According to the petitioner, it had not sought test/reanalysis of the sample ::: Downloaded on - 03/06/2017 00:00:17 :::HCHP 3 from Central Drugs Laboratory (CDL) nor had expressed any intention to controvert the report of Analyst by adducing any evidence and only his .
legal submissions were contained in the reply. However, even in absence of any request and without institution of any complaint as mandated under Section 25(4) (ii) read with Section 25 (4) of the Act, the Drugs Inspector of his own filed an application before the Court for analysis of the sample from CDL, Kolkata which was allowed by learned Magistrate vide his order dated 21.1.2017. r
5. The respondent has filed reply wherein material allegations have not been denied and it is only stated that in the reply filed by the petitioner to the letter dated 9.12.2016, it was stated that they seek to file reply "in controversion of the Government Analyst Report" and, therefore, it became necessary to send the sample to CDL, Kolkata.
I have heard learned counsel for the parties and have gone through the material placed on record.
6. At the outset, I find it intriguing to note that if at all it was the petitioner, who wanted to have the sample tested or re-tested from CDL, Kolkata, then why would the respondent file such an application. However, I do not intend to divert from the main issue i.e. whether in absence of any proceedings being pending before the Magistrate, an application under Section 25 (4) of the Drugs and Cosmetics Act, is maintainable or not?
7. At this stage, it would be noticed that the provisions of Setions 24(3) and 24(4) of the Insecticides Act, 1968 are pari materia with Sections 25(3) and 25(4) of the Drugs and Cosmetics Act and the same read thus:
"24. Report of Insecticide Analyst.-(3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty- eight days of the receipt of a copy of ::: Downloaded on - 03/06/2017 00:00:17 :::HCHP 4 the report notified in writing the Insecticide 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 Insecticides Laboratory, where a person has under
sub-section(3) notified his intention of adducing evidence in controversion of the Insecticide Analyst's report, the court may, of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the Magistrate under sub-section (6) of section 22 to be sent for test or analysis to the said laboratory, {which shall, within a period of thirty days, which shall make the test or analysis} and report in writing signed by, or under the authority of, the Director of the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein."
8. While interpreting the aforesaid provisions of the Insecticides Act, the Hon'ble Supreme Court in Northern Mineral Limited vs. Union of India and another (2010) 7 SCC 726 while dealing with the similar question observed as under:
"23. Section 24(3) of the Act gives right to the accused to rebut the conclusive nature of the evidence of Insecticide Analyst by notifying its intention to adduce evidence in controversion of the report before the Insecticide Inspector or before Court where proceeding in respect of the samples is pending. Further the Court has been given power to send the sample for analysis and test by the Central Insecticides Laboratory of its own motion or at the request of the complainant or the accused.
24. No proceeding was pending before any Court, when the accused was served with Insecticide Analyst report, the intention was necessarily required to be conveyed to the Insecticide Inspector, which was so done by the appellant and in this background Insecticide Inspector was obliged to institute complaint forthwith and produce sample and request the court to send the sample for analysis and test to the Central Insecticides Laboratory.::: Downloaded on - 03/06/2017 00:00:17 :::HCHP 5
Appellant did whatever was possible for it. Its right has been defeated by not sending the sample for analysis and report to .
Central Insecticides Laboratory."
9. Even otherwise a careful reading of Section 25(4) of the Act would make it evidently clear that as per this provision, a valuable right accrues in favour of the manufacturer to seek re-analysis of the sample from the Central Drugs Laboratory in case the report of the Laboratory submitted earlier is adverse to him. However, such a request which the manufacturer can seek re-analysis of the sample is only after the complaint is filed because such request can be made by the manufacturer only to the Court for re-analysis of the sample.
10. While in the present case, it would be noticed that the respondent through Drugs Inspector of his own filed an application for re-
analysis, that too, when even the earlier report by CTL, Kandaghat was already in its favour.
11. What is more intriguing is the manner in which the learned Magistrate has dealt with the application so filed by the respondent under Section 25(4) and the relevant portion thereof reads thus:
"As per the Drug Inspector, present before the court, the sample was drawn on 29.10.2015. It was sent to CTL, Kandaghat, from where, the incriminating report was prepared on 12.01.2017. This was received by the Drug inspector. Thereafter, the Drug Inspector sent the intimation of CTL report dated 08.12.2016 to the company on 06.09.2016 but the same was only received by the Drug Inspector on 23.09.2016. The court is satisfied that the Drug Inspector has acted promptly. The sample produced before the court is alleged to be going to expire in 07.04.2017. It is going to consume time to send the sample to Kolkata and it will take further more time for the analysis of the sample. In such circumstances, in order to prevent the sample from expiring ::: Downloaded on - 03/06/2017 00:00:17 :::HCHP 6 before its examination/analysis at KYD Street, Kolkata, this court is of the considered view that the notice of present .
application to the respondent firm must be dispensed.
The sample produced before the court is identified by Sh. Dinesh Sharma, who deposed that the same sample Ext.PX was seized from him by the Drug Inspector. The identity of sample is therefore not in dispute and also the statement of owner of the shop is recorded separately."
12. Evidently, the learned Magistrate has failed to take into consideration that there was no proceedings whatsoever pending before him and there was virtually no occasion for the respondent to have sought re-analysis of the sample, more particularly, when the earlier report was already in its favour.
13. Having said so, order dated 21.01.2017 passed by learned Civil Judge (Jr. Division)-cum-JMIC (7), Shimla alongwith memorandum to the Central Drugs Laboratory, Kolkata dated 21.01.2017 is quashed and set-aside. Though, a prayer has also been made for quashing of consequential proceedings, however, I find no such proceedings to be pending before the Magistrate and, therefore, no occasion for quashing the same arises at this stage.
The petition is disposed of in the aforesaid terms, so also the pending application(s) if any.
May 30, 2017. (Tarlok Singh Chauhan),
(GR) Judge
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