This Criminal Petition is filed under Section 482 Cr.P.C. to quash order dated 26-10-2009 passed in Crl.M.P.No.287 of 2009 in C.P.R.No.227 of 2009 on the file of I Additional Judicial Magistrate of First Class, Nizamabad.

2. Whereas the petitioner herein is the accused the second respondent herein is the complainant in the proceedings before the Court below. For the sake of convenience, I refer the parties as arrayed in the proceedings before the Court below.

3. The facts of the case are as follows:

The Accused is the Proprietor of M/s. Seeko Biotics, Krishna Nagar, Tadepalli Mandal, Guntur District, which is the manufacturer and supplier of a drug by name ‘FYTE’. On 20-10-2008 the complainant, being the Drug Inspector, visited the shop of the accused and collected samples of the said drug observing necessary formalities. The complainant sent one of the samples to the Government Analyst, Drugs Control Laboratory, Hyderabad, for analysis and report. Subsequently analyst report was received therefrom with the endorsement “Not of standard quality”. Therefore, the complainant issued a notice dated 24-08-2009 to the accused informing about the outcome of the analysis of the sample which was received by the accused on 07-09-2009. Consequently, the accused sent a letter dated 01-10-2009 to the complainant notifying that he was intending to challenge the analyst report under Section 25(3) of the Drugs and Cosmetics Act, 1940 (for short ‘the Act’), but no consequential action was taken. Thereafter the accused filed the petition in question praying to send the second sample for analysis and report to the Central Drugs Laboratory, Kolkatta, under Section 25(3) of the Act.

4. Upon considering the material available, it is observed by the Court below as follows. By virtue of Section 25(3) of the Act, the accused should have challenged the report furnished to him by the complainant within 28 days of receiving the copy of the report. As per the material available, the accused received a copy of the report along with notice on 07-09-2009, thereby he had to approach the Court under Section 25(3) of the Act on or before 04-10-2009, but he filed the petition at a belated stage which cannot be permitted. The Court below also referred to a decision in AMERY PHARMACEUTICALS v. STATE (AIR 2001 SC 1303) with regards to the question of delay. With those observations, the Court below dismissed the petition. Thereby the present petition has been filed.

5. Learned counsel for the accused would contend that by virtue of clause (3) of Section 25 of the Act, upon receiving a copy of the analyst report together with notice, the accused got a right to notify in writing the complainant or the Court about his intention to adduce evidence in controversion of the report following which either the complainant or the Court got obligation to send the second sample to the Central Drug Laboratory for analysis and report for the purpose of deciding the complicity of the accused in the matter finally. But even though the accused issued the proceedings giving his intention to do so within the stipulated time, no action was taken either by the complainant or by the Court by reason of which the accused lost a valuable right of establishing his innocence in the case as a result of which the proceedings are liable to be quashed.

6. Learned Additional Public Prosecutor contends that by virtue of clause (4) of Section 25, the accused also got an obligation to file an application before the Court for the purpose of sending the second sample to the Central Drugs Laboratory, but he failed to do so, whereby non-fulfillment of the obligation by the complainant or the Court cannot be taken as a circumstance to quash the proceedings. According to him the Court below properly appreciated the matter and no grounds are made out to quash the proceedings.

7. Therefore, it is to be seen as to whether by virtue of clauses (3) and (4) of Section 25, there was incumbency on the part