Bangalore District Court
Bengaluru Circle-3 vs Patch-5 on 4 May, 2022
0 Crl.A.No.452/2016
1 Crl.A.No.452/2016
KABC010087522016
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 4th day of May, 2022
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.452/2016
Accused/ State by The Drugs Inspector,
Appellant : Bengaluru Circle-3, Drugs
Control Department, Bengaluru.
(by Sri.P.R., Advocate)
-V/S-
Complainants/ 1. M/s.Tidal Laporatories Pvt. Ltd.,
Respondents: Patch-5, Phase-11, Gowalthi,
Dist.Bilaspur-174201 (H.P.) India.
2. Anantharam Balasubramanian,
Director,
M/s.Tidal Laporatories Pvt. Ltd.,
Patch-5, Phase-11, Gowalthi,
Dist.Bilaspur-174201 (H.P.) India.
R/at: F-3, Krihnan, Apartment-
25th Avenue, Basantnagar,
Chennai.
3. Kulabushan Sharma,
Manufacturing Chemist,
M/s.Tidal Laporatories Pvt. Ltd.,
Patch-5, Phase-11, Gowalthi,
Dist.Bilaspur-174201 (H.P.) India.
2 Crl.A.No.452/2016
4. Praveen Kumar Munnar,
Technical Staff for Analysis,
M/s.Tidal Laporatories Pvt. Ltd.,
Patch-5, Phase-11, Gowalthi,
Dist.Bilaspur-174201 (H.P.) India.
(By Sri.S.D.R., Advocate)
JUDGMENT
The appellant has filed the present appeal u/Sec.378(1)(a) of Cr.P.C. praying to set aside the judgment dated 05.12.2015 passed by learned Special Court for Economic Offences, Bengaluru, in CC.No.25/2012 acquitting the accused for the offence punishable u/Sec.27(d) of the Drugs and Cosmetic Act, 1940 and praying to convict them for the said offence.
2. The appellant of this appeal was the complainant before the Trial Court. The respondent No.1 to 4 of this appeal were the accused No.1 to 4 before the Trial court. The rank of the parties to this appeal will be hereinafter referred to with the same rank as assigned to them before the trial court for the sake of convenience.
3. The brief facts which leads to file this appeal in nutshell are as follows:
The complainant had filed private complaint u/Sec.200 of Cr.P.C. against the accused No.1 to 4 before the Special Court for Economic Offences, Bengaluru,, by alleging the commission of offence punishable u/Sec.27(d) of the Drugs and Cosmetic Act, 1940. Since the complainant is a Public Servant, the Learned Magistrate was pleased to dispense with recording of sworn statement of the complainant. The Learned Special Judge, Economic Offences, Bengaluru, has took cognizance for the offence punishable u/Sec.27(d) of the Drugs and 3 Crl.A.No.452/2016 Cosmetic Act, 1940 for violation of Sec.18(a) (1) of Drugs and Cosmetic Act and registered criminal case against the accused No.1 to 4 as CC.No.25/2012 and issued summons to accused No.1 to 4. In pursuance of issuance of summons by the Learned Magistrate, the accused No.2 to 4 have appeared before the court through their counsel. The accused No.1 is the company. The accused No.2 to 4 were enlarged on bail.
4. Thereafter the learned magistrate posted the matter for recording the evidence of the complainant. The complainant in order to prove the allegations made in the private complaint had adduced the oral evidence of 6 witnesses as P.W.1 to 6 before the trial court. The complainant has produced 85 documents and got them marked as Ex.P.1 to P.85 and two material objects was marked on behalf of the complainant as M.O.1 and 2 and closed his side. Thereafter, the trial court has posted the matter for recording of statement of the accused u/Sec.313 of Cr.P.C.
5. All the incriminating evidence and circumstances appearing in the evidence of P.W.1 to 6 were read over and explained to the accused in the language known to them. The accused have denied all the incriminating circumstances appearing against them and submitted that they have no defence evidence. Then the matter was posted by the trial court for arguments.
6. The trial court, after hearing the arguments was pleased to post the matter for judgment dated 26.09.2015. On 26.09.2015, the trial court has found that no charge was framed against the accused for the alleged offences. Hence, on 17.10.2014 charge were framed and ready and explained to the accused in the language known to them.
4 Crl.A.No.452/2016The accused pleaded not guilty and claimed to be tried. Since evidence was already recorded, the trial court posted the matter for judgment.
7. The trial court after perusing the oral and documentary evidence adduced on behalf of the complainant, after hearing the arguments and after perusing the other materials on record was pleased to pass judgment on 05.12.2015 by acquitting the accused No.1 to 4 for the offence punishable u/Sec.27(d) of the Drugs and Cosmetic Act, 1940. The complainant being aggrieved by the said judgment of the trial court has preferred this appeal.
8. Grounds of appeal in nutshell as urged in the appeal memorandum are as follows:-
(a) The trial court has not properly considered the provision of Sec.27(d) of the Drugs and Cosmetic Act, 1940 and other rules and regulations connected to the said provision.
(b) The trial court has erred in holding that the sample of the drugs was not drawn in accordance with law.
(c) The trial court is erred in coming to the conclusion that accused No.2 is not responsible for doing the date today business of accused No.1 company.
(d) The trial court has not considered the fact of non-questioning the the report of government analyst stating that the sample drugs is not of standard quality.
(e) The reasons assigned by the trial court for acquitting the accused regarding non-drawing of mahazar at the time of collecting sample and not following the rules at the time of conducting the seizure mahazar are against to the facts and circumstances of the case put 5 Crl.A.No.452/2016 forth by the complainant. Even though the complainant had followed all the prescribed provision u/Sec.22(a)(b) and 22(c) of the Drugs and Cosmetic act at the time of conducting mahazar, the trial court has not considered the said fact.
(f) Even though the complainant has proved his case by adducing proper oral and documentary evidence and even though the guilt of the accused is proved by the said evidence, the trial court is erred in acquitting the accused for the alleged offence on technical grounds. The trial court is erred in disbelieving the case of the complainant.
On these among other grounds stated in the appeal memorandum, the appellant has prayed to set aside the order of the trial court.
9. After filing of the appeal, it is registered as Crl.A.No.452/2016 and notice was issued to the respondents. In pursuance of service of notice, the respondents have appeared through their counsel. Thereafter, the lower court record was called for. After receipt of lower court record, the matter was posted for arguments.
10. Heard the arguments of the Learned counsel for the appellant and respondents. The learned counsel for the appellant and Learned counsel for the respondents have filed their written arguments along with citations. Perused the appeal memorandum, lower court records, written arguments and other materials on record.
11. Having done so, the following points will arise for my consideration:
(1) Whether the appellant proves that the trial
court is erred in acquitting the respondents for
6 Crl.A.No.452/2016
the offence punishable u/Sec.27(d) of the
Drugs and Cosmetic Act, 1940?
(2) Whether the appellant proves that the
interference of this court is required with the
impugned judgment of the trial court?
(3) Whether the appeal filed by the appellant is
deserves to be allowed?
(4) What order?
12. My findings on the above points are as under:
(1) Point No.1 .. In the Negative
(2) Point No.2 .. In the Negative
(3) Point No. 3 .. In the Negative
(2) Point No.4 ..
As per final order
for the following:
REASONS
13. Point No.1 to 3:- These three points are interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts.
14. The complainant had filed private complaint before the trial court u/Sec.200 of Cr.P.C. by alleging the commission of offence u/Sec.27(d) of the Drugs and Cosmetic Act, 1940 for violation of Sec.18(a)(1) of the said act. The Learned Magistrate took cognizance against the accused for the aforesaid offence and registered CC.No.25/2012. The complainant in the private complaint has alleged that Accused No.1 is a manufacturing company M/S Tidal Laboratories Pvt. Ltd., Batch-5, Phase II, Gowalthai, Bilaspur. The accused No.2 is the director and responsible for day today activities of the accused No.1 company. Accused No.3 is the manufacturing chemist and accused No.4 is the Analytical Chemist of accused No.1 company. The 7 Crl.A.No.452/2016 complainant on 07.05.2009 has drawn samples of ROLOSOL Tablets B.No.RLSL-08005, M/S 08/2008, E/D 07/2011, manufactured by accused No.1 at M/S Tidal Laboratories Pvt. Ltd., No.37/12, D 2 nd Floor, Agarwal Arcade, 4th Cross, Lalbag Road, Bengaluru. The drawn samples were divided into four portion, one portion was handed over to one Rathan Chand / C.W.5, Authorized Signatory of the said firm and one sealed portion of drug was sent for test and analysis to Government Analysis under Form No.18 on 07.05.2009, as per provision of Drugs and Cosmetic Act. It is further alleged in the complaint that on 15.09.2009, the complainant had received test report from Government Analysis in Form No.13 along with covering letter declaring sample drugs of ROLOSOL Tablets B.No.RLSL-08005, M/S 08/2008, E/D 07/2011, manufactured by accused No.1 company are "Not of standard quality". It is further alleged in the complaint that accused No.1 is responsible for manufacturing of the aforesaid sub- standard drugs. Accused No.2 is one of the director of the accused No.1 company is responsible for day today activities of the accused No.1 company and he is responsible for manufacturing and sale of not of standard quality drugs. Accused No.3 being the manufacturing chemist of the accused No.1 firm and Accused No.4 being the Technical Staff for Analysis are also responsible for manufacturing the aforesaid sub-standard drug. Hence, it is alleged that all the accused have contravention Sec.18(a)(1) of Drugs and Cosmetic Act punishable u/Sec/27(d) of Drugs and Cosmetic Act.
15. In order to prove the allegations made in the private complaint, the complainant had examined 6 witnesses as P.W.1 to 6. Among them P.W.1 is the complainant. P.W.2 is the drug inspector. P.W.3 is the employee of accused No.1 company. P.W.4 is the person who was present at the time of drawing the sample drugs. P.W.5 is the 8 Crl.A.No.452/2016 government analyst. P.W.6 is the Drugs controller who have given sanction to P.W.1 to prosecute the accused. Now let us examine the evidence of the aforesaid witnesses and the documents produced by the complainant and other material on record in order to adjudicate whether the complainant had proved the guilt of the accused beyond reasonable doubt or not.
16. P.W.1 in his chief-examination has deposed that he has received letter from D.C. on 07.09.2011 by informing that the sample of ROLOSOL Tablet B.No.RLSL-08005, M/S 08/2008, E/D 07/2011, manufactured by accused No.1 company is not of standard quality and informed him to visit manufacturing unit. He has further deposed about that he, B.Suresh and one Kamalesh Kumar have visited the manufacturing unit and handed over the letter to accused No.4 and requested for licencing particulars, constitution details of the firm, memorandum of articles, master formula records, etc. P.W.1 has further deposed in his chief-examination that on the same day he has received letter and documents from accused No.4. In the said letter, accused No.4 has confirmed the manufacturing and distribution of the aforesaid batch number of drugs by accused No.1. P.W.1 has further deposed in his chief-examination that on 24.10.2011, he has received letter from accused No.4 stating that accused No.3 is responsible for manufacture of the said batch of drugs which is not of standard quality. He has further deposed in his chief-examination that on 28.10.2011, he wrote detail investigation report to Drug Controller for State of Karnataka as per Ex.P.63 stating that the accused No.1 to 4 are responsible for manufacturing and selling of not of standard quality ROLOSOL Tablet B.No.RLSL-08005, M/S 08/2008, E/D 07/2011 drugs. He has further deposed that on 25.01.2012, he has received 9 Crl.A.No.452/2016 permission letter from D.C., State of Karnataka to launch a prosecution against accused No.1 to 4 for contravention of Sec.18(a)(1) of Drugs and Cosmetic Act, as per Ex.P.64. He has further deposed in his chief- examination that on 09.02.2012 he has filed private complaint against the accused No.1 to 4 as per Ex.P.65.
17. P.W.1 in his cross-examination has admitted that when he had visited the manufacturing unit at Bilaspur, Himachal Pradesh, belonging to accused No.1, the manufacturing was having quality control samples. Those samples were standard quality. P.W.1 has further admitted in his cross-examination that he has not enquired about the company 3rd potion of sample. He has further admitted in his cross-examination that he do not know who are the directors of the company. In Ex.P.61 memorandum of association, the name of any director of the company is not mentioned. He has further admitted that Form No.13 is not a conclusive document.
18. P.W.2 in his examination-in-chief has deposed that on 07.05.2009 he had visited M/s Tidal Laboratories Pvt. Ltd., situated at Lalbagh Road and drawn legal sample of ROLOSOL Tablet B.No.RLSL-08005, M/S 08/2008, E/D 07/2011 which was manufactured by the accused No.1. P.W.2 has further deposed in his examination-in-chief that he have Form No.17 and one sealed portion of sample to Rathan Chand authorized signatory of accused No.1 company and he had acknowledged the same. P.W.2 has further stated in his examination-in-chief that he had send another sealed portion of sample drug to Government Analyst for test and analysis under Form No.18.
10 Crl.A.No.452/201619. P.W.2 has further stated in his examination-in-chief that on 16.09.2009, he has received test report in Form No.13 in which the Government Analyst has declared the said drug as not of standard quality in respect to disintegration test and on the same day he visited M/s. Tidal Laboratories and issued notice u/Sec.18A & 18B of Drugs and Cosmetic Act to disclose the source of acquisition and sales details and he handed over the copy of original test report in Form No.13 to Rathan Chand. P.W.2 has further stated in his examination-in- chief that on 05.10.2009, he had sent a one sealed portion of said drug along with copy of test report in Form No.13 to director of M/s Tidal Laboratories Pvt. Ltd., as required under the provisions of D & C Act. On 21.10.2009, he received reply letter dated 14.10.2009 from quality control manager of M/s Tidal Laboratories Pvt. Ltd., in which they have not challenged the test report. P.W.2 has further stated in his examination-in-chief that on 20.11.2009, he had visited M/s Tidal Laboratories Pvt. Ltd., along with two panchas namely Anand Kumar and Rajesh R. He had requested Rathan Chand to produce return stock of Rolsol tablets and seized the return stock produced by Rathan Chand by conducting panchanama as per Ex.P.82, in the presence of panchas and Rathan Chand. P.W.2 has further stated in his examination-in-chief that he wrote inspection report in Form No.35 in the presence of panchas and obtained permission of court to retain seized drugs in safe custody. P.W.2 has further stated in his examination-in-chief that he had send detail report of investigation to D.C. for the State of Karnataka, Bengaluru. P.W.2 has further stated in his examination-in-chief that he has identified the one sample of sealed Rolosol tablets B.No.RLSL08005 which was in his custody as M.O.1. P.W.2 has identified seized 385x10 tablets of Rolosol tablets B.No.RLSL08005 and 1318x10 tablets of Rolosol tablets 11 Crl.A.No.452/2016 B.No.RLSL08002, which are kept in carton box sealed with insulation tape as M.O.2. P.W.2 has admitted in his cross-examination that he did not drew sample in the presence of panchas and he did not drew panchanama while taking sample. P.W.2 has further admitted in his cross-examination that he has received the test report after four months from the date of drawing sample. P.W.2 has further stated in his examination-in-chief that he was not aware about the storage condition of drug in testing laboratory. P.W.2 has further stated in his examination-in-chief that third portion of sample is sent to manufacturer on 05.10.2009.
20. P.W.3 in his chief-examination has deposed that on 07.05.2009, P.W.2 had approached him while he was working as C & F agent for M/s Tidal Laboratories Pvt. Ltd., with letter for producing the Rolosol tablets labeled as B.No.RLSL-08005, D/E:7/2011, manufactured by Tidal Laboratories Pvt. Ltd., Patch 5, phase 2, Gowlthai, District, Beilaspur, Himachal Pradesh. P.W.3 in his chief- examination has further deposed that he has produced the said drug before P.W.2 and P.W.2 has drawn sample of four portion and each portion contain strips x 10 tablets under Form No.17. P.W.3 in his chief-examination has further deposed that on 16.09.2009 they have received test report stating that particular drugs are sub-standard quality. P.W.3 in his chief-examination has further deposed that he has furnished purchased details by letter dated 19.09.2009 to P.W.2. P.W.3 in his chief-examination has further deposed that on 20.11.2009, he was asked to produced whole stock and he has produced them before P.W.2 and P.W.2 seized those whole stock as per Ex.P.2 in his presence and in the presence of witnesses. P.W.3 in his cross-
12 Crl.A.No.452/2016examination admitted that there are no independent witnesses at the time of drawing the sample under Form No.17.
21. P.W.4 in his chief-examination has deposed that he was looking after business of M/s Tidal Laboratories Pvt. Ltd., situated near his shop at Sultanpet, Bengaluru. P.W.4 in his chief-examination has further deposed that on 20.11.2009, when he was in the shop, P.W.2 came to the shop and seized Rolosol tablets under Form No.16 and conducted mahazar in his presence and in the presence of Rajesh and Rathan Chand as per Ex.P.82. P.W.4 in his cross-examination has stated that he do not know the total quantity of drugs seized by P.W.2.
22. P.W.5 in her examination-in-chief has deposed that on 16.05.2009 she had received Rolosol tablet from P.W.2 for chemical examination, while she was working as Government Analyst in Drug Testing Laboratory. P.W.5 in her chief-examination has further deposed that she had subjected the said drug to analysis as per the I.P.2007 and found the drug was not of standard quality with respect to disintegration test. She gave her report in Form No.13 as per Ex.P.68. P.W.5 in her chief-examination has further deposed that she gave report stating that drug in question has failed in disintegration test because when she put the tablets in phosphate buffer 6.8, it did not dissolve within prescribe time of one hour. P.W.5 in her chief- examination has further deposed that if it was standard quality drug, it would have been dissolved within one hour.
23. P.W.5 in her cross-examination has admitted that she had subjected the drug in question for test on 14.09.2009, after four months after the receipt of the said drug. P.W.5 in her cross-examination has further admitted that the drug in question was in her custody for more 13 Crl.A.No.452/2016 than four months before subjected the same for test. P.W.5 in her cross-examination has further admitted that the drug should have been preserved in cool place in temperature between 8 to 25 degree Celsius. P.W.5 in her cross-examination has further admitted that she do not know the temperature of Bengaluru between 16.05.2009 to 14.09.2009. P.W.5 in her cross-examination has further admitted that in Bengaluru during May temperature will be high and it will be too hot. She has clearly admitted in her cross-examination that she has not preserved the drug in question in cool place i.e., required storage condition. P.W.5 in her cross-examination has further admitted that in Form No.18, the ingredients of Rolosol is shown as Diclofenac potassium B.P. 50 mg. And Serratiopeptidase 10 mg. equivalent to 20,000 units. P.W.5 in her cross-examination has further admitted that in Form No.13, she has mentioned ingredients of Rolosol subjected to test is only Diclofenac potassium. P.W.5 in her cross-examination has further admitted that there was no facilities in her laboratory to carry out the test for Serratiopeptidase. P.W.5 in her cross-examination has further admitted that she has not put the drug in question for complete analysis as the facilities were not available.
24. P.W.6 in his examination-in-chief has deposed that when he was working as Drugs Controller for the State of Karnataka from 01.05.2008 to 31.10.2013, he has given permission to launch prosecution against four accused of this case for having manufacture and sold not of standard quality of drug Rolosol tablets, labeled as B.No.RLSL08005, M/D 08/2011 D/E:7/2011, manufactured by accused No.1. P.W.6 in his examination-in-chief has further deposed that the said permission was given to Drug Inspector, Circle-3, Bengaluru vide letter dated 25.01.2012 after verifying his report and documents.
14 Crl.A.No.452/201625. The Learned counsel for the appellant in his written arguments has contended that the Learned Magistrate is erred in holding that no mahazar is conducted in the presence of two independent witnesses. He has contended that the complainant has followed all the procedures as contemplated u/Sec.22(A),(B) and (C) of act before conducting the mahazar and conducted mahazar in the presence of witnesses. It is further argued that panchanama in this case was conducted in the presence of P.W.4 and hence, the Learned Magistrate is erred in disbelieving the mahazar. He has relied upon the judgment of Hon'ble High Court of Karnataka reported in (State of Karnataka, Hassan City police V/s Lokesh and others) ILR 2001 Kar 4655 in support of his said contention. It is further argued that the accused have not challenged the report of the expert that the subject drug is not of standard quality drug. The trial court has not considered this aspect. It is further contended that the complainant is a public servant and he had no enemity with the accused and there is no reasons to disbelieve his evidence. The complainant has proved his case beyond reasonable doubt. It is further contended by the Learned counsel for the appellant that trial court has not judiciously considered the oral and documentary evidence adduced on behalf of the complainant and acquitted the accused on untenable ground. In support of the arguments, the Learned counsel for the appellant has relied upon several judgments which are mentioned in his written arguments and hence prayed to set aside the impugned judgment of the trial court and prayed to convict the accused.
26. I have considered the arguments addressed on behalf of the appellant, the findings of the trial court in the impugned judgment and arguments of the Learned counsel for respondents and the 15 Crl.A.No.452/2016 decisions cited by them. The Learned Magistrate has disbelieved the case of the complainant mainly on the ground that the complainant has not followed the statutory standard at the time of collecting the samples. The Learned Magistrate has also observed that the samples were not drawn under panchnama in the presence of two independent witnesses. The Learned Magistrate has also observed that the government analyst has not conducted the test of sample drugs in the prescribed manner in view of non-availability of certain facilities for doing so. The Learned Magistrate has acquitted by extend the benefit of doubts for the reasons stated in the impugned judgment.
27. As per the evidence of P.W.2 and P.W.3 sample of Rolosol tablets B.No.RLSL08005, D/E:7/2011 manufactured by accused No.1 company was drawn on 07.05.2009 from M/s Tidal Laboratories Pvt. Ltd., situated at Lalbag Road, Bengaluru. Further according to the P.W.2, one portion of sample drug was sent to Government Analyst under Form No.18 dated 07.05.2009 and it was received. As it is held by Learned Magistrate, the said samples were not drawn by P.W.2 by conducting mahazar in the presence of two independent witnesses. This fact is also admitted by P.W. 2 in his cross-examination.
28. The Learned Magistrate has held that samples are not drawn by conducting mahazar in the presence of two independent witnesses. The Hon'ble Supreme Court of India in the decision stated in the impugned judgment of trial court reported in 2007 (2) EFR 109(SC) (State of Goa V/s Tejpal P.Pandia, Proprietor and another) has acquitted the accused on the ground of defective search and seizure and no panchanama drawn in respect of drawing of samples and details of seal which was affixed are not given and letter of specimen seal not prepared at spot when samples were sealed and 16 Crl.A.No.452/2016 the samples were in the custody of drug inspector for about one month. The said decision was passed with respect to offences under Sec.27 of Drugs and Cosmetic Act. P.W.1 in the cross-examination has stated that he has not drawn any panchanama while taking sample. He has stated that sample has not been drawn in the presence of independent witnesses. The complainant has to prove beyond all reasonable doubt that, samples was drawn by him from M/s Tidal Laboratories Pvt. Ltd, situated at Lalbag Road, Bengaluru on 07.05.2009 in the presence of panchas and the said sample was sealed and the said sealed samples was sent to the government analyst for test.
29. Under Sec.23 of Act, the inspector has to disclose the purpose of drawing the sample in writing in the prescribed form to the person from whom he takes it and in the presence of such person he shall divide the sample into four portion and effectively seal and suitably mark the same and permit such person to add his own seal and to mark to all or any of the portion so sealed and marked. The inspector shall sent one portion to the government analyst for test and analysis. The second portion shall produce to the court before which proceedings, if any, are instituted in respect of the drug. The third portion shall sent to a person, if any, in whose name, address and other particulars have been disclosed under Sec.18(a).
30. In the complaint there is no reference about dividing the sample into four portions. There is no reference about effectively sealing the same and marking all the four portions. P.W.3 in his examination-in-chief has not though deposed about the drawing of sample in four portions, he has not stated anything about sealing each portions separately and marking each portion. P.W.2 in his cross- examination has admitted that he did not drew the sample in the 17 Crl.A.No.452/2016 presence of panchans and he has not conducted any panchanama while drawing the samples. Ex.P.17 is the Form No.17 prepared by P.W.2 at the time of drawing the samples. But in Ex.P.17, there is mention about dividing the samples into four portions, sealing each portion and marking of each portion in the spot.
31. P.W.2 in his chief-examination has deposed that on 07.05.2009 he had sent one sealed portion of sample drug to Government analyst under Form No.18. P.W.2 or P.W.3 in their examination-in-chief have not deposed anything about marking of the samples by P.W.2 at the time of collecting the samples. P.W.3 though deposed in his examination-in-chief that he has sent one sealed portion of sample to government analyst, he has not deposed about putting seal on it. In Ex.P.18, there is reference about putting of seal containing the letter A.J. on the samples. But this fact is not stated either by P.W.2 and P.W.3 in their evidence. P.W.5 the government analyst in her examination-in-chief has not deposed anything about she receiving sealed and marked sample drugs for examination from P.W.2.
32. Though P.W.2 has stated that he has sent one sealed portion of drug to government analyst on 07.05.2009, P.W.5 has deposed in her examination-in-chief that she had received sample Rolosol tablets on 16.05.2009 for examination. The delay in sending the sample drug for chemical examination is not properly explained by P.W.2. P.W.2 has not deposed anything regarding how he has sent the sample drugs for chemical analyst. It is sent through any person or through courier or post. P.W.2 is not deposed anything regarding the said fact. P.W.2 in his examination-in-chief has not deposed anything about how he had sent one sealed sample to government analyst. In 18 Crl.A.No.452/2016 the complaint also there is no mention regarding the said fact. Why there was delay in sending the sample drug to government analyst is not property explained by the complainant.
33. Even though there is no mandatory provision under the Drug and Cosmetic Act to drawn the sample by conducting mahazar, compliance of provision of Sec.94 and 104 of Cr.P.C. regarding search and seizure has to be followed. The Hon'ble Supreme Court of India in the judgment cited above has held that accused is entitled to be acquitted in case of defective search and seizure and if no panchanama is drawn at the time of drawing of sample. As it is discussed earlier, evidence of P.W.3 is not helpful to the complainant to prove that he has followed all the mandatory requirements as provided under Drugs and Cosmetic Act at the time of drawing sample. In order to believe the evidence of P.W.2 alone, he should have produced sufficient materials to show that he has followed all the mandatory requirements of Sec.23 of the act. But the complainant has failed to prove beyond reasonable doubt that he has followed all the mandatory requirement of Sec.23. He has not conducted any mahazar in the presence of any independent witness at the time of drawing samples. He has not divided them into four portion and not sealed each portion and marked them in the presence of any mahazar witnesses. There are no believable evidence to show that the sample which was sent to government analyst is the very same sample which was drawn by P.W.2 from P.W.3.
34. The complainant has failed to prove beyond reasonable doubt that one sample portion was sent to manufacturer along with test report. In Ex.P.13 letter dated 17.09.2009 written by the complainant to accused No.1, there is no reference about sending one sample sealed 19 Crl.A.No.452/2016 portion collected by him from P.W.3. There is reference only about sending the government analyst report in Form No.13. The complainant has not produced any acknowledgment letter issued by accused No.1 about receipt of one portion of sample sealed drug and test report. Hence, it is clear that the manufacturer is deprived of his right to get second opinion from central Drug Laboratory on Form No.13. P.W.2 though has stated that he has sent one sample portion to manufacture along with test report, he has not produced any acknowledgment given by the concerned person for having received one portion of sample. In Ex.P.79, there is no mention about receipt of sample portion of the drug. The complainant has not produced any acknowledgment letter issued by accused No.1 about receipt of one portion of sample sealed drug. Hence, it is clear that manufacturer is deprived of his right to get second opinion from the Central Drug Laboratory.
35. As it is mentioned earlier, P.W.5 in her cross-examination has clearly stated that the sample drug was in her custody from 16.05.2009 to 14.09.2009 for more than four months after the same was alleged to have been collected by her. P.W.5 in her cross- examination has admitted that she has subjected the sample drugs for examination after more than four months after the receipt of the same. She has also clearly admitted that the drug should have been preserved in cool place and she has kept the same in cupboard. P.W.5 in her cross-examination has stated that she do not know the temperature of Bengaluru between 13.03.2009 to 14.09.2009. She has admitted that in Bengaluru during May temperature will be high and it will be too hot. She has also clearly admitted in her cross- examination that she had not preserved the drug in question in required cool place i.e., required storage condition. P.W.5 has not 20 Crl.A.No.452/2016 given any valid reasons to keep the sample drug with her for more than four months from the date of receipt and for not conducting the examination or test immediately after receipt of the same.
36. The complainant has failed to adduce sufficient evidence to prove that at what temperature the Rolosol tablets was kept in pharmacy when P.W.2 has drawn the sample from the pharmacy. P.W.2 has not noted storage condition and temperature under which the sample was kept in the pharmacy when it was drawn by him. P.W.3 in his evidence has also not stated anything regarding where the Rolosol tablets were kept in the pharmacy. All these facts and circumstances creates doubts about the possibility of drug loosing its potential value at the time of collection of sample and at that time of sending it to government analyst and at the time of examination of sample drug by P.W.5. As such, doubt arises about the say of complainant and P.W.5 that M.O.1 sample is of sub-standard drug manufactured by accused No.1.
37. Under Rule 46 of the Drug and Cosmetic Act, 1940, "on receipt of a package from an Inspector containing a sample for test or analysis, the Government Analyst shall compare the seals on the packet (or on portion of sample or container) with the specimen impression received separately and shall note the condition of the seals on the (packet or on portion of sample or container). After the test or analysis has been completed, he shall forthwith supply to the Inspector a report in triplicate in Form 13 of the result of the test or analysis, together with full protocols of the tests or analysis applied. But in this case there are no sufficient materials on record to show that the prescribed procedure as contemplated u/Sec.46 of Drugs and Cosmetic Act is followed or not.
21 Crl.A.No.452/201638. As per the case of the complainant, he had collected the sample on 07.05.2009. The sample was sent to government analyst on 16.05.2009. The government analyst had conducted the test of the sample on 14.09.2009, declaring the sample not of standard quality. The manufacturing date of the sample drugs collected was 08/2008 and expiry date was 7/2011. The complainant was lodged before the court on 09.02.2012. The complaint was filed after the expiry date of the legal sample. No valid reasons are given by the complainant for delay in filing the complaint. The complainant has failed to adduce any sufficient materials to prove beyond reasonable doubt that legal sample was given to the accused within the period of expiry date.
39. Hence, it is argued by Learned counsel for the respondents that valuable right is denied to accused to challenge the test report before Central Drugs Laboratory, Kolkata which is a conclusive one. In the decision relief upon by the Learned counsel for the respondents reported in 2013(2) Drug cases (DC) 206- Galpha Laboratories Ltd., and others V/s State of Gujarat and another, the Hon'ble High Court quashed the proceedings against accused on the ground that complaint was filed after shelf life of the sample of the drug and the accused have been deprived of their valuable statutory right of getting the sample reanalyzed from the central drug Laboratory. The Hon'ble High Court of Karnataka in Crl.Petition No.7059/10 (M/s Alfred Berg and Co(I) Pvt. Ltd. and others V/s State by ADC, Haveri Circle - DD- 17.08.2010) quashed the proceedings against accused and discharged them for the offence punishable u/Sec.27 (d) of Drugs and Cosmetic Act on the ground that the complaint was filed after the expiry of the life period of the drug in question and the accused lost his right to cause the sample of the said drug subjected to 22 Crl.A.No.452/2016 further analysis or test. In the case before the trial court also similar situation arose. As such, the aforesaid two decisions are applicable to the case on hand.
40. P.W.5 in her cross-examination has admitted that the ingredients of Rolosol sample shown in Form No.18 is Diclofenac Potassium B.P. 50 mg. And Serratiopeptidase 10 mg. She has also admitted that she has only subjected the sample of Rolosol drug to test of Diclofenac potassium. P.W.5 in her cross-examination has admitted that since no facility for test of Serratiopeptidase was there in the laboratory, she has not put the drug in question for the said test. Thus it is clear from the evidence of P.W.5 that she has not conducted complete test of legal sample.
41. The complainant has committed several irregularities and he has not followed the rules and regulations provided under the Drugs and Cosmetic Act before drawing the sample of Rolosol drug from P.W.3 and he has not followed the procedure contemplated under the said act after drawing the sample as discussed above. All these facts and circumstances as discussed above creates doubts regarding the case of the complainant that the sample sent to government analyst is the same sample which was alleged to have been collected by him from the pharmacy of P.W.3. As it is discussed earlier, M.O.1 was not drawn from the pharmacy of P.W.3 in the presence of independent eyewitness or mahazar witness. P.W.2 has not conducted any mahazar. He has not sealed the sample as per the provision of Drugs and Cosmetic Act and he has not put any mark on the sample seals in the presence of mahazar witnesses. There is no corroboration to the evidence of P.W.2 regarding drawing of sample which is alleged to have been sent to government analyst from the pharmacy of P.W.3.
23 Crl.A.No.452/2016Further it is earlier discussed and held above that due to delay in sending the sample to the government analyst and due to condition of storing the sample drug by the complainant and also by government analyst for more than four months creates doubt about that legal sample might have losing its potential value and there may be possibility of not getting accurate result in the test conducted by P.W.2. Further the accused have also lost their right to get drug sample tested or analyst in the Central Drug laboratories. Under all these facts and circumstances and for the discussions made above, I am of the opinion that the interested evidence of complainant alone cannot be relied upon to hold that the accused have committed the offence punishable u/Sec.27(d) of Drugs and Cosmetic Act.
42. The complainant has failed to adduce sufficient oral and documentary evidence before the trial court to prove the alleged charge against the accused beyond reasonable doubt. As such, I am of the opinion that the accused No.1 to 4 are entitled to get benefit of doubts with respect to the commission of alleged offence. Under these facts and circumstances, I am of the opinion that the trial court has rightly held that the accused No.1 to 4 are entitled to get benefit of doubts. Hence, the trial court has rightly acquitted the accused No.1 to 4 for the alleged offence. Hence, I do not find any grounds to interfere with the impugned judgment of the trial court. As such, the appeal filed by the appellant is deserves to be dismissed. Accordingly, I answer Points No.1 to 3 in In Negative.
43. Point No.4:- In view of my findings on point No.1 to 3, I proceed to pass the following:
24 Crl.A.No.452/2016ORDER The Appeal filed by the appellant u/s.378(1)(a) of Cr.P.C., is hereby dismissed.
The order passed by learned Special Court for Economic Offences, Bengaluru, dated 05.12.2015 in C.C.No.25/2012 is hereby confirmed.
Send back the lower court records along with copy of this order.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open court on this the 4th day of May, 2022).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.25 Crl.A.No.452/2016
Judgment pronounced in the open court (vide separate order) ORDER The Appeal filed by the appellant u/s.378(1)(a) of Cr.P.C., is hereby dismissed.
The order passed by learned Special Court for Economic Offences, Bengaluru, dated 05.12.2015 in C.C.No.25/2012 is hereby confirmed.
Send back the lower court records along with copy of this order.
LII Addl. City Civil & Sessions Judge, Bangalore.26 Crl.A.No.452/2016