Madhya Pradesh High Court
M/S Safex India Pvt. Ltd. And Another vs State Of M.P. on 17 November, 2000
Equivalent citations: 2001(3)MPHT63
ORDER N.K. Jain, J.
1. Applicants, Drug Manufacturers having their Factory and Head Officer at Ratlam, are aggrieved by the order dated 22-6-2000 of the IInd Addl. Sessions Judge, Ratlam, passed in Criminal Revision No. 141/1999, whereby the learned ASJ has set aside the order dated 12-7-99 of the Chief Judicial Magistrate, Ratlam, in Criminal Case No. 1547/1986, discharging the accused applicants of the charges under Sections 27A and 27B of the Drugs and Cosmetics Act, 1940 (for short, 'the Act')
2. Tersely stated the factual matrix is that on 26-10-1984, a sample of Dextrose Injection was taken by the Drug Inspector, Chandigarh, from a retailer at Chandigarh, The sample was divided in four parts and one such part was sent to Government Analyst for analysis. The report of Government Analyst revealed that the sample contained foreign particles. The vendor of the drug as also the local dealer set up the plea available under Section 19 and further by taking recourse to Section 18A of the Act, disclosed that the drug in question was acquired by them from the applicants herein who are duly licensed manufacturer of the drug. The certified copies of the relevant papers were accordingly sent to the Drug Inspector, Ratlam, who on 30-7-1986 filed complaint against the applicants in the Court of CJM, Ratlam, alleging commission of the offence under Sections 27A and 27B of the Act. On service of summons, the accused applicants put in their appearance before the Court on 9-11-92. When evidence before charge was being recorded, they made an application under Section 245(2) of Cr.PC seeking discharge mainly on the ground that the mandatory provisions of Sections 23(4)(ii)(iii)and 25(2) of the Act, have not been complied with. The application was resisted by the prosecution. The learned CJM uphold the objection and discharged the applicants vide his order dated 12-7-1999. However, in revision the learned ASJ vide his order dated 22-6-2000 has set aside the order of the CJM and directed for continuance of the trial of the applicants who have, therefore, come up before this Court in revision.
3. It is a common ground that no part of sample of the drug in question was ever sent or supplied to the applicants. They were also not furnished copy of the report of the Government Analyst. Entire original record of the case (including the report of the analyst) together with a part of the sample was produced in the Court of CJM, Ratlam, for the first time, on 24-4-1995, when Drug Inspector, Chandigarh, appeared in that Court to give evidence. The learned CJM, held and in my judgment rightly, that the applicants have been deprived of their valuable right to get the sample analysed by the Director of Central Drug Laboratory (for short, 'the CDL'), on account of failure on the part of the prosecuting agency to comply with the mandatory provisions of Sections 23(4) and 25(2) of the Act. The Revisional Court below was, however, of the view that the accused applicants having failed to avail of the provision of sub-section (3) of Section 25, could not take advantage of the said failure on the part of the prosecuting agency.
4. I have heard Shri S.K. Pawnekar, learned counsel for applicants and Shri G. Desai, Dy. Advocate General for respondent-State.
5. Section 23 lays down the procedure for taking of sample of a drug or cosmetic by the Inspector. Sub-section (3) provides that the sample so drawn shall be divided in three or four parts. Sub-section (4) further mandates that one such portion shall forthwith be sent to the Government Analyst for analysis; the second part shall be produced in the Court before which proceedings are instituted; and, third part shall be sent to the person, if any, whose name, address and other particulars have been disclosed under Section 18A. Section 25 deals with the reports of the Government Analyst. Sub-section (2) mandates that the Inspector on receipt of the report of the Government Analyst, shall deliver one part 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 with himself for use in the prosecution in respect of the sample. Sub-section (3) entitles such person whose name and address have been disclosed under Section 18A to notify in writing the Inspector or the Court, within 28 days of the receipt of the copy of the report, that he intends to adduce evidence in controvertion of the report. Sub-section (4) further provides that the Court either on its own motion or on the prayer of the accused may cause the sample of the drug or cosmetic, produced before it be sent for test or analysis by the C.D.I. As and when the sample is sent to C.D.L. for further analysis, the result thereof, shall be conclusive evidence of the facts stated therein.
6. The provisions noticed above make it abundantly clear that while the manufacturer of a drug is ultimately responsible for supply of such a drug and is thus liable for prosecution when the drug is found lacking in requisite standard of quality, nevertheless, he (the manufacturer) at the same time, must also have effective opportunity to avail of the defence as envisaged under sub-section (3) of Section 25 to controvert the report of the Government Analyst. Needless to add, therefore, the provisions of Sections 23(4) and 25 (2) of the Act are mandatory and in fact intended to safeguard the interests of the accused.
7. In the instant case, for long 11 years the sample was neither produced in the Court nor supplied to the accused persons. Copy of the report of the Analyst was also not furnished to the accused. In the Court also the original documents were not produced and only copies were filed with the complaint. There was total non-compliance of the mandatory provisions of Sections 23 (4) and 25 (2) of the Act and the accused applicants were thus deprived of their right of getting the sample reanalysed by the Director of C.D.L. In State of Punjab Vs. National Organic Chemical Industries Ltd. (1997 FAJ 100), the Supreme Court has held :
"Unfortunately, in this case, the appellant did not adopt the course as was required under the Act. Of course, the respondent, without availing of the remedy of report by Director of CIL, may not be entitled to plead deprivation of the statutory defence. But the complaint should be lodged with utmost dispatch so that the accused may opt to avail the statutory defence. The appellant had not given third sample to the respondent. As a result, the respondent has been deprived of his statutory opportunity to have the sample tested by the CIL. Resultantly, the respondent has been deprived of a valuable defence statutority available to him. Under these circumstances, we think that further proceedings in the Court of the Chief Judicial Magistrate would be rendered fruitless."
8. Shri G. Desai, learned Dy. A.G., however, contended that the accused applicants in the instant case after service of summons on them did not make any application under sub-section (4) of Section 25 and as such they cannot contend that their right to get the drug in question by the CDL, has been frustrated. Reliance has been placed on a Supreme Court decision in State of Haryana Vs. Brij Lal Mittal, (1998) 5 SCC 343, wherein it is held :
"The right to get the sample examined by the Central Drugs Laboratory through the Court before which the prosecution is launched arises only after the person concerned notifies in writing the Inspector or the Court concerned within twenty eight days from the receipt of the copy of the report of the Government Analyst that he intends to adduce evidence in controversion of the report. In the instant case in spite of service of copies of the report of the Government Analyst the manufacturers did not exercise their right and, on the contrary, they asserted that their Quality Control Department had examined and tested sample of the drugs and found that they complied with the test of sterility. It must, therefore, be said that the consequent upon their failure to notify the Inspector that they intended to adduce evidence in controversion of the report within 28 days, not only the right of the manufacturers to get the sample tested by the Central Drugs Laboratory through the Court concerned stood extinguished but the report of the Government Analyst also became conclusive evidence under sub-section (3). The delay in filing the complaint till the expiry of the shelf-life of the drugs could not, therefore, have been made a ground by the High Court to quash the prosecution. It will not be out of place to mention that the manufacturers' right under sub-section (3) expired four months before the expiry of the shelf-life of the drugs."
I am not persuaded by the argument and the ratio in Brij Lal (supra) I am afraid, is not available to the respondent-State in the instant case. The question of notifying the Inspector or the Court of the intention of the accused applicants to challenge the report under sub-section (3) of Section 25 would arise only when the accused persons have been supplied copy of the report. The words "within 28 days of the receipt of the copy of report", occurring in sub-section (3) makes this position abundantly clear. In the instant case, as already pointed out, no such copy of the report was ever furnished to the applicants. No part of the sample was ever given to him or produced in the Court for long 11 years. In the meantime, the shelf-life of the seized drug had also expired. Under the circumstance, as held in the case of State of Punjab (supra), the accused applicants have been deprived of a valuable defence statutorily available to them. The learned CJM was absolutely right in quashing the prosecution and discharging the applicants. The learned ASJ clearly fell into error in setting aside the just order passed by the CJM. This petition thus succeeds and is allowed. The order passed by the Sessions Court below is set aside and that of the CJM, Ratlam, is restored. Resultantly the accused applicants shall stand discharged.
9. Criminal Revision allowed