Allahabad High Court
M/S Grampus Laboratories Thru.Partner ... vs U.P.Medical Supplies ... on 19 March, 2021
Bench: Devendra Kumar Upadhyaya, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 2 Case :- MISC. BENCH No. - 6091 of 2020 Petitioner :- M/S Grampus Laboratories Thru.Partner Manav Maini Respondent :- U.P.Medical Supplies Corp.Ltd.Thru.Managing Director & Anr. Counsel for Petitioner :- Amarjeet Singh Rakhra,Anumita Chandra,Mohd Yasir Abbasi Counsel for Respondent :- C.S.C.,Abhinav N.Trivedi Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Manish Kumar,J.
(Delivered by Hon'ble Manish Kumar, J.)
1. Heard Shri Amarjeet Singh Rakhra, learned counsel for the petitioners, Shri Abhinav N. Trivedi, learned counsel appearing for the respondent no. 1 and the learned State Counsel for the respondent no. 2.
2. The present writ petition has been preferred for quashing of the impugned order dated 07.10.2019 passed by the Uttar Pradesh Medical Supplies Corporation Limited (hereinafter referred to as the, UPMSCL) blacklisting the petitioner for a period of three years from the date of receipt of the order.
3. The petitioner is a partnership firm and in the business of manufacturing and marketing allopathic medicines and supplying the same since 2017 all over the country. On 12.06.2018, the UPMSCL issued an E-tender for supply of drugs for a period of two years. The contract was awarded to the petitioner being fully eligible, qualified and also being the lowest bidder. The letter of intent dated 10.10.2018 was issued in favour of the petitioner for three drugs namely Lignocaine Gel (30 gm tube), Permethrin Cream (60 gm tube and Neomycine, Polymyxin-B Sulphate & Bacitracin inc-Powder (10 gm bottle). After the award of the contract in favour of the petitioner, the petitioner started supplying the drugs against the purchase order dated 3.11.2018. The quality of drugs was tested by the General Manager, Quality Control, UPMSCL who issued drug clearance certificate with respect to the batches of the drugs.
4. In the meantime, the Drug Inspector drew sample of drugs in question from batch number GLEP-181006 and Batch No. GLEP-181020 respectively and the same were sent to Regional Drug Testing Laboratory, Chandigarh (hereinafter referred to as , the RDTL) which were numbered as Batch No. 6 and 20 respectively.
5. The reports came against the petitioner and show cause notices were issued to which, the petitioner submitted its reply within time with protest and for sending the samples to the Central Drug Laboratory, Kolkata (hereinafter referred to as, the CDL) for reanalysis but without waiting the report from the CDL, the impugned order of blacklisting has been passed.
6. Learned counsel for the petitioner has fourfold submissions;
Firstly, the report submitted by the RDTL is not conclusive and final for initiating any action against the petitioner. Once the petitioner had availed its right to challenge the test reports of the Government Analyst under section 25 (3) read with section 25 (4) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as, the Act of 1940) the passing of the impugned order in pursuance of report of Government Analyst is bad in the eyes of law, as same is not a conclusive evidence.
Secondly, there are two contradictory and conflicting reports by the Government Analyst as far as test sample of Batch No. 20 is concerned. The first report dated 28.06.2019 declared the sample of the drug "Not of Standard Quality" while the second report for the same batch dated 04.12.2019 states that "the sample does not conform to claim as per Paent & Proprietary in respect to the Asay of Neomycin Sulphate, Polymixin-B Sulphate".
Thirdly, as per Rule 45 of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as, the Rules of 1945), the government analyst is supposed to furnish the report of the results of the tests/analysis within a period of 60 days from the date of receipt of sample whereas the reports for both the Batch Nos. were submitted with a delay of more than 60 days.
Fourthly, as per clause 9 of the Guidelines dated 26.11.2010 issued by the Ministry of Health and Family Welfare, the Central Government in pursuance of the provisions contained in Section 33 (P) of the Act of 1940 directed all State/UT Governments to instruct their respective drug licensing authorities to adhere to the procedures prescribed in the guidelines for taking action on samples of drugs declared Spurious or Not of Standard Quality.
7. Learned counsel for the petitioner has further submitted that the drugs in question is a Patent and Proprietary drug, with non pharmacopieal formulation, meaning thereby that the formulation is in house and the method of analysis for testing such formulations has to be provided by the manufacturer and it is only in case of non -receipt of such procedure, the sample may be tested as per method of analysis available with the Government Analyst. The petitioner provided the formulation for test/Analysis to the RDTL vide its communication dated 16.04.2019 but the RDTL proceeded with the testing on its own and not as per the formulation provided by the petitioner.
8. The learned counsel for the petitioner in support of the submissions advanced placed reliance on two judgments rendered by the Hon'ble Supreme Court. In one of the judgments, the order of blacklisting was under challenge taking the plea that order of black listing has been passed in pursuance of the test report conducted in contravention of Section 25 of the Act of 1940, wherein it has been held by Hon'ble the Apex Court that the same is to be decided as per Section 25 of the Act of 1940 whereas in the other judgment the Hon'ble Apex Court has considered the pari materia provisions of different acts.
9. Reliance has been placed by the learned counsel for the petitioner on the judgment rendered by the Hon'ble Supreme Court in the case of Medipol Pharmaceutical India Pvt. Ltd. Vs. Post Graduate Institute of Medical Education & Research and Ors. reported in 2020 (9)ADJ 369. The para no. 12 of the said judgment is being quoted hereinbelow:-
"Though the aforesaid judgments pertain to criminal prosecutions under the Drugs and Cosmetics Act, Prevention of Food Adulteration Act and Insecticides Act, yet, they lay down that a valuable right is granted to a person who is sought to be penalized under these Acts to have a sample tested by the Government Analyst that is found against such person, to be tested by a superior or appellate authority, namely, the Central Drugs Laboratory. These judgments lay down that if owing to delay which is predominantly attributable to the State or any of its entities, owing to which an Article which deteriorates with time is tested as not containing the requisite standard, any prosecution or penalty inflictable by virtue of such sample being tested, cannot then be sustained. We have seen that on the facts of this case, the sample drawn and analyzed by the Government Analyst was delayed for a considerable period resulting in the sample being drawn towards the end of its shelf life. Even insofar as the samples sent to the Central Drugs Laboratory, there was a considerable delay which resulted in the sample being sent and tested 8 months beyond the shelf life of the product in this case. It is thus clear that the valuable right granted by Section 25 of the Drugs and Cosmetics Act kicks in on the facts of this case, which would necessarily render any penalty based upon the said analysis of the sample as void. "
10. He further placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Northern Mineral Limited Vs. Union of India reported in AIR 2010 SC 2829. The para nos. 10,11 and 12 of the said judgment are being quoted hereinbelow:-
"10. Counsel representing the respondents, however, contends that excepting intimating its intention to adduce evidence in controversion of the report of the Regional Pesticides Laboratory specific request was not made to send the sample for test and analysis by the Central Insecticides Laboratory and, hence, failure to send the sample for test and analysis by the Central Insecticides Laboratory in no way defeats the right of the accused. The submission advanced necessitates examination of scope and ambit of Section 24(3) & 4 of the Act, same read as follows:
24. Report of Insecticide Analyst.
XXX (3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty- eight days of the receipt of a copy of the report notified in writing the Insecticide 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 Insecticides Laboratory, where a person has under Sub section (3) notified his intention of adducing evidence in controversion of the Insecticide Analyst's report, the court may, of its on motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the Magistrate under Sub-section (6) of Section 22 to be sent for test or analysis to the said laboratory, {which shall, within a period of thirty days, which shall make the test or analysis) and report in writing signed by, or under the authority of the Director of the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
XXX
11. From a plain reading of Section 24(3) of the Act, it is evident that an accused within 28 days of the receipt of the copy of the report of the Insecticide Analyst to avoid its evidentiary value is required to notify in writing to the Insecticide Inspector or the Court before which the proceeding is pending that it intends to adduce evidence in controversion of the report. Section 24(4) of the Act provides that when an accused had notified its intention of adducing evidence in controversion of the Insecticide Analyst report under Section 24(3) of the Act, the court may of its own motion or in its discretion at the request either of the complainant or the accused cause the sample to be sent for analysis to the Central Insecticides Laboratory. Under the scheme of the Act when the accused had notified its intention to adduce evidence in controversion of the report of the Insecticide Analyst, the legal fiction that the report of the Insecticide Analyst shall be conclusive evidence of the facts stated in its report looses its conclusive character. The Legislature has used similar expression i.e. the "intention to adduce evidence in contravention of the report" in both Sub-section (3) and Sub-section (4) of Section 24 of the Act, hence both the expression has to be given one and the same meaning. Notification of an intention to adduce evidence in controversion of the report takes out the report of the Insecticide Analyst from the class of "conclusive evidence" contemplated under Sub-section (3) of Section 24 of the Act. Further intention of adducing evidence in controversion of the Insecticide Analyst report clothes the Magistrate the power to send the sample for analysis to the Central Insecticides Laboratory either on its own motion or at the request of the complainant or the accused. In face of the language employed in Section 24(4) of the Act, the act of the accused notifying in writing its intention to adduce evidence in controversion of the report in our opinion shall give right to the accused and would be sufficient to clothe the Magistrate the jurisdiction to send the sample to Central Insecticide Laboratory for analysis and it is not required to state that it intends to get sample analysed from the Central Insecticides Laboratory. True it is that report of the Insecticides Analyst can be challenged on various grounds but accused can not be compelled to disclose those grounds and expose his defence and he is required only to notify in writing his intention to adduce evidence in controversion. The moment it is done conclusive evidentiary value of the report gets denuded and the statutory right to get the sample tested and analysed by the Central Insecticides Laboratory gets fructified.
12. The decisions of this Court in the cases of National Organic Chemical Industries Ltd. (Supra), Unique Farmaid (P) Ltd. and Ors. (Supra) and Gupta Chemicals Pvt. Ltd. (Supra), in our opinion do support Mr. Nehra's contention. True it is that in first two cases, the accused, besides sending intimation that they intend to adduce evidence in controversion of the report accused persons have specifically demanded for sending the sample for analysis by the Central Insecticides Laboratory. However, the ratio of the decision does not rest on this fact. While laying down the law, this Court only took into consideration that accused had intimated its intention to adduce evidence in controversion of the report and that conferred him the right to get sample tested by Central Insecticides Laboratory. The decision of this Court in the case of Gupta Chemicals (supra) is very close to the facts of the present case. In the said case "on receipt of the information about the State Analyst report the appellants sent intimation to the inspector expressing their intention to lead evidence against the report" and this intimation was read to mean "their intention to have the sample tested in the Central Insecticides Laboratory". From the language and the underlying object behind Section 24(3) and (4) of the Act as also from the ratio of the decisions aforesaid of this Court, we are of the opinion that mere notifying intention to adduce evidence in controversion of the report of the Insecticide Analyst confers on the accused the right and clothes the court jurisdiction to send the sample for analysis by the Central Insecticides Laboratory and an accused is not required to demand in specific terms that sample be sent for analysis to Central Insecticides Laboratory. In our opinion the mere intention to adduce evidence in controversion of the report, implies demand to send the sample to Central Insecticides Laboratory for test and analysis.
11. On the other hand, learned counsel appearing for the respondents submitted that the report submitted by Government Analyst RDTL is final and conclusive as far as it relates to the petitioner, as the case of the petitioner is covered by the terms and conditions of the agreement. The conclusiveness of the reports of the RDTL during the pendency of the report awaited from the CDL is relevant for the purpose of criminal proceedings and not applicable in the present case.
12. After hearing the learned counsel for the respective parties, it is found that as per Section 25 of the Act of 1940, which provides that the report of Government Analyst is conclusive evidence but if a person, within 28 days of receipt of the report, notifies in writing that he intends to adduce evidence in contravention of the report of the Government Analyst and the Court on the request of the complainant or the accused may send the samle for test or analysis to the CDL and such report shall be conclusive evidence of the facts stated therein. For convenience, Chart containing necessary information is given below:-
Batch No. Date of Report Date of Show Cause notice Reply by the petitioner Order of CJM for referring 181006 26.08.2018 1.08.2019 07.8.2019 16.12.2019 181020 30.10.2018 21.09.2019 27.09.2019
-
Reanalysis of 181020 04.12.2019 16.01.2020 23.01.2020 14.02.2020
13. The aforesaid chart clearly shows that petitioner, as per Section 25 (4) of the Act of 1940 had notified its intention in writing to challenge the report within 28 days and hence the report of the Government Analyst is not conclusive evidence particularly when the request of the petitioner was forwarded by the Chief Judicial Magistrate to the CDL and the report is still awaited.
14. As per Rule 45 of the Rules of 1945, the Government Analyst is required to submit its report within a period of 60 days from the date of receipt of the sample whereas in the present case, the same has not been followed. For convenience, the Rule 45 of the Rules of 1945 is being quoted hereinbelow:-
"45. Duties of Government Analysts.--
(1) The Government Analyst shall cause to be analysed or tested such samples of drugs 1[and cosmetics] as may be sent to him by Inspector or other persons under the provisions of Chapter IV of the Act and shall furnish reports of the results of test or analysis in accordance with these Rules.
(2) A Government Analyst shall from time to time forward to the Government reports giving the result of analytical work and research with a view to their publication at the discretion of Government.
15. The following chart shows the total no. of days in delay of submission of report by the RDTL after statutory period of 60 days.
Batch No. Sample forwarded to the RDTL Report by the RDTL Total No. of days in delay of submission of report after statutory period of 60 days.
181006 15.01.2019 28.06.2019 164-60 = 104 (more than 90 days) 181020 15.01.2019 10.07.2019 28.06.2019 awaited 164-60 =104 (more than 90 days)
16. The Clause 9 of the directions issued by the Ministry of Health & Family Welfare, dated 26.11.2010 is being quoted hereinbelow:-
" The Central Government therefore in pursuance of the provisions contained in Section 33 of the Drugs and Cosmetics Act, 1940, hereby directs all State/UT Governments to instruct their respective drug licensing authorities to adhere to the procedures prescribed in the guidelines for taking action on samples of drugs declared Spurious or Not of Standard Quality so that enhanced penalties are invoked ensuring that while offenders are dealt with heavy hand, the confidence of the genuine manufactures is not shaken and the growth of the Industry is not hampered. "
17. To consider the applicability of the judgments of the Hon'ble Apex Court relied by the learned counsel for the petitioner, it is necessary to mention the pari materia provisions of the different Acts namely, Section 24 of the Insecticides Act, 1968 and Section 13 of the Prevention of Food Adulteration Act, 1954 with Section 25 of the Act of 1940. The aforesaid sections are being quoted hereinbelow for ready reference:-
Section 24 of the Insecticides Act, 1968
24. Report of Insecticide Analyst.--
(1) The Insecticide Analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-section (6) of section 22, shall, within a period of [thirty] days, deliver to the Insecticide Inspector submitting it a signed report in duplicate in the prescribed form.
(2) The Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty-eight days of the receipt of a copy of the report notified in writing the Insecticide 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 Insecticides Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of the Insecticide Analyst's report, the court may, of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the Magistrate under sub-section (6) of section 22 to be sent for test or analysis to the said laboratory, [which shall, within a period of thirty days, which shall make the test or analysis] and report in writing signed by, or under the authority of, the Director of the Central Insecticides 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 Insecticides Laboratory under sub-section (4) shall be paid by the complainant or the accused, as the court shall direct.
Section 13 of the Prevention of Food Adulteration Act, 1954
13. Report of public analyst.-- [ (1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. --3[(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis."
(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
(2A) When an application is made to the court under sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition.
(2B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.
(2C) Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-section (2B), the court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court: Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in sub-section (2B).
(2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution.
(2E) If, after considering the report, if any, of the food inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections (2) to (2D) shall, so far as may be, apply.] (3) The certificate issued by the Director of the Central Food Laboratory 54 [under sub-section (2B)] shall supersede the report given by the public analyst under sub-section (1).
(4) Where a certificate obtained from the Director of the Central Food Laboratory 54 [under sub-section (2B)] is produced in any proceeding under this Act, or under sections 272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.
(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code (45 of 1860): 55 [Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory [not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1A) of section 16] shall be final and conclusive evidence of the facts stated therein.] 56 [Explanation.--In this section, and in clause (f) of sub-section (l) of section 16, "Director of the Central Food Laboratory" shall include the officer for the time being in charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section.] Section 25 of the Drugs and Cosmetics Act, 1940 "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) 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.
18. A perusal of the above mentioned provisions of the different Acts shows that these provisions are pari materia to the Section 25 of the Act of 1940 and hence, the judgment relied by the learned counsel for the petitioner is applicable in the present case.
19. The Hon'ble Supreme Court in the case of Vetindia Pharmaceuticals Limited Vs. State of Uttar Pradesh and another reported in (2021) 1 SCC 804 has held that order of blacklisting is not only in praesenti but also attaches taint and may spell the death knell for all times to come described as a civil death. The para no. 13 of the said judgment is being reproduced hereinunder:-
"13. In view of the aforesaid conclusion, there may have been no need to go into the question of the duration of the blacklisting, but for the arguments addressed before us. An order of blacklisting operates to the prejudice of a commercial person not only in praesenti but also puts a taint which attaches far beyond and may well spell the death knell of the organisation/institution for all times to come described as a civil death. The repercussions on the appellant were clearly spelt out by it in the representations as also in the writ petition, including the consequences under the Rajasthan tender, where it stood debarred expressly because of the present impugned order. The possibility always remains that if a proper show cause notice had been given and the reply furnished would have been considered in accordance with law, even if the respondents decided to blacklist the appellant, entirely different considerations may have prevailed in their minds especially with regard to the duration. This court in Kulja Industries Limited vs. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited and others, (2014) 14 SCC 731, despite declining to interfere with an order of blacklisting, but noticing that an order of permanent debarment was unjustified, observed:
28.2. Secondly, because while determining the period for which the blacklisting should be effective the respondent Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor."
20. The conjoint reading of the sub section 3 and 4 of Section 25 of the Act of 1940 clearly provide that once the person from whom, the sample was taken, has notified in writing and intended to adduce the evidence in contravention of the Government Analyst's report, then the report submitted by the Government Analyst is not a conclusive evidence.
21. The Government Analyst, in complete contravention of clause 9 of the directions issued by the Ministry of Helath and Family Welfare, dated 26.11.2010, has tested the sample not as per the formulation provided by the petitioner vide its communication dated 16.04.2019.
22. The submissions advanced by the learned counsel for the respondent no. 1 is that the present case of the petitioner is to be governed by the terms and conditions of the agreement, wherein it has specifically been provided that there are two batches of the drug supplied that was "Not of Standard Quality" then the firm/company shall be blacklisted for that particular drugs for a period of three years and the petitioner is not entitled for any benefit under rule 45 of the Rules of 1945 and clause 9 of the guidelines dated 26.11.2010.
23. It is further submitted that the benefit of section 25 of the Act of 1940 is only to be given to the petitioner in criminal proceedings.
24. The aforesaid submissions of the learned counsel for the respondent are not acceptable for the reason that the procedure which has to be followed is as per the provisions of the Act and Rules and any conclusion on the basis of the same is to be in consonance with the Act & Rules.
25. From the discussions made hereinabove, the position which emerges is that the test report by the Government Analyst is in contravention of the Section 25 of the Act of 1940, Rule 45 of the Rules of 1945 and clause 9 of the Guidelines issued by the Ministry of Health and Family Welfare dated 26.11.2010. The impugned order has been passed treating the report of the Government Analysts as conclusive evidence, is not tenable in the eyes of law and as such the said the reason indicated in the impugned order is in complete derogation and contravention of the statutory provisions mentioned above.
26. The apprehension of the respondent no. 1 is that if the petitioner firm would not have been blacklisted then the drugs which are of not of standard quality may be hazardous in the treatment of the patients in the hospitals. The same could be prevented by stopping or deferring supply from the petitioner.
27. For the foregoing reasons, the impugned order dated 07.10.2019 passed by the respondent no. 1 is hereby quashed.
28. We, however, direct that supply of drugs from the petitioner shall stand deferred till testing report from CDL, Kolkata is received. On receipt of the said report, the Corporation shall take decision regarding supply.
29. Once report from CDL, Kolkata is received, the Corporation shall take decision regarding debarring the petitioner or blacklisting it afresh.
30. The writ petition is allowed in the aforesaid terms.
31. There will be no order as to cost.
Order Date :- 19.03.2021 Ashish