Jammu & Kashmir High Court
R. Raghunandan & Anr. vs State & Ors. on 19 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A No.11/2006
MP No.12/2017
Date of order:- 19.08.2017
R. Raghunandan & anr. V. State of J&K & Ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the petitioner(s): Mr. C.S.Gupta, Advocate
For the respondent(s) Mr. S.S.Nanda, Sr. AAG
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Petitioners Vice President-quality ( South Asia ) M/S Glaxosmithklin Pharmaceuticals Ltd. and C & F agent respectively have invoked the inherent jurisdiction of this Court under Section 561-A Cr.P.C for quashment of a criminal complaint titled "Drug Inspector vs. Devinder Kakkar and others" against them pending before the Court of Second Additional Munsiff, Jammu.
2. In the petition, it is stated that respondent No.1 filed a criminal complaint in the Court of Chief Judicial Magistrate, Jammu which was transferred to the Court of Sub Registrar, Jammu u/s 18(2) of the Drugs & Cosmetics Act. In the complaint it was alleged that a sample of Cobadex Capsules being Batch No.M.D-439 M/s Glaxosmithklin Pharmaceuticals Ltd., works address 49 (B&C) Bommandra Industrial Area Amakal Taluk, Banglore District had having its Registered office at Mumbai (Maharashtra) was lifted for the purpose of Test 561-A No. 11/2006 Page 1 of 15 & Analysis u/s 23 of the Drugs & Cosmetics Act from the premises of respondent No.2 M/s Sudershan Trading Co., Ragunath Pura, Jammu on 06.02.2003. It is further alleged that a copy of intimation on Form 17 for the purpose of lifting of Sample along with one portion of the sealed sample was delivered to respondent No.2 and another portion of the sample was sent to Government Analyst Central India Pharmaceuticals Laboratory, Gaziabad u/s 23(4)(i) of the Act. It is also alleged that a report dated 15.01.2004 was received by respondent No.1 declaring the Drug sample i.e. Cobadex Forte Capsules Batch No. M.D-439 Sample not to be of standard quality. A copy of the Test Report of Drug Sample was sent to respondent No.2 by respondent No.1. However, respondent No.2 vide letter dated 07.02.2004 disclosed that the Drug has been purchased from respondent No.3 and after the receipt of aforesaid letter respondent No.1 further alleged that one more portion of the Drug Sample along with the copy of the report was delivered to respondent No.3. However, respondent No.3 vide letter dated 10.02.2004 submitted the sales and purchase record of the Drug and as per the record, GlaxoSmithKline Pharmaceuticals Ltd., were shown as the manufacturer of the Drug and as such respondent No.1vide his letter dated 14.02.2004 sent a copy of the test report to petitioner No.2 who is the C&F Agent of M/s Glaxosmithkline Pharmaceuticals Ltd.("the Company"). Petitioner No.2 then forwarded a copy of the said letter dated 14.02.2004 to the Company. Petitioner No.1 who is an authorized signatory of the Company vide his letter dated 01.03.2004 replied to the letter dated 561-A No. 11/2006 Page 2 of 15 14.02.2004. However, respondent No.1 did not take any cognizance of the said letter. On the basis of the Test Report dated 15.01.2004, respondent No.1 filed a complaint in question before the Court below. On filing of the complaint, the Court below took the cognizance and issued notices to the accused mentioned in the complaint i.e petitioners and respondent Nos.2&3. It is further contended that the complaint filed by respondent No.1 is an abuse of process of law and have been filed in gross violation of the statutory provisions of law and the issuance of process on the basis of the aforesaid complaint has resulted into failure of justice. The complaint being misconceived and against the provisions of law is required to be quashed on the following grounds:-
1. That under the provisions of Section 18, a complaint can be filed under the Drugs & Cosmetics Act in the Court of law if the sample of the Drug which has been taken by the concerned Drug Inspector is tested in a Government Laboratory and it has failed to pass through the various tests. The procedure which an officer who is competent to take the sample of the Drug has been prescribed in the provisions contained in Section 23 of the Drug & Cosmetic Act. After taking of the sample, it is required to be sent to the Government Analyst and the procedure governed u/s 25 of the Drugs & Cosmetics Act has to be followed in this regard. Under the provisions of law the Government Analyst to whom a sample of the Drug has been submitted for test or analysis under Sub Section (4) of Section 23 is required to give a report duly signed to the Drug Inspector in the prescribed form. On the receipt of the report, it is required that a copy of the 561-A No. 11/2006 Page 3 of 15 report shall be delivered to the person from whom sample was taken and another copy to the person whose name, address and other particulars have been disclosed u/s 18-A and the 3rd copy of the report is to be retained by the Drug Inspector for its use in any prosecution in respect of the sample.
Under Sub Section 3 of Section 25 any report singed by the Government Analyst shall be evidence of the fact stated therein and such evidence shall be conclusive unless the person whose name, address and other particulars have been disclosed u/s 80-A has within 28 days from the date of receipt of a copy of the report notified in writing the Inspector or the Court before which any proceedings in respect of the samples are pending that he intends of adduce evidence in contravention of the Report.
2. That as per the complaint, the Drug Inspector respondent No.1 took the sample of the Drug on 06.02.2003 and sent the same for testing on 08.02.2003 and the respondent No.1 received a report from the Laboratory which is dated 15.01.2004 i.e almost after one year.
3. That the Drug Inspector after the receipt of aforesaid letter dated 01.03.2004 was required under law to sent the portion of the Drug to the Director of Central Drug Laboratory however the respondent No.1 was conscious of the fact that the drug had already expired and it is of no use to send the portion of the drug retained by him to the Central Drug Laboratory.
4. That the Drug Inspector instead of sending the same filed a complaint before the Chief Judicial Magistrate against the petitioners u/s 18 read with Section 2 of the Drugs & Cosmetics Act, 194-. The Drug Inspector could not have sent the Drug to the Central Drug Laboratory in terms of 561-A No. 11/2006 Page 4 of 15 the option exercised by the petitioner because the Drug had already expired in the month of December, 2003. These all clearly shows that the report of the Government Analyst on the basis of which the complaint has been filed is not a conclusive proof of evidence and no conviction can be based on a report which is not admissible in law particularly, when the petitioner exercised their option in terms of Section 25(4) of the Drug & Cosmetic Act, to get the drug analyzed from the Central Drug Laboratory and this option was exercised within a period of 28 days the Drug Inspector was required to sent the portion of the sample for its retesting however, since the Drug had already expired the sample could not have been sent for retesting. Since the mandatory provisions of law have not been complied with as such even if the trial of the complaint allowed to be continued, even then no conviction can be based on the finding of the Government Analyst as its report is not a conclusive proof of evidence. Assuming for the sake of arguments if the evidence on the basis of which the complaint has been filed remains as it is even after the final trial even then the report of the Government Analyst cannot be treated as conclusive proof of facts mentioned in the report. The continuance of the complaint is thus abuse of process of law and the complaint as such is required to be quashed."
3. On 03.06.2006, the learned Additional Advocate General has filed objections on behalf of respondent No.1 wherein it is stated a sample of Cobadex Forte Capsules Bach No. MD-435 duly manufactured by M/s Glaxo Smith Kline Pharmaceutical Ltd was picked up on 06.02.2003 from the premises of respondent No.2 for the purpose of test 561-A No. 11/2006 Page 5 of 15 and analysis under Section 23 of Drugs and Cosmetic Act, 1940. A copy of intimation on form 17 intimating the purpose of lifting of sample along with one portion of sealed sample was delivered to respondent No.2 while another portion of the sealed sample was sent to Government Analyst Central Indian Pharmacoposis Laboratory, Gaziabad on form 18 culminating in furnishing of a detailed test report bearing No. IPL/8031/46 dated 15.01.2004 whereby the sample was confirmed as not conforming to the standard quality. As per the mandate of Section 25(2) of Drugs and Cosmetic Act, a copy of test report was sent to respondent No.2 thereby seeking certain details from him. The respondent No.2 further informed the Drug Inspector that the sample in question has been purchased by him from respondent No.3. Accordingly, as per the mandate of Sections 23 and 25 of Drugs and Cosmetic Act, one copy of the test report and drugs samples were forwarded to respondent No.3 vide communication dated 07.02.2004. In reply to this letter respondent No.3 informed that the drug had been purchased from petitioner No.2 who is C&F of M/s Glaxo Smith Kline Ltd. The Drugs Inspector furnished a copy of the said report to petitioner No.2 also vide communication dated 14.02.2004 and finally after following all the legal formalities and specified procedure, respondent No.1 presented a complaint under Section 18 read with Section 2 of Drugs and Cosmetic Act before the learned Chief Judicial Magistrate, Jammu.
4. Heard learned counsel for the parties and have perused the record.
561-A No. 11/2006 Page 6 of 155. In present case as is evident from record file of complaint it is evident that on 6.2.2003, drug sample of Cobadex Forte capsule batch no. MD -439 M/S Glaxo Smith Klin Pharmaceutical Ltd. was lifted from the premise of respondent no.2 herein for analysis in terms of section 23 of Drug and cosmetic Act and copy of intimation was given on Form 17 in this regard. In terms of section 23 (4) another portion of sample was sent to Govt. Analysis Central Indian Pharmaceutical on Form 18 vide letter dated 8.2.2003. Vide report of Govt. Analysis Central Indian Pharmaceutical dated 15.1.2004 sample was declared not be of standard quality. That in terms of section 25 (2) of Act, a copy of report was sent to accused Davinder Kour Proprietor on 4.2.2004 & record of purchase of drugs in question was called. She disclosed that drug has been purchased from petitioner respondent no.2 herein vide invoice dated 6.1.2003 vide initiation letter dated 7.2.2004. One sample was given to accused No.2 vide letter dated 7.2.2004 as provided under Sections 23 and 25 of Act along with test report for submitting of sale record and quantity of drugs stock. Accused no.2 vide letter dated 10.2.2004 submitted sale and purchase record. Thereafter on 14.2.2004 a letter was sent to accused no.3/ petitioner no.1 herein who is attorney holder / C&F agent of company along with copy of test report to give detail of sale of drugs, who submitted the same. Accused no.4 /Petitioner no.1 herein wrote a letter to complainant stating that portion of sample has not been given to him in terms of Section 23(4)(iii) of the Act. That test has not been conducted 561-A No. 11/2006 Page 7 of 15 within life of Drug. That test report has not been sent in time; and report of Analyst is incorrect
6. Accordingly, complaint was filed before CJM Jammu who transferred the sane to Sub Registrar JMIC , who took cognizance and issued notice to petitioners and other accused.
7. For deciding the controversy, Sections 23 and 25 of Act are reproduced as under:-
"23. Procedure of Inspectors Where an Inspector takes any sample of a drug [or cosmetic] under this Chapter, he shall tender the fair price thereof and may require a written acknowledgement there for.
(2) Where the price tendered under sub-
section (1) is refused, or where the Inspector seizes the stock of any drug [or cosmetic] under clause (c) of section 22, he shall tender a receipt there for in the prescribed form.
(3) Where an Inspector takes a sample of a drug ([or cosmetic] for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he willfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the- portions so sealed and marked:
Provided that where the sample is taken from premises whereon the drug [or cosmetic] is being manufactured, it shall be necessary to divide the sample into three portions only:
Provided further that where the drug [or cosmetic] is made up in containers of small 561-A No. 11/2006 Page 8 of 15 volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug 87[or cosmetic] be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same and, where necessary sealing them.
(4) The Inspector shall restore one portion or a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows : -
(i) one portion or container he shall forthwith send to the Government Analyst for test or analysis;
(ii) the second he shall produce to the Court before which proceedings, if any, are instituted in respect of the drug [or cosmetic];
and [(iii) the third, where taken, he shall send to the person, if any, whose name, address and other particulars have been disclosed under section 18A.] (5) Where an Inspector takes any action under clause (c) of section 22,-
(a) he shall use all dispatch in ascertaining whether or not the drug [or cosmetic] contravenes any of the provisions of section 18 and, if it is ascertained that the drug or cosmetic does not so contravene, forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized;
(b) if he seizes the stock of the drug [or cosmetic], he shall as soon as may be inform [a Judicial Magistrate] and take his orders as to the custody thereof;
561-A No. 11/2006 Page 9 of 15(c) without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possessor of the drug [or cosmetic], he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order under the said clause.
[(6) Where an Inspector seizes any record, register, document or any other material object under clause (cc) of sub-section (1) of section 22, he shall, as soon as may be, inform [a Judicial Magistrate] and take his orders as to the custody there S.25-Reports of Government Analysts:
i/ 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.
ii/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 18-A) and shall retain the third copy for use in any prosecution in respect of the sample. iii/ Any document purporting to be a report signed by a Government Analyst under this chapter shall be evidenced 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 as 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 contravention of the report.561-A No. 11/2006 Page 10 of 15
iv/ Unless the sample has already been tested or analyzed in the Central Drug laboratory, where a person has under sub Section (3) notified his intention of adducing evidence in contravention of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request of either of the complainant or the accused, caused 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.
v/ The cost of the 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. This is a mandatory provision of law and any departure from the aforesaid procedure is violative of the Statute. In the present case the Drug in question was lifted as a sample on 06.02.2003 from the respondent No.2 by the respondent No.1. Though on each strip of the said Drug capsules the name and address of the manufacturer was given yet no notice was issued by the respondent No.1.
8. Section 23 of Act provides procedure for lifting /taking samples of drugs. A conjoint reading of the aforesaid provisions as provided under sections 23 & 25 of Act, it is evident that these would lay certain obligations as well as provide safeguards for a person from whom a drug has been seized, sending of sample to person as per Section 18-A of the Act and for analysis or testing as Section 25(3) specifies that unless such a person controverts the correctness of the report submitted by the Government 561-A No. 11/2006 Page 11 of 15 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 in his own motion to send the fourth sample which has been disputed for fresh testing to the Director of the Central Drugs Laboratory. These are mandatory provision and there is no relaxation with regard to same on any cost.
9. In present case sample has been taken on 6.2.2003, and was sent to Govt. Analysis Central Indian Pharmaceutical on 8.2.2003. Report was obtained on 15.1.2004 stating that sample was declared not be of standard quality; copy of report was sent to accused Davinder Kour Proprietor on 4.2.2004. But date of expiry of drug was December 2003 as is evident from test report dated 15.1.2004. So when intimation was given to accused, drug was already expired. In this way a valuable right of accused persons get violated, which make the report of Analyst of no legal consequence.
10. The report which was prepared by Govt. Analysis Central Indian Pharmaceutical Ghazibad, is dated 15.01.2004, when the drug was expired. There is no mention in report as to when the drug was tested. A general line has been written on report that sample was tested within its life. But fact remains same that intimation of test report was given to accused after expiry of drug. Further, one part of sample was not sent to 561-A No. 11/2006 Page 12 of 15 petitioner (manufacturer) under Section 23(4)(iii) of the Act, which was mandatory on the part of the complainant. Further, cognizance when taken by the Court below on 25.03.2004 the life of the drug in question was already expired so Court could not send the sample of drug produced before him for testing or analyzing to the laboratory.
11. In Laborate Pharmacuticals India Ltd v. State of Tamil Nadu, AIR 2017 SC 2423, it is held as under:-
"Drugs and Cosmetics Act (23 of 1940), SS. 23(4) (iii)m, 25(4) - Re-analysis of sample - Right of accused - Non-sending of part of sample to manufacturer as reaquired under S.23(4(iii) - Court taking cognizance of complaint after almost 2 years of iling of same
- Expiry of shelf ife of drug in meantime - Failure of cout to send sample for re-analysis - Amounts to violation of valuable vested right of accused for re-analysis of sample by Central Laboratory - Proceedings liable to be quashed.
7. A reading of the provision of Sections 23(4) and 25 of the Act would indicate that in the present cae the sample having been taken from the permises of the retailer had to be divided into four potions; one portion is reqired to be sent to the Government Analyst and one to the Court and the last one to the manufacturer whose name, particulars etc is disclosed under Section 18-A of the Act. In the present case, admittedly, one part of the sample that was required to be sent to the appellant (manfacturer) under Section 23(4)(iii) of the Act was not sent. Instead, what was sent on 22nd March, 2012 was only the report of the Government Analyst. When the part of the sample was not sent to the manufacturer, the manufacturer could not have got the same analyzed even if he wanted to do so and, 561-A No. 11/2006 Page 13 of 15 therefore, it was not in a position to contest the findins of the Government Analyst. In the present case, the sample was sent to the appellant-manufacturer on 10th August, 2012 and on 13 th Sepember, 2012 the appellant had indicated its desire to have another part of the sample sent to the Central Laboratory for re- analysis. This was refused on the ground that the aforesaid request was made much after the stipulated period of 28 days provided for in Section 25(3) of the Act.
8. The cognizance of the offence(s) alleged in the present case was taken on 4 th March, 2015 though it appears that the complaint itself was filed on 28 th November, 2012. According to the appellant the cought syrup had lost shelf life in the month of November, 2012 itself. Even otherwise, it is reasonaby certain that on the dae when cognizance was taken, the shelf life of the drug in question ha expired. The Magistrate, therefore, could not have sent the sample for re-analysis by the Central Laboratory.
9. All the aforesaid facts would go to show that the valuable right of the appellant to havae the sample analyzed in the Central Laboratory has been denied by a series of defaults committed by the prosecution; firstly, in not sending to the appellant-manufactuer part of the sample as required under Section 23(4) (iii) of the Act; and secondly, on the part of the Court in taking cognizance of the complaint on 4 th March, 2015 though the same was filed on 28t November, 2012. The deay on both counds is not attributable to the appellants and therefore, the consequences thereof cannot work adversely to the interest of the appellants. As the valuable right of the accused for re-analysis vested under the Act appears to have been violated and having regard to the possible shelf life of the drug we are of te view that as on date the prosecution, if allowed to continue, would be a lame prosecution.
10. Conseqently and for the reasons alluded, we are of the view that the present would be a fit case to interdict the criminal trial against 561-A No. 11/2006 Page 14 of 15 the accused appellants. We order accordingly. Therefore, CC No. 263 of 2015 pending on the file of the XV Metropolitan Magistrate, George Towan, Chennai is hereby quashed. The appeal is allowed and the order of the High Court is set aside."
12. Consequently, when complaint was filed 24.3.2004, the drug was expired on December 2003. So no prosecution could have been launched.
13. In view of what has been discussed above, I am of the view that present case would be a fit case where this Court can exercise its inherent power vested under Section 561-A Cr.P.C. to quash the complaint titled "Drug Inspector vs. Devinder Kakkar and others" and proceedings arising thereto against the petitioners and respondent Nos.2 & 3 pending before the Court of 2nd Additional Munsiff, Jammu. Accordingly, complaint and all the proceedings arising thereto are quashed.
14. Record be sent back to the Court concerned along with copy of this order.
(Sanjay Kumar Gupta) Judge Jammu 19.08.2017 Vijay 561-A No. 11/2006 Page 15 of 15