Bangalore District Court
Control Department vs Manufacturing Chemist on 14 March, 2022
0
Crl.A.No.462/2016
1
Crl.A.No.462/2016
KABC010088812016
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
.
Dated this the 14th day of March, 2022
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.462/2016
Accused/ State by The Assistant Drugs
Appellant : Control Department,
Uttarakannada Circle, Karwar.
(by Learned Public Prosecutor)
-V/S-
Complainants/ 1. Kulabushan Sharma,
Respondents: Manufacturing Chemist,
M/s.Tidal Laporatories Pvt. Ltd.,
Patch-5, Phase-11, Gowalthi,
Dist.Bilaspur-174201 (H.P.) India.
2. 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.G.D.R., Advocate)
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Crl.A.No.462/2016
JUDGMENT
The appellant has filed the present appeal u/Sec.378(1)(a) of Cr.P.C. praying to set aside the judgment dated 12.01.2016 passed by learned Special Court for Economic Offences, Bengaluru, in CC.No.142/2013 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 and 2 of this appeal were the accused No.3 and 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 learned 2 nd Addl. J.M.F.C. Sirsi, 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 2 nd Addl.J. M. F. C., Sirsi, has took cognizance for the offence punishable u/Sec.27(d) of the Drugs and Cosmetic Act, 1940 and registered 3 Crl.A.No.462/2016 criminal case against the accused No.1 to 4 as CC.No.796/2012 and issued summons to accused No.1 to 4. In pursuance of issuance of summons by the Learned Magistrate, the accused have appeared before the court and they were enlarged on bail. The learned 2nd Addl. J. M. F. C., Sirsi, vide order dated 05.06.2013 as per the order of Hon'ble High Court of Karnataka, Dharwad Bench, dated 27.02.2013, in Crl.Petition No.10253/2013 was pleased to transfer the case to the Special Court for Economic Offences, Bengaluru to be tried along with CC.No.25/2012.
4. Thereafter the case was called before the Special Court for Economic Offences, Bengaluru. The learned judge of Special Court for Economic Offences, Bengaluru was pleased to take cognizance against the accused for the offence punishable u/Sec.27(d) of the Drugs and Cosmetic Act, 1940 and CC.No.142/2013 was came to be registered and summons was issued to the accused. In pursuance of summons, the accused have appeared before the Special Court for Economic Offences, Bengaluru and they were enlarged on bail. Thereafter, the learned Special Court for Economic Offences, Bengaluru was posted the matter for recording plea of the accused. The plea of the accused for the offence punishable u/Sec.27(d) of the Drugs and Cosmetic Act, 1940 was recorded. The accused pleaded not guilty and they came to be tried. Then the matter was posted for the evidence of the complainant.
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5. The complainant in order to prove the allegations made in the private complaint had adduced his oral evidence as P.W.1 before the trial court. The complainant has produced 29 documents and got them marked as Ex.P.1 to P.29 and one material objects was marked on behalf of the complainant as M.O.1. Thereafter, the trial court has posted the matter for recording of statement of the accused u/Sec.313 of Cr.P.C.
6. The statement of accused u/Sec.313 of Cr.P.C. was recorded by the trial court. The accused have denied all the incriminating evidence appearing against him and they have not chosen to lead their defence evidence. Then the matter was posted by the trial court for arguments.
7. The trial court, after hearing the arguments and after perusing the oral and documentary evidence was pleased to pass the judgment dated 12.01.2016 by acquitting the accused for the offence punishable u/Sec.27(d) of the Drugs and Cosmetic Act, 1940. It is to be noted here that the proceedings against the accused No.1 and 2 was quashed vide order dated 25.09.2015.
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 5 Crl.A.No.462/2016 other rules and regulations connected to the said provision. The Learned Magistrate has erred in holding that the mandatory provision of Sec.23 (1)(3)(4) of the Drugs and Cosmetic Act, has not been followed by the complainant.
(b) The Learned Magistrate has failed considered the fact that collection of sample by exercising power u/Sec.22(C) of the Drugs and Cosmetic Act, sending the said sample for quality test u/Sec.23(1)(3)(4) of the Drugs and Cosmetic Act, will not come all within the purview of Sec.93 of Cr.P.C.
(c) The procedure for seizure as provided under Cr.P.C.
shall have to be followed by the officer at the time of seizure of the inferior quality of drugs u/Sec.23(5) of Drugs and Cosmetic Act. Whereas the trial court is erred in holding that the said procedure has to be followed with respect to the case covered u/Sec.18(a)(1) and Sec.27(d) of Drugs and Cosmetic Act.
(d) The trial court has not considered the fact that the complainant has followed all the rules and regulation provided u/Sec.23(1)(3)(4) of Drugs and Cosmetic Act and he has collected the samples by following procedure contemplated under said section and the complainant had made letter correspondence with the company by following regulations u/Sec.25 of the Drugs and Cosmetic Act. The trial court has not considered the fact that the complainant has followed all the prescribed rules and regulations before filing the private complaint.
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(e) The trial court has erred in considered the fact that all the decisions of Hon'ble Supreme Court of India relied upon by the Learned counsel for the accused would be applicable only to the procedure under Sec.22(c) and 23(5) of Drugs and Cosmetic Act and not to the samples taken u/Sec.22(a)(b) and 23(1)(3)(4) of Drugs and Cosmetic Act.
(f) The Govt. Analyst, Bengaluru has given letter as per Ex.P.12 dated 17.09.2009 by holding that the sample drugs collected in this case are of sub-standard quality drugs and thereafter the complainant had filed private complainant before the court. The trial court has not properly considered this fact and the trial court is erred in acquitting the accused for the alleged offences. Even though the complainant had proved the commission of the alleged offences by the accused by adducing sufficient oral and documentary evidence, the trial court has not considered the same and acquitted the accused on technical grounds and by disbelieving the case of the complainant. As such, the impugned judgment is liable to be set aside.
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.462/2016 and notice was issued to the respondent. In pursuance of service of notice, the respondents have appeared through their counsel. Thereafter, the lower court record was 7 Crl.A.No.462/2016 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 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:
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Crl.A.No.462/2016
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.142/2013. 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 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 complainant on 19.02.2009 has drawn 4x10x10 tablet ROLOSOL Tablet B.No.RLSL-080036, D/M. 06/2008, D/E. 05/2011, manufactured by M/S Tidal Laboratories Pvt. Ltd., under Form No.17 dated 19.02.2009 for test and analysis from C.W.2 Hastimal Z. Chowdary, Propritor of M/s.Saroj Pharma, CTS No.208/A2, Devikere Circle, Sirsi. The complainant handed over the copy of Form 17 along with one sealed portion 1x10x10 tablets of above drug to C.W.2 under due acknowledgment. The complainant on 20.02.2009, sent one sealed portion of the subject drug which was taken for test and analysis under Form 9 Crl.A.No.462/2016 17, to the Govt. Analyst, Drugs Testing Laboratory, Bengaluru, along with memorandum in Form 18, dated 20.02.2009. The complainant received the test report in Form No.13, dated 14.09.2009 from C.W.3, Smt.N.D.Pramila, declaring the said sample drug manufactured by accused No.1 firm as "Not of standard quality". The accused No.1 represented by accused No.2, one of the director responsible for day today activity of the company in responsible for the manufacturing and sale of the "Not of standard quality" Drug. The accused No.3 is the manufacturing chemist responsible for manufacturing of the said sub-standard drug. The accused No.4 being the technical staff for analysis and testing of the Rolosol Tablet B.No.RLSL 08003, D/M/ 6/08, D/E 5/11 have contravened Sec.18(a)(1) of Drug and Cosmetic Act which is punishable u/Sec.27(d) of the Drugs and Cosmetic Act, 1940.
15. In order to prove the aforesaid allegations made in the complaint, the complainant had examined five witnesses before the trial court as P.W.1 to P.W.5. Among them P.W.1 is the complainant, P.W.2 is the Scientific Officer cum Govt. Analyst, Bengaluru. P.W.3 is the proprietor of the Pharma from which sample was collected by P.W.1. P.W.4 is the one of the employee of accused No.1 company. P.W.5 is the drugs controller who has 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 10 Crl.A.No.462/2016 complainant had proved the guilt of the accused beyond reasonable doubt or not.
16. P.W.1 in his chief-examination has deposed about the collection of 4x10 strips x 10 tablet of legal sample of Rolosol Tablets, B.No.RLSL 08003, D/M:06/08; D/E 05/11 manufactured by accused No.1 from M/S Saroj Pharma, Sirsi on 19.02.2009 under Form No.17, as per Ex.P.7. He has deposed about handing over of M.O.1 i.e., one portion of sample drawn under Form No.17 to C.W.2 and obtaining the acknowledgment from C.W.2. He has further deposed about preparation of inspection report as per Ex.P.10. He has further deposed about he sending one portion of said sample Drug for test by Govt. Analyst under Form No.18 as per Ex.P.11 and Govt. Analyst sent a form No.13 as per Ex.P.12 by reporting that sample drug sent for analyst is not of standard quality and it is failed in disintegration test. He has also deposed that he wrote letter to labeled manufactured along with test report for future steps as per Ex.P.13 and issued notice u/Sec.18(A & B) of the act to C.W.2 to disclose the source of acquisition and distribution details of said not of standard quality drugs as per Ex.P.15. He has further deposed that C.W.2 replied as per Ex.P.15 that he had purchased the subject drug from accused No.1 and enclosed purchase invoice as per Ex.P.15. He has further deposed that C.W.2 again replied on 24.09.2009 as per Ex.P.17 by furnishing distribution detail. He has further deposed that on 26.09.2009, he had addressed a letter to 11 Crl.A.No.462/2016 accused No.1 as per Ex.P.19 along with test report and one sealed portion of said drug requesting the information about source of acquisition. On 12.10.2009, accused No.1 gave reply as per Ex.P.21 by giving details of source of acquisition and distribution letter. He has further deposed that on 13.10.2009, he had submitted a interim report to the D.C. for state of Karnataka as per Ex.P.20. The D.C. vide letter dated 07.09.2011 as per Ex.P.24 informed him to carry out investigation at manufactures level along with one Ganesh Babu, D.I. B'luru Circle-3. He has further deposed that he, Ganesh Babu and C.W.4 visited manufacturing unit and got confirmation as to constitution and licensing document with accused No.4 and shown Rolosol tablet sample collected by him from M/s.Saroj Pharma and accused No.4 has identified the said sample and put his signature on M.O.1. He has further deposed that thereafter he had submitted detailed report to D.C. as per Ex.P.27 and D.C. accorded permission to him to file the complaint against accused No.1 to 4 in his sanction order dated 06.09.2012 as per Ex.P.28. He has further deposed that as per said sanction, he had filed private complaint before the trial court as per Ex.P.29 against accused No.1 to 4
17. P.W.2 in his chief-examination has deposed about P.W.1 visiting his pharma on 19.02.2009 and taking sample of Rolosal tablets under Form No.17 and he issuing sales bill on Ex.P.9 and preparation of inspection report by P.W.1 as per Ex.P.10 and he receiving the said inspection report. He has 12 Crl.A.No.462/2016 further deposed about receipt of test report and notice u/Sec.18(A & B) of said act From P.W.1 as per Ex.P.12 and P.14 and about giving of report by him to said notice as per Ex.P.15 stating that he had purchased the subject drug from accused No.1 as per Ex.P.16 purchase bill. He has further deposed that he gave another reply to ADC, Karwar as per Ex.P.17 on 24.09.2009 by furnishing statement of sales details as per Ex.P.18. He has identified one portion of Rolosol tablet collected from his shop.
18. P.W.3 in his chief-examination has stated that on 13.03.2004, when he was working as Govt. Analyst in Drug testing laboratory, he had received the Rolosol tablet sample drug to analysis from P.W.1 and subject the said drug for analysis as per I.P.No.2007. He has further deposed that he found the drug was not of standard quality by conducting disintegration test. When he put the tablet in phosphate buffer 6.8, it did not dissolve within prescribe time of one hour. He has further deposed that if it was standard quality it would have been dissolved within one hour.
19. P.W.4 in his chief-examination has stated that when he was working as C & F agent for accused No.1, on 26.09.2009 he received letter from ADC, Karwar stating that subject drug is not of standard quality with direction not to sell the product and recalled and to furnish sale and purchase details as per Ex.P.19. He has further deposed that he gave 13 Crl.A.No.462/2016 reply as per Ex.P.21 along with stock transfer challan and sale invoice as per Ex.P.22 and P.23.
20. P.W.5 in his chief-examination has deposed that when he was working as D.C. of the state of Karnataka, he gave permission to P.W.1 to launch prosecution against accused No.1 to 4 for having manufactured and sold drug of not of standard quality of Rolosol tablets on the basis of report of P.W.1 dated 05.01.2012 and 14.02.2012. He has further deposed that he gave permission as per Ex.P.28 after verifying the report and documents submitted.
21. The Learned Magistrate disbelieved the case of the complainant on the ground that the complainant has not followed statutory standard at the time of collecting sample. The sample was not drawn under panchanama in presence of two independent witnesses. The Learned Magistrate has also observed that complainant has also not followed the mandatory provision of Sec.23(4) and as such the right provided u/Sec. 25 (4) of act to accused is deprived. Further Learned Magistrate has observed that shelf life of the drug was expired on May 2011 and complaint was filed on 10.09.2012 and such accused have lost opportunity of challenging the report and as such prosecution against accused do not survive. The Learned Magistrate also observed that Hon'ble High Court of Karnataka in Crl.P.No.1393/2014 filed by accused No.1 and 2 has held that complaint is barred by law of limitation and quashed 14 Crl.A.No.462/2016 proceedings against accused No.1 and 2 and as such the case against accused No.3 and 4 does not survive. Hence, on all the aforesaid grounds, the Learned Magistrate acquitted the accused No.3 and 4 for the alleged offences.
22. 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 mahaar 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. The Learned counsel for the appellant has also contended that Learned Magistrate has wrongly considered the date of sending the sample I.e, 22.09.2009 as the date of receiving report from expert and has wrongly came to the conclusion that complain is barred by law of limitation. 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 15 Crl.A.No.462/2016 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.
23. I have considered the arguments addressed on behalf of the appellant, the findings of the trial court in the impugned judgment and contention of the Learned counsel for respondents and other materials on record. The complainant had filed complaint against the accused No.1 to 4 by alleging that the accused have violated the Sec.18(a) of the act. The said provision prohibits manufacture for sale or for distribution or sell, or stock or exhibit or offer for sale or distribute any drug which is not of a standard quality, or is misbranded, adulterated or spurious. Sec.27(d) of the act provides for punishment for contravention of Sec.18(a) (I) of act. According to the said section, the contravention of Sec.18(a)(i) of act shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than Rs.25,000/-.
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24. Under Section 468(2)(c) of Cr.P.C. if the imprisonment is for term exceeding one year but not exceeding three years, the limitation for filing the complaint is three years. The trial court in its judgment considered date of report of the Govt. Analyst as 20.02.2009. On the other hand as per the contention of complainant, he had received Form No.13 report as per Ex.P.12 on 17.09.2009. As per the case of the complainant he has collected the sample on 19.02.2009. He has sent sample for test on 20.02.2009 as per Ex.P.11 to Govt. Analyst. The date mentioned on Ex.P.12 is the date of receipt of letter Ex.P.11. The said date is not the date of submission of the report. The report date is 14.09.2009. P.W.2 in his cross- examination has stated that on 14.09.2009 he had subjected the drug in question for test on 14.09.2009. It was suggested to P.W.2 on behalf of accused during the course of cross- examination that the drug was in his custody for six months before he subject the same for test i.e., from 13.03.2009 to 14.09.2009 or from 20.02.2009 to 14.09.2009. As such, the report of P.W.2 might have been received by P.W.1 only after 14.09.2009 i.e., on 17.09.2009. The complaint before trial court was filed on 10.09.2012. Thus it is clear that the complaint was filed with in the period of three years from the date of receipt of report. It seems that Learned Magistrate has misunderstood the dates as it is rightly pointed out by Learned counsel for the appellant.
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25. But the Hon'ble High Court of Karnataka in Crl.Petition.No.1393/2014 filed by accused No.1 and 2 had quashed the proceedings against the accused No.1 and 2 initiated by the complainant before the trial court on the ground that complaint is filed beyond the period of limitation prescribed u/Sec.468 of Cr.P.C. The complainant has not challenged the said order of Hon'ble High Court of Karnataka. The complainant has not produced any documents before trial court to show that he had challenged the said order. When the Hon'ble High Court of Karnataka has come to specific conclusion that the complaint filed by the complainant is barred by law and when Hon'ble High Court of Karnataka quashed the proceedings against accused No.1 and 2 and when the complainant has not challenged the order of Hon'ble High Court of Karnataka, now the appellant cannot be permitted to take contention in this appeal that complaint filed by him is within the period of limitation. The complainant is stopped from taking such contention. In view of the order of Hon'ble High Court of Karnataka, the trial court has rightly come to the conclusion that the complaint is barred by law. The trial court or this court cannot take any contrary view or opinion against the order of Hon'ble High Court of Karnataka. The complainant having accepted the verdict of Hon'ble High Court of Karnataka with respect to accused No.1 and 2, cannot contend contrary in case of accused No.3 and 4. Proceedings before the trial court was initiated by the complainant against accused No.1 to 4 with respect to the same incident. When the Honb'el High Court of 18 Crl.A.No.462/2016 Karnataka of quashed the proceedings against accused No.1 and 2 on the ground of limitation, the said order would also applies to accused No.3 and 4 even though they have not approached the Hon'ble High Court of Karnataka. As such, I do not find any grounds to interfere with the finding of the trial court that complaint is barred by limitation.
26. 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 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 Saroj Pharma belonging to P.W.2 on 19.02.2009 in the presence of panchas and sealed 19 Crl.A.No.462/2016 the same and the said sealed samples was sent to the government analyst to test the same.
27. 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).
28. In the complaint there is no reference of dividing the sample into four portions and effectively sealing the same and suitably making all the four portions. P.W.1 in his evidence has not deposed anything about diving the sample separately into four portions and sealing each portion separately and marking the each portion. P.W.3, proprietor of Saroj Pharma in his evidence has also not deposed about dividing the samples into four portion separately by P.W.1 in his presence and effectively sealing each portion in his presence and marking them. He has not deposed that one sealed portion of sample was given to him by P.W.1. P.W.3 in his cross-examination has 20 Crl.A.No.462/2016 stated that P.W.1 did not called any panch witnesses during he collected sample drug. He did not draw any panchanama at that time. He has admitted that nobody have witnessed inspection report. In Ex.P.7, Form No.17, there is no mention about dividing the sample in to four portion, sealing and marking of each portion.
29. P.W.1 in his evidence has only stated that he had sent one portion of sample to drug test and analysis under form No.18. But he has not specially deposed that he had sent sealed sample to government analyst. In Ex.P.11 it is stated that portion of sample has been marked by him with mark mentioned in it. But P.W.1 and P.W.3 in their evidence have not stated anything about marking of four samples at the time of collection with the mark mentioned in Ex.P.11. In Ex.P.11, there is no mention about sending the sealed sample. In Ex.P.12, Form-13, the report of the government analyst, there is no mention about receipt of sealed and marked sample. P.W.2 in her chief-examination has not stated anything about she receiving the sealed and marked samples from P.W.1. Ex.P.11 letter is dated 20.02.2019. If really the samples are sent to government analyst on 20.02.2009, it would have reached within one or two days. P.W.1 in his evidence has not deposed anything about how he had sent one portion of sample to government analysis. Whether he had sent it through registered post or through any person is not known. There is no mention in the complaint about the said fact. The 21 Crl.A.No.462/2016 complainant has not produced any documents to show that he had sent one portion of sealed sample to government analyst on 20.02.2009. In Ex.P.12 it is stated that sample drug of Rolosol was received on 13.03.2009. P.W.2 in the chief- examination has stated that she received sample from P.W.1 on 13.03.2009. Why there is delay in sending the sample to government analyst is not properly explained by the complainant.
30. 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. Except the evidence of P.W.1 who is none other than the complainant, there are no independent witness to prove the fact of drawing of sample from pharma of P.W.3 in accordance with law. In order to believe the evidence of P.W.1 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 22 Crl.A.No.462/2016 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 it 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.1 from P.W.3. 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 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.
31. P.W.1 in his cross-examination has stated that the sample was with him from the date when the sample taken and when the sample was sent to analyst. He has not assigned any valid reasons for delay in sending the sample to analyst. As per evidence of P.W.2, she had received the sample on 13.03.2009 from P.W.1. Why P.W.1 had kept the sample in his custody till 13.03.2009 even though according to him it was collected on 23 Crl.A.No.462/2016 19.02.2009 is not properly explained. P.W.1 has admitted that sample was in the custody of government analyst for seven months. P.W.1 has stated that sample was kept in room temperature i.e., 35 degree Celsius. P.W.2 in the cross- examination has stated that she had subjected the drug in question for test after six months after its receipt. She has stated that drug should have been kept in a cool place of 8 to 25 degree Celsius. P.W.2 has stated in her cross-examination that she had kept the sample in cupboard. She 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. P.W.2 has not given any valid reasons to keep the sample drug with her for more than six months from the date of receipt and for not conducting the examination or test immediately after receipt of the same. P.W.1 in the cross-examination has stated that sample drug was kept in Saroj Pharma in open place. P.W.1 has not noted the storage condition and temperature under which the sample was kept in Saroj Pharma. Where as the sample was kept in the open space in Saroj Pharma. Further P.W.2 has kept the sample in cupboard for more than six months. The complainant has failed to adduce sufficient evidence to prove that at what temperature, the Rolosol was kept in pharmacy of P.W.3 when samples was drawn. All these facts and circumstances creates doubt about that there is possibility of drug loosing its potential value at the time of collection of sample and at the time of sending it to analyst and 24 Crl.A.No.462/2016 at the time of examination by P.W.2. As such, doubt arises about the say of complainant. M.O.1 sample is the substandard drug manufactured by the accused.
32. 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. P.W.2 in his cross-examination has admitted that she did not sent copy of the protocol test to the drug inspector. From the evidence of P.W.2 and her report, it is clear that she has not followed the procedure prescribed under Rule 46 after receipt of sample drug for analysis.
33. As per the case of the complainant, he had collected the sample on 19.02.2009 and sent the said sample for analysis on 13.03.2009 and government analyst conducted the test on 14.09.2009 declaring the sample Not of standard quality. Manufacture date of sample was 06.02.2008 and expiry date was 5/2011. The complaint was filed on 10.09.2012. The complainant has failed to adduce any sufficient materials to prove beyond reasonable doubt that legal sample was given to 25 Crl.A.No.462/2016 the accused within the period of expiry date. 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 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 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. Hence, the learned trial judge has rightly observed that the prosecution against accused No.3 and 4 also do not survive.
26Crl.A.No.462/2016
34. 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 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. He 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.1 regarding drawing of sample which is alleged to have been sent to government analyst from the pharmacy of P.W.3. Further 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 six 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 27 Crl.A.No.462/2016 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. 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.3 and 4 are entitled to get benefit of doubts with respect to the commission of alleged offence. Further as it is discussed earlier, the case against accused No.1 and 2 was already came to be dismissed. The accused No.1 is main company and accused No.2 is the director, who are responsible for day today work of company. No satisfactory evidence is adduced on behalf of the complainant to prove the fact that the accused No.3 and 4 are main responsible for manufacturing of said standard drugs. There are no believable evidence to prove that the accused No.3 and 4 alone are responsible for manufacture and distribution etc. of the sample drugs drawn by the complainant from the shop of P.W.3. Under these facts and circumstances, I am of the opinion that the trial court has rightly held that the accused No.3 and 4 are entitled to get benefit of doubts. Hence, the trial court has rightly acquitted the accused No.3 and 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.
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35. Point No.4:- In view of my findings on point No.1 to 3, I proceed to pass the following:
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 12.01.2016 in C.C.No.142/2013 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 14 th day of March, 2022).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
29Crl.A.No.462/2016 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 12.01.2016 in C.C.No.142/2013 is hereby confirmed.
Send back the lower court records along with copy of this order.
LII Addl. City Civil & Sessions Judge, Bangalore.