Allahabad High Court
Dr. S. Mohan And Others vs State Of U.P. on 6 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2896
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 9712 of 2003 Applicant :- Dr. S. Mohan And Others Opposite Party :- State of U.P. Counsel for Applicant :- Kamal Krishna Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Satyavrath, learned counsel for applicants and learned A.G.A. for State of U.P.
2. Applicants have invoked inherent jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash order dated 05.08.1998 whereby non-bailable warrant has been issued against applicants as well as further proceedings of Complaint dated 20.07.1998 registered as Case No. 2063 of 1998, under Sections 18(a)(i)/27 of Drugs and Cosmetics Act, 1940 (hereinafter referred to as "Act, 1940"), pending in the Court of learned Chief Judicial Magistrate, Jaunpur.
3. It is evident from record that alleged sample of Paracetamol was collected on 03.04.1994 from Ajanta Medical Agencies, Jaunpur and it was examined on 28.10.1995. In the Report of Government Analyst, it is mentioned that said sample is liable to expire in October, 1995.
4. It is contended by learned counsel for applicants that there is no compliance of Section 25(3)(4) of Act, 1940 since copy of Report of Government Analyst was never supplied to applicants and averments in this regard, have been made in paras - 11 and 12 of the affidavit filed in support of application which read as under :-
"11. That it is submitted that in the instant case, there is averment itself in paragraph nos. 15 and 16 of the complaint that notices were sent to the accused applicant but the same was received back unserved. It is submitted with vehemence that it is the prosecution case that none of the applicants was ever served with the notice regarding the fact that the sample is substandard and in such circumstances the applicants could not exercise the statutory rights as enshrined in sub-section (3)(4) of Section 25 of the Drugs and Cosmetics Act.
12. That it is submitted that the applicants never received any notice and the applicants were never intimated that the samples which was taken was found sub-standard and in these circumstances applicants were deprived to exercise their statutory rights as enshrined in Section 25(3)(4) of Drugs and Cosmetics Act."
5. Despite time having been granted as long back as on 20.11.2003, respondents have not filed any counter affidavit till date and, therefore, this Court has no option but to accept the pleadings of applicants that impugned order has been passed in utter violation of principle of natural justice.
6. Even otherwise, service of notice along with Report of Government Analyst upon accused was necessary to be proved by Prosecution so as to prove compliance of Section 25(3)(4) of Act, 1940 and in absence of such evidence, proceedings are vitiated in law. Similar aspect in respect of Section 13(2) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "Act, 1954") has been considered by Supreme Court in Vijendra Vs. State of U.P. and others (Criminal Appeal No. 1167 of 2019) (Arising out of S.L.P. (Criminal) No. 4314 of 2015) decided on 31.07.2019. In para 15 of judgment, Court has said as under:
"The very purpose of furnishing such report is to enable the Accused to seek for reference to the Central Food Laboratory for analysis if the Accused is dissatisfied with the report. Such safeguard provided to the Accused Under Section 13(2) of the Act is a valuable right. In that view even if the despatch of the report on 07.04.1980 is taken as substantial compliance though it is beyond the period of 10 days from 18.03.1980 i.e., the date on which the prosecution was lodged, in the absence of there being proof of delivery of the report to the Accused; in the instant facts the valuable right available to the Accused/Appellant to seek for reference within the period of 10 days stands defeated. In that circumstance when the Appellant/Accused is made to suffer the penal consequences, it will have to be construed strictly. In the facts and circumstances of this case, since as already noticed above the report of the Analyst has not in fact been served on the Appellant and the mere despatch of the report as per the statement of PW-2 was not sufficient." (emphasis added)
7. Learned AGA also could not dispute about the fact that non service of Report of Government Analyst upon applicants.
8. In view thereof, application is allowed. Impugned order dated 05.08.1998 as well as further proceedings of Complaint dated 20.07.1998 registered as Case No. 2063 of 1998, under Sections 18(a)(i)/27 of Drugs and Cosmetics Act, 1940 (hereinafter referred to as "Act, 1940"), pending in the Court of learned Chief Judicial Magistrate, Jaunpur, are hereby set aside.
Order Date :- 6.12.2019 Siddhant Sahu