Andhra Pradesh High Court - Amravati
M.V.Srinivasa Rao, Himachal Pradesh., vs State Of Ap., Rep. Pp., And Anr., on 18 July, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
CMR, J.
Crl. P. No.3948 of 2013
1
* THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
+ CRIMINAL PETITION No.3948 of 2013
% Dated 18-07-2019.
# M.V. Srinivasa Rao, Prop:M/s.Essel Pharma, Solan
..... Petitioner
Vs.
$ State of Andhra Pradesh
Rep. by its Public Prosecutor,
High Court of Andhra Pradesh & Anr.
..Respondents
! Counsel for the petitioner : Sri Ch. Dhanamjaya
^ Counsel for the respondents : Public Prosecutor
<GIST:
> HEAD NOTE:
? Cases referred
1. (2008) 3 SCC 20
CMR, J.
Crl. P. No.3948 of 2013
2
IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH
CRIMINAL PETITION No.3948 OF 2013
# M.V. Srinivasa Rao, Prop:M/s.Essel Pharma, Solan
..... Petitioner
Vs.
$ State of Andhra Pradesh
Rep. by its Public Prosecutor,
High Court of Andhra Pradesh & Anr.
..Respondents
JUDGMENT PRONOUNCED ON: 18-07-2019
* THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
1. Whether Reporters of Local newspapers ----
may be allowed to see the Judgments?
2. Whether the copies of judgment may be marked -Yes-
to Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to see the -Yes-
fair copy of the Judgment?
JUSTICE CHEEKATI MANAVENDRANATH ROY
CMR, J.
Crl. P. No.3948 of 2013
3
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Criminal Petition No.3948 of 2013
ORDER:
This Criminal Petition, under Section 482 Cr.P.C., is filed by the petitioner, to quash the proceedings in C.C.No.448 of 2011 on the file of the Additional Judicial Magistrate of First Class, Chirala, Prakasam District.
The petitioner is the sole accused in C.C.No.448 of 2011 on the file of the Additional Judicial Magistrate of First Class, Chirala, Prakasam District.
Thumbnail sketch of the facts leading to file the complaint against the petitioner may be stated as follows:
On 13.11.2008 the then Drugs Inspector, Chirala, picked-up the drug "OMOX-500 capsules" batch No.APC-009, with manufacturing date 10/2007 and expiry date 09/2009, manufactured by M/s.Essel Pharma, Solan, for analysis along with four other drugs from the premises of M/s.Saravan Medical Agencies, Chirala, in the presence of its proprietor under intimation to him in Form-17 as required under Section 23 of the Drugs and Cosmetics Act, 1940 (for short, "the Act"). On the same day i.e. on 13.11.2008, the Drugs Inspector has sent one sealed portion of the sample drug to the Government Analyst, Drugs Control Laboratory, Hyderabad along with Form-18 through registered post. He has also sent one copy of Form-18 along with specimen impression of seal separately to the Drugs Analyst, Drugs Control Laboratory, Hyderabad through registered post.
On 02.09.2009, the Drugs Inspector received the certificate of analysis in Form-13 from the Government Analyst, Drugs Control Laboratory, Hyderabad, wherein it is declared that the test sample CMR, J.
Crl. P. No.3948 of 20134
"OMOX-500 capsules" batch No.APC-009, with manufacturing date 10/2007 and expiry date 09/2009, manufactured by M/s.Essel Pharma, Solan, is "not of standard quality" as defined in the Act as the sample did not comply with the test for uniformity of weight.
On the same day i.e. on 02.09.2009 the Drugs Inspector issued proceedings to M/s.Saravan Medical Agencies, Chirala, from whose premises he has picked-up the drug for analysis, under Section 18A of the Act, requiring them to disclose the name, address and other particulars of the person from whom they purchased the drug in question along with attested copy of the purchase bill. On receipt of the said letter, M/s.Saravan Medical Agencies, Chirala, issued a reply stating that they purchased the sample drug from M/s.Vasavi Medical Enterprises, Sattenapalli Road, Narasaraopet, as per invoice No.00903, dated 30.06.2008.
Thereafter, on 05.09.2009 the Drugs Inspector issued proceedings to the said M/s.Vasavi Medical Enterprises under Section 18A of the Act requiring them to disclose the name, address and other particulars of the person from whom they purchased the drug in question along with attested copy of the purchase bill. One sealed portion of the sample drug and copy of the analyst report were also furnished to M/s.Vasani Medical Enterprises.
On 16.09.2009 M/s.Vasavi Medical Enterprises replied stating that they have purchased the sample drug from M/s.Vijaya Vasavi Traders, Narasaraopet, vide invoice No.VAT-414, dated
02.05.2008.
Therefore, on 17.09.2009 the Drugs Inspector issued proceedings to M/s.Vijaya Vasavi Traders under Section 18A of the Act requiring them to disclose the name, address and other CMR, J.
Crl. P. No.3948 of 20135 particulars of the person from whom they purchased the drug in question, along with attested copy of the purchase bill. Copy of the Analyst report was also furnished to them. On 20.10.2009 the said M/s.Vijaya Vasavi Traders replied stating that they purchased the sample drug from M/s.Essel Pharma, Solan i.e. accused No.1-firm under invoice No.EP/231/07-08, dated 10.10.2007. It is further stated by them that they have closed their firm and enclosed the licence and cancellation letter.
So, on 26.10.2010, the Drugs Inspector issued proceedings to accused No.1-firm i.e. M/s.Essel Pharma, Solan, requiring them to furnish the manufacturing, analytical and constitution particulars of the firm along with attested manufacturing licenses, under Section 18B of the Act. In response to the said proceedings, accused No.1-firm replied and furnished copies of manufacturing, analytical records and license particulars.
Therefore, the Drugs Inspector after completion of the process, found that "OMOX-500 capsules" batch No.APC-009, with manufacturing date 10/2007 and expiry date 09/2009, manufactured by accused No.1-M/s.Essel Pharma, Solan, is a drug within the meaning of Section 3(b) of the Act and the said drug is declared as "not of standard quality" by the Government Analyst, Drugs Control Laboratory, Hyderabad, as defined in the Act and as such, accused No.1-firm violated Section 18(a)(i) read with Section 16 of the Act, by manufacturing, selling and distributing the drug, which is "not of standard quality" and thereby rendered itself liable for punishment under Section 27(d) of the Act.
Therefore, the Drugs Inspector filed the complaint under Section 32 of the Act before the Court of Additional Judicial CMR, J.
Crl. P. No.3948 of 20136 Magistrate of First Class, Chirala, Prakasam District, and the same was taken on to the file in C.C.No.448 of 2011 on the file of the said Court.
Heard Sri Ch.Dhanamjaya, learned counsel for the petitioner, and the learned Public Prosecutor for the respondents.
The petitioner-accused No.1 seeks to quash the said complaint and the proceedings initiated thereon mainly on the ground that the date of manufacture of the said drug is October, 2007 and the expiry date of the said drug is September, 2009 and the Drugs Inspector issued letter to the petitioner-firm on 26.10.2010 after the date of expiry of the said drug and as such, by the time the petitioner received information relating to report of the Government Analyst from the Drugs Inspector on 26.10.2010, the drug is expired and the petitioner lost his valuable right of taking steps to send the drug to the Central Laboratory in exercise of his valuable right conferred on him under Section 25(4) of the Act.
Learned counsel for the petitioner contends that the provisions of Section 25 of the Act are mandatory and non-supply of the Government Analyst report to the petitioner before expiry date of the drug resulted in depriving him of his valuable right to test the sample drug by the Central Laboratory and as such the proceedings are vitiated and consequently, the complaint filed by the Drugs Inspector against the petitioner-firm is to be quashed.
In order to appreciate the said contention raised by the petitioner, it is expedient to extract Section 25 of the Act, for ready reference and it reads thus:
"25. Reports of Government Analysts. --
(1) The Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis under sub-section (4) CMR, J.Crl. P. No.3948 of 2013 7
of Section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.
(2) 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 18A, and shall retain the third copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence 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 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.
(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 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 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.
(5) The cost of a 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."
A reading of the aforesaid Section makes it manifest that the Government Analyst after analysing the sample of the drug shall deliver a signed report in triplicate in the prescribed form to the Inspector. The Inspector in turn on receipt of the report, 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 18A of the Act i.e. to the accused herein and the Inspector has to retain the third copy for use in any prosecution in respect of the CMR, J.
Crl. P. No.3948 of 20138 sample. Clause (3) thereof envisages that the report of the Government Analyst shall be conclusive evidence 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 to the Drug 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. Clause (4) thereof mandates that unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has notified his intention under sub-section (3) thereof of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused: send the sample of the drug under Section 23(4) of the Act for test or analysis to the Central Laboratory, which shall make the test or analysis and send report in writing to the Director of the Central Drugs Laboratory and such report shall be conclusive evidence of the facts stated therein.
Thus, the aforesaid provision would reveal that certain obligations as well as certain safeguards are provided for a person from whom a drug has been seized for analysis or testing. Section 25(3) is clear enough to say that a valuable right is conferred on the accused to controvert the correctness or genuineness of the report submitted by the Government Analyst by notifying to Drug Inspector or the Court within 28 days in writing that he intends to adduce evidence to controvert the said report of the Government Analyst.
It is significant to note that, in the instant case, even though the date of manufacture of the drug is October, 2007 and the expiry CMR, J.
Crl. P. No.3948 of 20139 date of the said drug is September, 2009, the State Analyst report was furnished to the accused on 26.10.2010 i.e. long after the date of expiry of the drug. Almost one year after the date of expiry of the drug, the report was furnished to the accused. So, even if the accused exercises his right conferred on him under Section 25(3) of the Act, to request the Court to send the drug for test or analysis by the Central Drug Laboratory, no useful purpose would be served as the drug already expired by then. So, the accused has no opportunity to test the correctness or genuineness of the report of the State Analyst. It is well settled law that the right conferred on the accused to have the drug tested by the Central Drug Laboratory is a valuable right conferred on him and if such a valuable right is defeated for any reason, the proceedings initiated against the accused on the basis of the said State Analyst report, which is not tested as per choice of the accused by the Central Drug Laboratory, stands vitiated.
The Apex Court in the judgment in Medicamen Biotech Ltd. v. Rubina Bose, Drug Inspector1 held that there is no explanation as to why the complaint itself had been filed about a month before expiry of shelf life of the drug and concededly filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed. Likewise, requests for retesting of drug had been made by the appellants in August/September, 2001 and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting well within time. Facts of the case suggest that the appellants have been 1 (2008) 3 SCC (Cri) 20 CMR, J.
Crl. P. No.3948 of 201310 deprived of a valuable right under Sections 25(3) and 25(4) of the Act, which must necessitate the quashing of the proceedings against them.
The analogy of the aforesaid judgment squarely applies to the present facts of the case on hand. By the time, the State Analyst report was furnished to the accused, the shelf-life of the drug in question already expired long back. Therefore, the accused lost his valuable right conferred on him by the Statute under Section 25(3) & 25(4) of the Act to test the correctness or genuineness of the report of the State Analyst by sending the drug in question for test and analysis by the Central Drugs Laboratory. Ergo, the proceedings initiated against the accused in C.C.No.448 of 2011 on the file of the Additional Judicial Magistrate of First Class, Chirala, Prakasam District, stood vitiated and they are liable to be quashed.
In the result, the Criminal Petition is allowed and the complaint in C.C.No.448 of 2011 on the file of the Additional Judicial Magistrate of First Class, Chirala, Prakasam District, initiated against the petitioner herein along with further proceedings therein are hereby quashed.
The miscellaneous petitions pending, if any, shall also stand closed.
________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:18.07.2019.
Note:
L.R. copy to be marked.
B/O cs