Delhi District Court
) M/S Jackson Laboratories vs The State Of Delhi on 9 March, 2007
-1-
IN THE COURT OF SH. NARINDER KUMAR
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
Criminal revision No. 15/06 dated 20-12-06
Date of Decision: 09/03/2007
1) M/s JACKSON LABORATORIES,
Bye Pass, Majitha Road,
Amritsar,Punjab.
Through Vijay Kumar, Partner.
2) VIJAY KUMAR, PARTNER
M/s JACKSON LABORATORIES,
Bye Pass, Majitha Road,
Amritsar,Punjab.
3) RAMESH KUMAR, PARTNER
M/s JACKSON LABORATORIES,
Bye Pass, Majitha Road,
Amritsar,Punjab. .................. Petitioners
Versus
THE STATE OF DELHI
Through B. Lal, Drug Inspector,
Drugs Control Department,
Govt. of NCT of Delhi. .................. Respondent
ORDER
1. This revision petition has been filed against order dated 03/07/2006 passed by learned Addl. Chief Metropolitan -2- Magistrate, Rohini, Delhi, whereby charge for an offence u/s 18
(a)(i) punishable under section 27-d of the Drugs and Cosmetics Act, 1940, was framed in accordance with order dated 11/10/2004.
2. In brief the allegations levelled against the petitioners in complaint dated 19/08/1998 are that on 11/03/1997 the complainant-Drug Inspector besides other two samples took sample of Calcium Gluconate Injection Batch no.3014, expiry date May, 1998 manufactured by accused- petitioner no.1, but on analysis, the contents of the sample were declared to be not of standard quality as the same did not pass for test of sterility. When the petitioners challenged the analysis by the Govt. Analyst Delhi, sample was once again sent for test at appellate Laboratory, CDL Kolkata, whereupon the report received was to effect that the contents of the sample did not pass for the test of sterility.
While disposing of application filed by accused- petitioners for dropping of proceedings, learned Metropolitan Magistrate observed in order dated 11/10/2004 as under:
"A bare perusal of the test report given by CDL, Kolkata shows that drug namely Calcium -3- Gluconate Injection did not pass the sterility test and this in confirmation with the result of Govt. Analyst at CIPL, Ghaziabad. In the said report dated 27/08/1997, it has been reported that samples failed to conform to the requirement in respect of sterility and pyrogen. Thus, from both the reports, it is apparent that injection Calcium Gluconate has failed to passed test of sterility. So far as the contention of counsel for accused is concerned that only two reports were sent to him and the third report was not sent to him, the same is a matter of evidence and it has to be proved by the accused that they did not receive the third report in respect of injection Calcium Gluconate and it is beyond comprehension that complainant would withheld the third report when he is sending the two reports to the accused persons. Even the contention of accused that he replied to the report of DI within 24 hours is again challenged by the complainant stating that as per diary no. 8919, the letter allegedly sent on 28/02/1998 has been -4- received on 09/03/1998. Further, even at the time of sending of the sample for retesting at CDL, it was known that drug has expired and even as per the report of CDL, Kolkata, drug has failed to pass sterility test."
3. In the revision petition, it has been alleged that one of the three reports i.e. pertaining to injection calcium gluconate was not supplied to the petitioner; that the petitioner, within stipulated period of 28 days showed its intention of getting the contents of the samples re-analysed/re-attested and as such the impugned order passed by learned Trial Metropolitan Magistrate is liable to be set aside.
4. It has also been alleged in the petition that in the given circumstances petitioner can not be made to suffer when the Director, CDL, Kolkata, did not give its opinion because of expiry date of the sample. In the petition, reference in this respect has been made to the decision in case titled as Ashok Suresh Chand Vs. State of Maharashtra, 2002 Drug cases
114.
5. On the other hand, it has been argued by Sh. K.C. Aggarwal , Drug Inspector (from Legal Cell), assisted by Sh. B. -5- Lal, the complainant, that vide letter dated 28/01/1998, the petitioner was duly informed about the report given by Government Analyst, Delhi, in respect of all the three items, but the petitioner did not reply thereto notifying within stipulated period, its intention of conclusive evidence in controversion of the report of the Government Analyst, vide letter dated 28/02/1998 which was received on 09/03/1998 i.e. beyond the prescribed period of 28 days from the receipt of copies of reports of the Govt. Analyst and as such the learned Trial Magistrate rightly found prima facie case against the petitioner, and there is no illegality or irregularity in the impugned order dated 11/10/2004 or in the framing of notice on 03/07/2006 in terms of the said order.
6. Trial court record would reveal that complainant annexed to the complaint letter dated 28/01/1998 vide which the petitioner-accused was informed of the analysis of the samples and all the three test reports are purported to have been sent to the petitioner-accused by way of enclosures. It is a matter of evidence to be led by the accused-petitioner that only two, out of the three reports, were received. But prima facie it appears that all the three reports were sent by the -6- complainant to the accused-petitioner vide letter dated 28/01/1998. When accused-petitioner has come forward with the plea that letter notifying its intention of conclusive evidence in controversion of all the reports of Govt. Analyst was sent to the complainant by registered post on 28/01/1998, it is for the accused-petitioner to lead evidence in support of this plea. But prima facie from the perusal of receipt no. 8919 dated 09/3/1998 on this letter dated 28/02/1998, it appears that the same was received in the office of the complainant on 09/03/1998. The stipulated period as provided u/s 25 (3) of the Act is 28 days. Prima facie it appears that the accused- petitioner did not apply within the statutory period of 28 days. Accused-petitioner, cannot take any advantage at this stage from the decision in M/s Dueful Laboratory Vs. State of Rajasthan & Ors. as the case is distinguishable on facts. In State of Haryana Vs. Brij Lal Mittal & Ors. reported in 1998 Drug cases 11, Hon'ble Supreme Court while dealing with provisions of sub section (4) of section 25 of the Act observed in the manner as:
"Sub-Section (4) makes it abundantly clear that the right to get the sample tested by -7- Central Drugs Laboratory [So as to make its report override the report of analysis] through the Court accrues to a person accused in the case if he had earlier notified in accordance with sub- section (3) his intention of adducing evidence in controversion of the report of the Govt. Analyst. To put it differently, unless requirement of sub- section (3) is complied by the person concerned he can not avail of his right under sub-section (4)."
7. Furthermore, in the given facts and circumstances when the Director CDL, vide report dated 24/07/1998 remarked that no opinion could be given regarding quality of the sample, sample having been received and tested after the date of expiry, accused-petitioner can-not take any advantage nor it adversely affects the case of the complainant, since the sample of calcium guloconate injection did not pass test of sterility. Therefore, neither the impugned order dated 11/10/2004 can be said to be suffering from any illegality or irregularity nor serving of the notice in pursuance thereof upon the accused- -8- petitioner by learned Additional Chief Metropolitan Magistrate on 03/07/2006, can be said to be illegal or irregular.
8. In view of the above discussion, this revision petition, being without any merit, is liable to be dismissed. I order accordingly. Trial court record be returned for being laid before learned Additional Chief Metropolitan Magistrate on 26/03/2007.
File of revision petition be consigned to record room.
Announced in open court today on March 9th, 2007 [NARINDER KUMAR] ASJ: FTC: Rohini 09/03/2007