Madhya Pradesh High Court
M/S Glaxo India Limited (Now Known S ... vs The State Of Madhya Pradesh on 7 January, 2020
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
1 M.Cr.C. No.26128/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
1 Case No. M.Cr.C. No.26128/2017
2 Parties Name M/s.Glaxo India Ltd. Vs. State of M.P.
3 Date of Judgment 07/01/20
4 Bench constituted of Hon'ble Shri Justice Prakash Shrivastava
5 Judgment delivered by Hon'ble Shri Justice Prakash Shrivastava
6 Whether approved for Yes
reporting
7 Name of counsels for Shri. S.C.Bagadiya, learned Sr.counsel
parties. with Shri Mudit Maheshwari, learned
counsel for petitioner.
Shri.Amol Shrivastava, learned counsel
for respondent.
8 Law laid down If the complaint is filed after the expiry or
on the verge of expiry of the sample on
account of which the petitioner is deprived
of his right u/S.25(3) and 25(4) of the
Drugs and Cosmetics Act,1940 to get the
sample tested from Central Drugs
Laboratory, then it furnishes a sufficient
ground for quashing the prosecution.
9 Significant paragraph Paragraph 6 to 12.
numbers
(PRAKASH SHRIVASTAVA)
Judge
Digitally signed by Varghese Mathew
Date: 09/01/2020 18:28:06
2 M.Cr.C. No.26128/2017
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
MISCELLANEOUS CRIMINAL CASE NO.26128/2017
M/s.Glaxo India Ltd ... Petitioner
Vs.
State of M.P. .... Respondent
-------------------------------------------------------------------------------------
Shri. S.C.Bagadiya, learned Sr.counsel with Shri Mudit
Maheshwari, learned counsel for petitioner.
Shri.Amol Shrivastava, learned counsel for respondent.
-------------------------------------------------------------------------------------
Whether approved for reporting :
ORDER
(Passed on 07th January, 2020) [1] By this petition u/S.482 of the Cr.P.C, the petitioner has prayed for a direction to quash the prosecution/proceedings in Criminal Case No.649/1997 State of M.P. Vs. M/s.Glaxo India Ltd. And others pending before the Court of JMFC, Khargone. [2] The case of the petitioner is that it is manufacturer of drugs including Betnesol Tablet. On 6/1/1996, drug inspector had picked a sample of Betnesol Tablet batch No.N.B.750 bearing manufacturing dated 11/95 and expiry date 4/97 from Adarsh Medical Agency, Khargone. The government analyst in the report dated 14/5/1996 had found the sample to be substandard and on the basis of the said report a complaint alleging commission of offence u/Ss.18(a)(i), 18(a)(vi) and 18(a)
(iii) punishable u/S.27(d) of the Drugs and Cosmetics Act, 1940 (for short "the Act") was filed on 22/4/1997. The petitioner contraverted the report of the analyst by letter dated 12/9/1996 enclosing therewith the earlier letter dated 1/7/1996 containing Digitally signed by Varghese Mathew Date: 09/01/2020 18:28:06 3 M.Cr.C. No.26128/2017 the detailed explanation about the analytical difficulties faced by the government analyst. The petitioner had submitted the application dated 1/7/1996 u/S.25(3) of the Act for sending the sample to Director, Central Drugs Laboratory for analysis/testing as per Indian Pharmacopoeia, 1996. No reply to the said application was filed by the respondent and the learned JMFC had dismissed the application by order dated 25/1/2011. Against this order, revision petition No.63/2011 was filed by the petitioner before the Court of Addl. Sessions Judge, Khargone which was allowed by order dated 24/1/2013 by holding that the trial court ought to have sent the sample to Central Drug Laboratory for testing and interfering with the order of the trial court dated 25/1/2011 by directing the trial court to grant permission for getting the sample tested from the Central Drug Laboratory (CDL). The trial court had sent the sample to the CDL for analysis and testing on 22/11/2015 and thereafter several reminders were sent by the trial court to the CDL requisitioning the report. The report dated 5/5/2017 was received by the trial court from the CDL on or about 22 nd July, 2017. The report of the CDL was inconclusive as the sample had expired. Hence, the petitioner had filed the application dated 29/7/2017 for terminating the proceedings which was replied by the respondent and the trial court by the order dated 2/11/2017 had dismissed the application by holding that the case being a summons case it does not have the power to quash the proceedings. Hence, the present petition was filed. Pending this petition, the trial court had vide order dated 13/12/2017 had recorded the particular of offences u/Ss.18(a)
(i), 18(a)(iii) and 18(a)(vi). Therefore, after amending the petition, the order of the trial court dated 13/12/2017 has been questioned.
[3] Learned counsel for petitioner submits that the complaint was filed belatedly when the sample was going to expire, therefore, the petitioner had lost the opportunity to get the Digitally signed by Varghese Mathew Date: 09/01/2020 18:28:06 4 M.Cr.C. No.26128/2017 sample tested through CDL. He further submits that from the report of the Government Analyst, the offence is not made out and on account of the delay caused by the respondent, the petitioner had lost his valuable right to obtain the report of the CDL u/S.25(3) of the Act as by that time the sample had expired and much delay had taken place, therefore, the report of CDL is inconclusive. He also submits that the particulars of the offence in the order dated 23/12/2017 have not been noted from the report of the Analyst or CDL report, but from the extraneous material, hence they are unsustainable. In this background he has prayed for quashing the pending proceedings.
[4] As against this, learned counsel for respondent has submitted that no request in terms of Sec.25(3) of the Act was made and that at this stage no ground for quashing the prosecution is made out.
[5] Having heard the learned counsel for parties and on perusal of the record, it is noticed that undisputedly the manufacturing date of the sample was 11/95 and the expiry dater was 4/97. These dates are also mentioned in the CDL report dated 14/5/1996. Though, the sample was taken on 6/1/1996, but the complaint was filed on 22/4/1997 when the sample was about to expire.
[6] Sec.25(3) of the Act gives a right to a party to express intention to adduce the evidence in contravention of the report of the Government Analyst. Sec.25 reads as under:-
"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 Digitally signed by Varghese Mathew Date: 09/01/2020 18:28:06 5 M.Cr.C. No.26128/2017 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.
[7] In the present case, the additional documents filed on 10/5/2018 reveal that a copy of the report of the Government Analyst was sent to the petitioner by covering letter dated 29/8/1996 by registered post. The petitioner had sent the controversion on 12/9/1996 by post which was received by the respondent on 20th September, 1996. Hence, the controversion was sent within 28 days. The record further reflects that the petitioner's application u/S.25(3) of the Act was rejected by the learned JMFC by order dated 25/1/2011 but the revision petition Digitally signed by Varghese Mathew Date: 09/01/2020 18:28:06 6 M.Cr.C. No.26128/2017 against this order was allowed by learned Addl. Sessions Judge by order dated 24/1/2013 finding the petitioner entitled to get the sample tested from the CDL, but by that time the sample had expired. The sample was sent to the CDL on 22/11/2015 by the learned JMFC, though the revisional order was passed almost two years back on 24/1/2013. The report of the CDL is dated 5/5/2017. The report mentions that "the sample leads to analytical difficulties for the purpose of determining compliance with the official standards as stated under Uniformity of content". The sample which was sent to the CDL was an expired sample.
[8] The Supreme Court in the matter of State of Haryana Vs. Unique Farmaid P. Ltd (1999) 8 SCC 190 in a case where the accused within the prescribed time had notified to the Inspector of the accused's intention to adduce evidence in controversion of the report, and requesting him to get the sample analysed from the CIL, but the Inspector had not taken action and filed the complaint, but by the time the accused was summoned by the trial court, the sample had expired rendering the sending of the sample to the CIL at that stage purposeless, has held that the accused was deprived of the right to get the sample tested by the CIL and was thereby prejudiced in his defence. In the said judgment the Hon.Supreme Court has upheld the order of the High Court quashing the complaint on the ground that continuance of the prosecution would amount to abuse of process of the Court by observing that:-
"11- Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the Digitally signed by Varghese Mathew Date: 09/01/2020 18:28:06 7 M.Cr.C. No.26128/2017 prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT (1996) 10 SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal & Ors., [1998] 5 SCC 343 under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram, AIR (1967) SC 970; Chetumal v. State of Madhya Pradesh & Anr., [1981] 3 SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf & Anr., [1999] 2 SCC 400 all under the Prevention of Food Adulteration Act, 1954."
[9] In the matter of Medicamen Biotech Limited and another Vs. Rubina Bose, Drug Inspector (2008) 7 SCC 196 where the complaint was filed one month before the expiry of shelf life of the sample and the Magistrate could not get the sample tested in time, Apex Court has held that the right of the accused u/S.25(3) and 25(4) of the Act is lost due to delay in filing the complaint, therefore, the complaint is liable to be quashed u/S.482 of the Cr.P.C.
[10] In the matter of Northern Mineral Limited Vs. Union of India and another (2010) 7 SCC 726 when the similar issue came up in reference to the similar provision contained in the Insecticides Act, 1968 and before expiry of the shelf life of the Digitally signed by Varghese Mathew Date: 09/01/2020 18:28:06 8 M.Cr.C. No.26128/2017 sample no steps was possible to be taken for its test and analysis by the CIL, Hon'ble Supreme Court has taken a view that the valuable right of the accused for his defence was defeated, therefore, the continuance of the criminal prosecution against the accused is futile and abuse of process of the court.
[11] Similarly in the matter of Gupta Chemicals Private Ltd. and others Vs. State of Rajasthan and another (2010) 7 SCC 735 where the valuable right u/S.24 of the Insecticides Act, 1968 to get the sample of insecticides examined in Central Insecticides Laboratory was denied due to inaction and delay by the insecticides inspector and meanwhile the shelf life of substance had expired and the same had become untestable, it was held that the criminal proceedings were liable to be quashed.
[12] The present case stands on the same footing. In the present case also the complaint has been filed on 22 nd April, 1997 whereas the expiry of the sample was done by the petitioner within the statutory period, but the sample was not sent to the CDL within time as a result of which the sample had expired and the valuable right of the petitioner u/S.25(3) and 25(4) of the Act was defeated. Hence, at this stage continuation of the prosecution will be a futile exercise.
[13] So far as the order dated 13/12/2017 stating the particulars of the offences is concerned, the particulars noted therein are not on the basis of the report of the CDL or Government Analyst. Hence, the same cannot be sustained.
[14] Counsel for State has placed reliance upon the judgment in the matter of Chetumal Vs. State of Madhya Pradesh and another (1981) 3 SCC 72 and has submitted that no controversion in terms of Sec.25(3) was done, but the said issue is not open in view of the fact that the revisional order dated 24/1/2013 has attained finality.
Digitally signed by Varghese Mathew Date: 09/01/2020 18:28:06 9 M.Cr.C. No.26128/2017[15] In view of the above, the M.Cr.C is allowed and prosecution of the petitioner in Criminal Case No.649/1997 State of M.P. Vs. Glaxo India Ltd and others pending in the Court of JMFC, Khargone is quashed. Consequently, the order dated 13/12/2017 is also quashed.
(Prakash Shrivastava) Judge vm Digitally signed by Varghese Mathew Date: 09/01/2020 18:28:06