Sri. Ramakant K Katiyar vs The State Of Karnataka on 14 November, 2022

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Karnataka High Court

Sri. Ramakant K Katiyar vs The State Of Karnataka on 14 November, 2022

Bench: Hemant Chandangoudar

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                                   CRL.P No. 103119 of 2022


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 14TH DAY OF NOVEMBER, 2022

                          BEFORE
     THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
       CRIMINAL PETITION NO. 103119 OF 2022 (482-)
BETWEEN:

1.   SRI. RAMAKANT K KATIYAR
     WRONGLY SHOWN AS R.K KOTHIYAR
     AGED 64 YEARS,
     OCC. BUSINESS, NO. B-52 ,
     ROOP NAGAR, INDUSTRIAL AREA,
     LONI, GHAZIABAD-201102
     UTTAR PRADESH STATE

                                               ...PETITIONER

(BY SRI. RAMACHANDRA A MALI.,ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA
     REP BY ASST. DRUG CONTROLLER-2
     DHARWAD CIRCLE, HUBLI,
     NOW REP . BY STATE PUBLIC PROSECUTOR,
     HIGH COURT OF KARNATAKA BUILDING, DHARWAD
     BENCH,DHARWAD

                                              ...RESPONDENT

(BY SRI.V.S.KALASURMATH., HCGP)

     CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING
TO CALL FOR THE RELEVANT RECORDS AND QUASH THE IMPUGNED
ORDER DATED 03.02.2022 MADE IN C.C. NO. 210/2022 (P.C.
NO.73/2022) PASSED BY THE 1ST ADD. CIVIL JUDGE AND J.M.F.C.
COURT, HUBBALLI AND CONSEQUENTLY ALSO QUASH F ALL
FURTHER PROCEEDINGS IN C.C. NO. 210/2022 REGISTERED FOR
THE OFFENCE U/S 18 (a) (i) PUNISHABLE U/S. 27(d) OF DRUGS
AND COSMETICS ACT 1940 ON THE FILE 1ST ADD. CIVIL JUDGE
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                                       CRL.P No. 103119 of 2022


AND JMFC HUBBALLI IN SO FAR          AS THE SAME RELATE TO THE
PETITIONER/ACCUSED NO. 2.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

Private complaint under Section 200 of Cr.P.C. was filed by the respondent for contravention of Section 18(a)(i) of the Drugs and Cosmetics Act, 1940 (for short "Drugs Act"), alleging that the subject drug which was manufactured by the Company in question in which the petitioner was sent by the drug inspector concerned to the Government analyst for analysis in Form-No.13 as specified under Rule 46 of the Rules. The Government analyst submitted a report, declaring that the subject drug manufactured by the petitioner-accused No.2 as not of the standard quality.

2. The learned Magistrate took cognizance of the aforesaid offence and issued summons. Taking exception of the same, the petitioner-accused No.2 was before this Court in this petition.

3. I have examined the submissions made by the learned counsel for the parties.

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4. The subject drug was manufactured in the month of April 2012 and the shelf life was valid for a period of September 2013. The sample of the subject drug was drawn from the manufacturing unit of the petitioner-accused No.2 on 14/8/2012 and it was sent for analysis to the Government analyst in Form No.13. The Government analyst by report dated 22.10.2012 declared the subject drug as not of standard quality. The complaint was filed on 11/1/2022 by which time the shelf life of the subject drug had expired.

5. Section 25 (4) of the Drugs Act specifies that unless the sample has already been tested or analyzed in the Central Drugs Laboratory, the learned Magistrate suo-moto or at the request of the accused, cause the sample of the drug produced before him to be sent for test or analysis to the said Laboratory which shall make the test or analysis and report in writing. The Hon'ble Apex Court in the case of Medicamen Biotech Limited and another V/s. Rubina Bose, Drug Inspector, reported in (2008) 7 SCC 196 at para 19 has held as follows:

" 18. In Unique Farmaid case [(1999) 8 SCC 190 :

1999 SCC (Cri) 1404] which was a case under the Insecticides Act which has provisions analogous to Section 25(4) of the Act, the Court found that the accused had indeed made a request to the Inspector for -4- CRL.P No. 103119 of 2022 sending the sample for retesting within the prescribed time-limit and as this request had not been accepted an important right given to an accused had been rendered ineffective on which the proceedings could be quashed. This is what the Court had to say: (SCC p. 197, paras 12-13) "12. It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases the Insecticides Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, the shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention.

The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case the accused have been deprived of that right, thus, prejudicing them in their defence.

13. In these circumstances, the High Court was right in concluding that it will be an abuse of process of court if the prosecution is continued against the respondents, the accused persons. The High Court rightly quashed the criminal complaint. We uphold the order of the High Court and would dismiss the appeals."

We find that this judgment helps the case of the appellant rather than that of the respondent because in -5- CRL.P No. 103119 of 2022 spite of two communications from the appellant that it intended to adduce evidence to controvert the facts given in the report of the Government Analyst, the fourth sample with the Magistrate had not been sent for reanalysis. The observations in Amery Pharmaceuticals case [(2001) 4 SCC 382 : 2001 SCC (Cri) 724] are also to the same effect. We find that the aforesaid interpretation supports the case of the appellants inasmuch they had been deprived of the right to have the fourth sample tested from the Central Drugs Laboratory. It is also clear that the complaint had been filed on 2-7-2002 which is about a month short of the expiry date of the drug and as such had the appellant- accused appeared before the Magistrate even on 2-7- 2002 it would have been well-nigh impossible to get the sample tested before its expiry.

19. In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred as the appellant had avoided service of summons on it till 9-5-2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf life of the drug and concededly the 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, we observe that the requests for retesting of the drug had been made by the appellant in August/September 2001 as would be clear from the facts already given above 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. We are, therefore, of the opinion that the facts of the case suggest that the appellants have been 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."

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6. In the present case, the report of the Government analyst was served on the petitioner-accused No.2 or produced before the learned Magistrate, after the shelf life of the subject drug had expired, thus depriving the valuable rights of the petitioner-accused No.2 to send the subject drug for re-analysis since the report submitted by the Government analyst is not conclusive as specified under Section 25 (3) of the Drugs Act.

Accordingly, I pass the following:

ORDER

i) Criminal petition is allowed.

ii) Impugned proceedings in C.C.No.210/2022, pending on the file of the Ist Addl. Civil Judge and JMFC, Hubballi is hereby quashed insofar as it relates to petitioner-accused No.2.

Sd/-

JUDGE VB List No.: 1 Sl No.: 40

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