Jharkhand High Court
Krishna Mohan Prasad vs The State Of Jharkhand And Anr on 22 December, 2014
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 2314 of 2014
Krishna Mohan Prasad ... Petitioner
Versus
1. The State of Jharkhand
2. Drug Inspector, Bokaro, PMCH Campus, Dhanbad
... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Deepak Kumar Prasad
For the State : A. P. P.
For the O.P. No. 2
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Order No. 05 Dated 22th December , 2014
Heard the learned counsel for the petitioner and the learned
counsel for the State.
In the present criminal miscellaneous petition, the petitioner has
prayed for quashing the entire criminal proceeding as well as the order
taking cognizance dated 2.6.2014 passed by the learned Chief Judicial
Magistrate, Bokaro in connection with C-2 (Drugs & Cosmetics Act) Case
No. 38 of 2014, whereby and whereunder, cognizance for the offence
punishable u/s 27(d) of the Drugs & Cosmetics Act, 1940 has been taken.
The prosecution story in brief is that the medicine Pertenol-25 mg
procured form Bokaro Civil Surgeon Medicine Store was found to be of
sub standard quality due to "disintegration" vide report dated 22.12.2008.
It has also been alleged that on 19.12.2005 the sample of the aforesaid
tablet was taken in which the date of manufacturing was mentioned as
7/2004 whereas the date of expiry was mentioned as 12/2008 and the
same was manufactured by M/s. Kanataka Antibiotic & Pharmaceutical
Ltd., Plot No. 14, Phase-II, Peenya, Bangalore-560058. The report of
Government Analyst dated 22.12.2008 has stated that the said medicine
was found to be of a low quality in view of the reasons assigned in the
report.
Learned counsel for the petitioner has submitted that the sample of
tablet Pertenol-25 mg was taken on 19.12.2005 and the report of the
Government Analyst was dated 22.12.2008 whereas the present
complaint has been instituted after an inordinate delay on 30.5.2013 and
no reasons had been assigned therein to explain the cause of delay. He
has further submitted that the provision of Section 25 of the Drugs &
Cosmetics Act was not complied with inasmuch as the date of expiry of
the medicine/ tablet mentioned was December, 2008, whereas the report
of the Government Analyst was issued on 3.2.2009, which
was communicated to M/s. Karnataka Antibiotic & Pharmaceutical Ltd. on
29.10.2009as such the opportunity to the petitioner in terms of section 25(3) of the Drugs & Cosmetics Act was not given and also the statutory provision as envisaged therein was not complied with. Therefore, the 2. present complaint case is liable to be quashed.
Learned counsel for the State on the other hand has supported the impugned order and submitted that the Government Analyst had found the tablet Pertenol to be of a sub standard quality and the complaint, was filed with a prayer to condone the delay in filing of the complaint and if at all the petitioner is aggrieved, he is at liberty to raise his grievances before the learned trial court at the appropriate stage.
After hearing the counsel for the parties and after perusing the records, I find that the tablet Pertenol-25 mg which was taken from the medicine store of Civil Surgeon, Bokaro disclosed that the date of manufacturing of the tablet was 7/2004 whereas the expiry date was 12/2008 and the sample which was taken on 19.12.2005 culminated in submission of a report dated 22.12.2008/ 3.2.2009 by the Government Analyst and thereafter on 30.5.2013 the complaint had been instituted. Section 25 of the Drugs & Cosmetics Act, 1940 reads as under:-
"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.
(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 report of a copy of the 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, if 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 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."
A perusal of sub section 4 reveals that the report from the Central Drugs Laboratory shall be a conclusive evidence where a person has under sub section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report. In the case of 3. Medicamen Biotech Ltd. & another v. Rubina Bose, Drug Inspector reported in (2008) 7 SCC 196 it had been observed with respect to the provisions of Section 25(3) and 25(4) of the Act as follows:-
"A reading of the aforesaid provisions would reveal that they lay certain obligations as well as provide safeguards for a person from whom a drug has been seized for analysis or testing as Section 25(3) specifies that unless such a person controverts the correctness of the report submitted by the Government Analyst within 28 days 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 drug whereas sub-section (4) of Section 25 obliges the Magistrate on the request of the complainant or the accused or on his own motion to send the fourth sample which has been disputed for fresh testing to the Director of the Central Drugs Laboratory."
The aforesaid judgment had also been followed in the case of M/s. Karnataka Antibiotic & Pharmaceuticals Limited v. State of Jharkhand in Cr.M.P. No. 1321 of 2011 in which this Court vide order dated 17.1.2014 had quashed the entire criminal proceedings in view of the fact that the statutory requirements u/s 25(3) and 25(4) of the Act was not fulfilled. In the present case also Section 25(4) of the Act was frustrated inasmuch as the report of the Government Analyst was submitted after the expiry date mentioned in the tablet Pertenol i.e. after December, 2008 which prevented the petitioner from exercising his right as envisaged under Section 25(3) of the Drugs and Cosmetics Act, 1940 in controverting the said report and as such the requirements under sub section(s) (3) and (4) of Section 25 of the Act having been frustrated, continuation of the present criminal proceeding against the petitioner would be an abuse of process of court.
Considering the aforesaid facts and circumstance, this criminal miscellaneous petition is allowed and the the entire criminal proceeding as well as the order taking cognizance dated 2.6.2014 passed by the learned Chief Judicial Magistrate, Bokaro in connection with C-2 (Drugs & Cosmetics Act) Case No. 38 of 2014, whereby and whereunder, cognizance for the offence punishable u/s 27(d) of the Drugs & Cosmetics Act, 1940 has been taken, is quashed.
(RONGON MUKHOPADHYAY, J.) MK