Delhi District Court
Dee Pharma Ltd. vs . State/Drug Inspector on 4 July, 2018
Dee Pharma Ltd. Vs. State/Drug Inspector
CR no. 4/15
04/07/2018
Order on Revision
1. Vide this order, I would dispose of this revision u/s 397
CrPC filed by the revisionists challenging the impugned order
dated 10/8/2015 passed by the court of Ld. MM01, North
West, Rohini Courts, Delhi in Criminal Complaint no. 4/4
whereby the Ld. MM was pleased to frame charges against
petitioners.
2. Notice of this revision petition was issued to the
respondent/State through Sh. P. Arivazhagan Drug Inspector
and Sh. K.R. Chawla, Asst. Drug Controller who accepted the notice.
3. Before I come to the contention of both the sides, it would be expedient if I discuss the facts of the case in brief.
4. DI Sh. P. Arivazhagan had filed a complaint u/s 18 (a) (i) r.w.s. 27 (c) and 27 (d) of Drugs and Cosmetics Act, 1940 against 10 persons including M/s Dee Pharma Ltd. alleging that on 6/6/1995 complainant along with the witnesses inspected the premises of govt. medical stores depot, CHTO Workshop building, behind Qutab hotel, New Delhi on 6/6/1995.Sh. P.B.Mandal, Asst. Depot Manager of Govt. Medical Stores Depot, New Delhi was present at the time of inspection. The said depot was found stocking and exhibiting for distribution various drugs Dee Pharma Ltd. Vs. State/Drug Inspector, CR no. 4/15 Page 1 of 8 including the drug framycetin cream 1% w/w , B. No. 512, manufactured date 12/94, D/S - 11/96, Mfd. by M/S Dee Pharma Ltd. A3/2 Industrial Area, Sikandarabad, Distt. Buland Shehar, Uttar Pradesh and the complainant took a sample of the said drug as per procedure laid down in the Act and rules thereunder and one sealed sample portion of the above referred drug was forwarded to the govt. analyst, CDL Calcutta for test and analysis as per procedure laid down under the Act and in terms of the analysis report the said drug was found to be of sub standard quality and it was also found to be spurious u/s 17B
(d) of Drugs and Cosmetics Act as the drug in question was found to have Neomycin C in excess of the limit prescribed and hence the present complaint.
5. Vide order dated 10/8/2015 the trial court framed charge against all the petitioners u/s 18 (a) (i) /27 (c) and 18 (a)
(i)/27 (d) of the Drugs and Cosmetic Act, 1940 and posted the matter for post charge evidence. Petitioners are aggrieved with the said order and hence the present revision petition.
6. It is argued by Ld. Counsel for the petitioners that the order of framing of charge has been passed mechanically by Ld. Trial court without appreciation of the evidence and the material on record. The points highlighted by the ld. Counsel for the petitioner in this regard are as under:
(i) It is argued that Ld. Trial court failed to appreciate that the report of the government analyst does not confirm to the provisions of Section 25 (ii) of the Act as the report, relied upon by the prosecution, does not bear the signature of the govt. analyst as is the mandate and hence the said document Dee Pharma Ltd. Vs. State/Drug Inspector, CR no. 4/15 Page 2 of 8 does not have any evidentiary value and it cannot be accepted as a piece of evidence, that too, conclusive by initiating prosecution against the petitioners. Reliance is placed on State of H.P. Vs. Nand Kishore and ors. 2011 (2) Drugs Cases (DC) 308.
(ii) It is further argued that that the govt. analyst was not appointed as per the procedure prescribed under section 20 of the Act as nothing was brought on record to show that the govt. analyst, except of a notification, had the sanction and approval to carry on the test /analysis. It is pointed out that there is nothing on record to show that the govt. analyst fulfilled the conditions, being mandatory in nature, or being designated as govt. analyst and the appointment of govt.
analyst suffers from inherent defect for want of compliance of the procedure prescribed under the Act. Reliance is placed on State of Maharashtra vs. R.A. Chandawarker and ors. 1999 Crl. L.J. 449.
(iii) It is further argued that the report submitted in form 13 under the name of Director CDL suffers from material irregularity as the report by Director CDL must have been furnished in form 2, as prescribed under Rule 6. It was further pointed out that the respondent directly sent the sample for analysis to CDL, thereby bypassing the procedure as suggested under Section 25 (1) of the Act thereby compromising the inalienable rights of the petitioners.
(iv) It was further argued that the petitioner company, within the time prescribed, duly notified the Inspector, in terms of Section 25 (3) of the Act, its dissension on the contents of the report and conveyed its intention to impugn its legality and propriety before the concerned authority and hence the Dee Pharma Ltd. Vs. State/Drug Inspector, CR no. 4/15 Page 3 of 8 respondent was under statutory obligation, as visualised under 25 (4) of the Act, to send the same for analysis at CDL and having failed in doing so, it vitiates the entire prosecution.
(v) It is further argued that there is total non compliance of Section 46 of the Drug and Cosmetics Rules, 1945 and the report of govt. analyst does not throw any light on the procedure adopted by it for analysing the drug, which is mandatory in nature, and erroneously came to the conclusion that the sample was not of standard quality and further that it was spurious u/s 17B (d) of the Act. Reliance is placed on Dharam Deo Gupta vs. State AIR 1958 Allahabad 865.
(vi) Lastly it is argued that when an offence under this Act is committed by a company, only such person who at the time when the offence was committed, was incharge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and not each and every official of the company and the drug department did not consider this issue properly before filing the present complaint and hence this prosecution cannot lie against other officials except against the company and its M.D.
7. Per contra, Sh. K.R.Chawla, Asst. Drug Controller for the respondent/State has vehemently opposed this revision petition.
8. After hearing both the sides, at the outset, it may be said that, this revision petition has no merit and the same is liable to be dismissed.
Dee Pharma Ltd. Vs. State/Drug Inspector, CR no. 4/15 Page 4 of 89. Dr. M.K. Majumdar, Govt. Analyst and Director, CDL, Calcutta conducted the test/analysis of the sample in question sent by the complainant vide its report dated 13/7/1995 and he sent a copy of the same under his signature to Sh. L.L. Aggarwal, the then Drug Controller, Delhi with his endorsement dated 24/7/1995 and this original copy was filed by the complainant at the time of filing the complaint. During arguments, it was pointed out on behalf of the respondent that Dr. M.K. Majumdar had also sent them a signed copy of the report dated 13/7/1995 but inadvertently the same could not be filed with the complaint. It was further contended that the complainant would move appropriate application before the concerned court seeking permission to file the document. In my view, only because the signed copy of the report of the expert has not been filed by the complainant, especially when the original signed copy of report of the said Govt. Analyst is in possession of the complainant, the present prosecution, cannot be thrown at the initial stage. It is only an irregularity which can be cured by the complainant in due course.
10. The complainant has filed copy of notification dated 30/1/1980 in the complaint showing that Dr. M.K. Majumdar Dy. Director, CDL, Calcutta was appointed as Govt. Analyst for the Union Territory of Delhi. The question that the said expert possessed prescribed qualifications or not to be a Govt. Analyst is a matter of trial and the said expert can be cross examined by the petitioners when he would appear as a witness on behalf of the complainant. If he was appointed as a Govt. Analyst by the government through notification, there is a presumption that he possessed prescribed qualifications to be appointed as Govt.
Dee Pharma Ltd. Vs. State/Drug Inspector, CR no. 4/15 Page 5 of 8Analyst.
11. In my view, there is no merit in the contention of Ld. counsel for the petitioners that the report submitted in Form no. 13 under the name of Director CDL, suffers from material irregularity as the report of Director CDL has to be furnished in Form no. 2, as prescribed under Rule 6 of the Drugs and Cosmetic Rules. In the present case Dr. M.K. Majumdar who carried out the test and the analysis was the govt. analyst and Director CDL, Calcutta. We cannot lose sight of the fact that Dr. M.K. Majumdar besides being the Director of CDL, Calcutta was also Govt. Analyst and Rule 46 of the Drugs and Cosmetics Rule, 1945 clearly provides that after test or analysis the Govt. Analyst has to furnish its report in triplicate in Form 13 and hence there is no irregularity as alleged.
12. The question arises whether the sending of the sample drug for analysis directly to CDL, anyway deprived the petitioners of any statutory right conferred by the Act. In my view, the answer is No. This question directly came before Hon'ble Supreme Court of India in Ram Shankar Mishra vs. State of UP AIR 1979, SC 727. While discussing the provision of the Act, Hon'ble Supreme Court held in the said case that Section 25 (4) is one method of sending the sample drug for analysis to the Director of the CDL. The other method is by the Drug Inspectors sending it direct as contemplated under the first part of Section 25 (1). It is significant that sub section (4) of Section 25 starts with the words "unless the sample had already been tested or analysed in the Central Drugs Laboratory". These words clearly indicate that apart from the mode prescribed in Dee Pharma Ltd. Vs. State/Drug Inspector, CR no. 4/15 Page 6 of 8 Section 25 (4), the sample can be sent for analysis to the Central Drugs Laboratory.
13. In the instant case the sample drug was sent directly to the CDL for analysis and the drug authorities, in view of Ram Shankar Mishra (Supra) were fully competent to do so. Further when the report had come from CDL Calcutta, there was no question of sending it again to the same laboratory, after having received the reply of the petitioners in term of Section 25 (3) of the Act conveying its intention to impugn its legality and propriety before the concerned authority.
14. The test or analysis report of Dr. M.K. Majumdar, Govt.
Analyst clearly mentions that the sample drug was tested and analysed through HPLC method and he came to the conclusion that the said sample did not give positive test for framycetin. Hence it would not be right to allege that the govt. analyst in its report did not throw any light on the procedure adopted by him for analysing the drug. He can be cross examined by Ld. Counsel for the petitioner at appropriate stage regarding the details of the method applied by him for coming to the said conclusion.
15. The last contention raised by Ld. Counsel for the petitioner that all the petitioners could not have been arrayed as an accused by the complainant as it cannot be said that they were incharge of and were responsible to the company for the conduct of the business of the company is also specious argument. In the circumstances of the case, it is a matter of trial, and to be decided by the trial court in the final stage.
Dee Pharma Ltd. Vs. State/Drug Inspector, CR no. 4/15 Page 7 of 816. It is not out of place here to state that, at the stage of consideration of charge, the court is not required to assess, evaluate and to weigh the prosecution evidence in a criminal case as it is done at the final stage. It is not open for this Court to sift and weigh the evidence as if a mini trial is being conducted. A roving and fishing inquiry is impermissible and it is sufficient if the prosecution is able to show prima facie the commission of offence and the involvement of the accused persons.
17. In view of the above, this revision has no merit and the same is dismissed.
18. Copy of this order be sent to the Ld. MM for information and compliance. TCR be returned back.
19. File of this revision be consigned to Record Room.
Announced in the open court (Deepak Garg)
on dated 4th July, 2018 ASJII, NorthWest,
Rohini
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