Rajasthan High Court - Jodhpur
M/S Parkin Laboratories vs State Of Rajasthan on 8 March, 2022
Author: Sandeep Mehta
Bench: Sandeep Mehta
(1 of 11) [CRLMP-640/2021]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 640/2021
1. M/s Parkin Laboratories, E/53, South Side Of Gt Road,
Ghaziabad (Up) Through Partner Firm Sh. Rk Tyagi Son Of
Late Shri Dvs Tyagi, Aged About 63 Years, R/o 7/17,
Chiranjeev Vihar, Ghaziabad (UP)
2. R.K. Tyagi S/o Late Shri Dvs Tyagi, Aged About 63 Years,
Partner Of Firm M/s Parkin Laboratories, E/53, South Side
Of Gt Road, Ghaziabad (Up), R/o 7/17, Chiranjeev Vihar,
Ghaziabad (Up).
3. P.K. Sharma S/o Late Shri D.d. Sharma, Aged About 63
Years, Partner And Manufacturing Chemist Of M/s Parking
Laboratories, E/53, South Side Of Gt Road, Ghaziabad
(Up), R/o E/53, South Side Of Gt Road, Ghaziabad (Up),
R/o R/6-130, Raj Nagar, Ghaziabad.
4. Brij Pal Singh S/o Late Prem Singh, Aged About 65 Years,
Partner Of M/s Parkin Laboratories, E/53, South Side Of
Gt Road, Ghaziabad (Up), R/o Vpo Lodana, District Buland
Shahar (UP).
----Petitioners
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Petitioner(s) : Mr. Mridul Jain, through VC
For Respondent(s) : Mr. Mool Singh Bhati, through VC
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order Order pronounced on : 08/03/2022 Order reserved on : 01/02/2022 The instant petition under Section 482 CrPC has been preferred by the accused petitioners for assailing the order dated 19.01.2021 passed by the learned Sessions Judge, Banswara rejecting the Criminal Revision Petition No.26/2019 filed by the petitioners and affirming the orders dated 13.05.2019 and 03.07.2019 passed by the learned Additional Chief Judicial (Downloaded on 08/03/2022 at 08:48:38 PM) (2 of 11) [CRLMP-640/2021] Magistrate, Banswara in Criminal Regular Case No.248/2010, whereby charges were framed and read over to the petitioners for the offences punishable under Sections 27(b)(i), 27(c) and 27(d) of the Drugs and Cosmetics Act for violation of the provisions of Sections 18(a)(i), 18(a)(vi), 18(b) read with Sections 16, 17, 17- A, 17-B of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act of 1940'). The petitioners through this petition have also prayed for quashing of the proceedings of the criminal case referred to supra.
Brief facts relevant and essential for disposal of the petition are noted hereinbelow :-
On 30.07.1997, the Drug Inspector, Banswara, collected sample of drug named Oxytetracycline Capsule I.P. 250 gm. Batch No.CP 14 manufactured by the petitioner No.1-Firm from the vendor named Shubham Medical & General Store, Nai Aabadi Badodiya. One part of the drug sample was forwarded to the Public Analyst, C.I.P.L., Ghaziabad, from where a report dated 27.02.1998 was received to the effect that the same did not conform to the standards laid down under the Act and Rules. The Drug Inspector forwarded a letter dated 15.09.1998 alongwith the analysis report and one part of the sample to the respondent 3 firm M/s. Associated Pharma Traders Pvt. Ltd. requiring it to furnish the details of purchase/procurement/sale of the drug in question. In response, the firm intimated the Drug Inspector that the drug in question had been purchased from Crown Pharmaceuticals through invoices dated 07.06.1997, 10.07.1997 and 09.10.1997 respectively. After receiving this information, the Drug Inspector forwarded a letter dated 05.10.1998 to M/s. Crown Pharmaceuticals requiring it to provide details about procurement (Downloaded on 08/03/2022 at 08:48:38 PM) (3 of 11) [CRLMP-640/2021] of the drug and stocks etc. No reply was received in the scheduled period, on which a reminder was issued and the firm, replied vide letter dated 02.11.1998 that the drug in question had been procured from the manufacturer M/s. Parkin Laboratories, Ghaziabad vide invoices dated 02.06.1997, 07.07.1997 and
04.10.1997. Thereupon, the Drug Inspector proceeded to issue a letter dated 06.11.1998 to the manufacturer firm, ie. the petitioner No.1, asking it to provide the details of the manufacture of drug, stock, sale etc. On no reply forthcoming, a reminder dated 30.11.1998 was issued. The Manufacturer, in the meantime, seems to have received the earlier intimation and sent a letter dated 27.11.1998 to the Drug Inspector, conveying that it was not satisfied with the report of the C.I.P.L., Ghaziabad and requested that the preserved part of the drug sample should be got reanalyzed through the Central Drugs Laboratory, Calcutta. The Drug Inspector in turn, replied to the manufacturer by letter dated 15.12.1998 that it may appear before the Court of the Chief Judicial Magistrate, Banswara and file an application under Section 25(3) of the Act of 1940 to get remainant sample portion analyzed from the Central Drugs Laboratory. It is alleged that no application in the Court came to be filed by any of the proposed accused for leading evidence in contradiction to the report of the C.I.P.L. Finally, the complaint came to be filed against the petitioners herein, the vendor firm and the distributor firm and their representatives in the Court of the Chief Judicial Magistrate Banswara on 10.07.2003. Pre-charge evidence was recorded, whereafter charges were framed against the petitioners and the co-accused persons by order dated 13.05.2019 and were read over to them on 03.07.2019. The accused petitioners challenged (Downloaded on 08/03/2022 at 08:48:38 PM) (4 of 11) [CRLMP-640/2021] the order framing charge dated 13.05.2019 by filing a revision, which was dismissed by the learned Sessions Judge, Banswara vide order dated 19.01.2021. Being aggrieved of the aforesaid two orders, the petitioners have approached this court through the instant petition under Section 482 CrPC.
Mr. Mridul Jain, learned counsel representing the petitioners, vehemently and fervently urged that allowing prosecution of the petitioners in this case is absolutely unwarranted because their mandatory right to have the second sample of the drug re-examined through Central Drugs Laboratory has been breached as the complaint came to be filed in the court concerned on 10.07.2003, by which time the shelf life of the drug had expired by almost four years and thus, the petitioners were deprived of their indefeasible right to lead evidence in contradiction of the Drug Analyst's report. He further urged that there is no allegation in the complaint or in the statements of the witnesses examined during pre-charge evidence that the petitioners Nos.2, 3 and 4 were in any manner responsible for the day to day affairs of the manufacturing firm/petitioner No.1 and hence, trial of these accused is vitiated. He, thus, implored the court to accept the miscellaneous petition, quash the impugned orders and also all proceedings sought to be taken against the petitioners in furtherance thereof.
Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the petitioner's counsel. He contended that no sooner the petitioner firm expressed desire of leading evidence in contradiction to the report of the Central Drugs Laboratory by letter dated 27.11.1998, the Drug Inspector responded by letter (Downloaded on 08/03/2022 at 08:48:38 PM) (5 of 11) [CRLMP-640/2021] dated 15.12.1998 that appropriate application for reanalysis of the sample through the Central Drug Laboratory be filed in the court of CJM, Banswara. If at all the petitioners were desirous of leading evidence in contradiction to the report of the Public Analyst, then they were required to file a timely application under Section 25(4) of the Act of 1940 in the court of the CJM, Banswara. However, the petitioners made no effort in this direction. Since no such application was filed, the petitioners cannot claim that their right of reanalysis of the second sample through the Central Drugs Laboratory has been infringed. On these grounds, learned Public Prosecutor sought dismissal of the petition.
I have given my thoughtful consideration to the submissions advanced at bar and have gone through the material available on record. It is not in dispute that the drug sample was collected on 30.07.1997. The C.I.P.L., Ghaziabad examined the sample and issued its report dated 27.02.1998 concluding that the drug did not conform to the standard quality as defined in the Act of 1940 and the Rules framed thereunder. The expiry date (shelf life) of the drug, as per the report of the C.I.P.L. was October 1999. The petitioner No.1 manufacturer was, for the first time intimated by the Drug Inspector regarding this report vide letter dated 06.11.1998 and replied by letter dated 27.11.1998, in which it was clearly conveyed that the report of the C.I.P.L. was not acceptable and that the second sample should be sent for analysis the Central Drugs Laboratory, Calcutta. It is relevant to state here that the Drug Inspector did not forward a part of the sample to the petitioner No.1 as mandated by Section 23(4) (iii) of the Act of 1940. At para No.7 of this letter, it was clearly conveyed to the (Downloaded on 08/03/2022 at 08:48:38 PM) (6 of 11) [CRLMP-640/2021] Drug Inspector that arrangement be made for transmitting the remaining sample of the drug to the Central Drugs Laboratory, Calcutta. The Drug Inspector responded by letter dated 15.12.1998 conveying to the firm that an application under Section 25 of the Act of 1940 should be filed in the Court of the CJM, Banswara. However, admittedly no proceedings had been instituted in the said court by that time and thus, there was no forum to which such application could have been preferred.
Sections 23(4), 25(3) and 25(4) of the Act of 1940, which are germane to the controversy at hand are reproduced hereinbelow for the sake of ready reference.
"23(4)(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.
25(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence to 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 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 controversion of the report.
25(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in (Downloaded on 08/03/2022 at 08:48:38 PM) (7 of 11) [CRLMP-640/2021] its discretion at the request either of the complainant or the accused, cause the sample of the drug or cosmetic produced before the Magistrate under subsection (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 7 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."
As per Section 23 (4) (iii) of the Act, part of the drug sample has to be provided to the manufacturer as well. As per the averments made in the complaint, admittedly this requirement was not complied with. As per the Section 25(3) of Act, a person to whom the intimation has been sent by the Drug Inspector (in the present case the petitioner No.1 herein) may within 28 days of the receipt of a copy of the report notify 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.
As is clear from the facts narrated above, intimation in this regard had been given by the petitioners to the Inspector by letter dated 27.11.1998 and admittedly, by that date, proceedings had not been instituted in any court regarding the drug sample in question. As per sub-clause (4) of the Section 25 of the Act, the court may, on its own motion or in its discretion, at the request either of the complainant or the accused, cause the sample of the drug produced before it under sub-section (4) of Section 23 to be sent for test or analysis to the Central Drugs Laboratory. Thus, for the court to exercise powers of forwarding the second sample of drug to the Central Drugs Laboratory, prior institution of (Downloaded on 08/03/2022 at 08:48:38 PM) (8 of 11) [CRLMP-640/2021] proceedings is sine-qua-non as per Section 25(3) of the Act of 1940. As per this provision, the Inspector has to produce the second sample in the court before which the proceedings are instituted in respect of the drug.
On going through the complaint filed by the Drug Inspector, it is clear that the second sample of the drug was not deposited in the court before its expiry date because the complaint itself came to be filed in the year 2003. By that time, the drug sample in question was 4 years past its expiration date. If at all an effective opportunity of getting the second sample examined was to be provided to any accused being prosecuted in the case, it was absolutely essential for the Drug Inspector to have filed the complaint in the court concerned before the expiry date of the drug in question. However, as is evident, the complaint came to be filed in the year 2003, whereas the shelf life of the drug was expired in October 1999. As per Section 25(4) of the Act of 1940, the second sample of the drug can be sent to the Central Drugs Laboratory on request either of the complainant or the accused. The proposed accused, i.e. the manufacturing firm, had already intimated the Drug Inspector of its intention to have the second drug sample reanalyzed through Central Drugs Laboratory. Admittedly, a part of the drug sample was not sent to the manufacturing firm with the report of CIPL. Thus, the Drug Inspector could have presented the preserved part of the sample in the court concerned with a request to send the same for reanalysis to the Central Drugs Laboratory. However, no such action was taken by the Drug Inspector manifestly because no proceedings had been filed in the Court till then. Hence, it is clear that the accused petitioners were denied the opportunity to get (Downloaded on 08/03/2022 at 08:48:38 PM) (9 of 11) [CRLMP-640/2021] the second sample of the drug re-analyzed through the Central Laboratories in terms of Section 25 (3) and (4) of the Act of 1940. Non sending of a part of the sample to the manufacturer is clearly in contravention of the requirement as mentioned in Section 23(4)
(iii) of the Act of 1940. In the case of Laborate Pharmaceuticals India Ltd. Vs. State of Tamil Nadu [(2018) 15 SCC 93] the Hon'ble Supreme Court considered this precise issue and observed as below :-
"7. A reading of the provisions of Section 23(4) and 25 of the Act would indicate that in the present case the sample having been taken from the premises of the retailer had to be divided into four portions; one portion is required to be given to the retailer; one portion is required 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 18A of the Act. In the present case, admittedly, one part of the sample that was required to be sent to the appellant (manufacturer) 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 analysed even if he wanted to do so and, therefore, it was not in a position to contest the findings of the Government Analyst. In the present case, the sample was sent to the appellant- manufacturer on 10th August, 2012 and on 13th September, 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.(Downloaded on 08/03/2022 at 08:48:38 PM)
(10 of 11) [CRLMP-640/2021]
8. The cognizance of the offences alleged in the present case was taken on 4th March, 2015 though it appears that the complaint itself was filed on 28th November, 2012. According to the appellant the cough syrup had lost shelf life in the month of November, 2012 itself. Even otherwise, it is reasonably certain that on the date when cognizance was taken, the shelf life of the drug in question had expired. The Magistrate, therefore, could not have sent the sample for reanalysis by the Central Laboratory.
9. All the aforesaid facts would go to show that the valuable right of the appellant to have the sample analysed in the Central Laboratory has been denied by a series of defaults committed by the prosecution; firstly, in not sending to the appellant-manufacturer 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 4th March, 2015 though the same was filed on 28th November, 2012. The delay on both counts 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 reanalysis vested under the Act appears to have been violated and having regard to the possible shelf life of the drug we are of the view that as on date the prosecution, if allowed to continue, would be a lame prosecution.
10. Consequently and for the reasons alluded we are of the view that the present would be a fit case to interdict the criminal trial against the accused appellants. We order accordingly. Therefore, C.C.No.263 of 2015 pending on the file of the XV Metropolitan Magistrate, George Town, Chennai is (Downloaded on 08/03/2022 at 08:48:38 PM) (11 of 11) [CRLMP-640/2021] hereby quashed. The appeal is allowed and the order of the High Court is set aside."
Likewise in the case of Medicamen Biotech Ltd. & Ors. Vs. Rubina Rose [AIR 2008 SC 1939], Hon'ble Supreme Court qashed the proceedings of the complaint filed under the Act of 1940, where the complaint came to be filed just a month before the expiry of the shelf life of the drug.
The prosecution in the present case has flouted the mandatory requirements of Section 23(4)(iii) of the Act of 1940 by not providing one part of the sample to the manufacturer, i.e. the petitioner No.1 herein. Furthermore, as the complaint was filed well after expiry of the shelf life of the drug, the indefeasible right of the proposed accused to get the second sample of the drug examined through the Central Drug Laboratory as per Section 25(4) of the Act of 1940 has been frustrated.
As a consequence of the above discussion, I am of the firm opinion that allowing continuance of the proceedings of the complaint supra would be nothing short of gross abuse of process of court. Accordingly, the impugned complaint filed in the Court of the Chief Judicial Magistrate, Banswara on 10.07.2003 (Regular Criminal Case No.248/2010 pending in the Court of Additional Chief Judicial Magistrate, Banswara) and all proceedings sought to undertaken in furtherance thereof including the orders dated 13.05.2019 and 03.07.2019 are quashed.
The miscellaneous petition is allowed in these terms.
(SANDEEP MEHTA),J 6-Pramod/-
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