JUDGMENT - DESPANDE D.G., J.:---Heard the advocates. The petition criminal application is filed for quashing the criminal complaint lodged by Respondent No. 1 against the petitioners under the Drugs and Cosmetics Act, 1940.

2. The very short point was raised by the petitioners counsel in this matter. According to him, the Drug Inspector took sample of the drug on 21st September, 1990 of Envas 2.5 Mg. batch No. 002 from M/s Kant Agencies at Panvel, Raigad and the said sample was sent to the Government analysis on the same day. The Analyst by his report dated 5-2-1991 reported that the sample does not comply with specific standard and that the drug was sub-standard.

3. On 12-3-1991, the petitioner wrote to the Drug Inspector that he wants to challenge the report of the Government Analyst. After about one year i.e. by the letter dated 15-2-1992, the petitioner was informed that they should approach the JMFC Panvel so that they can challenge the report of the Government Analyst. The petitioners were given 20 days time for that purpose.

4. Further it was contended by the learned counsel for the petitioners that neither the complaint was filed by the Drug Inspector before the said Magistrate at any time in February, 1992, nor the third sample was deposited with the J.M.F.C. The complaint was filed on 22-5-1992 and the petitioner was served with the copy of the complaint in 1995. According to the learned counsel for the petitioners, the expiry date of the product was printed and it was February, 1993 and consequently, when the petitioner received the summons or notice of the complaint from the Magistrate in 1995, the expiry date was already over and the petitioner could not therefore avail of his right to send the sample under the Drugs Act to challenge the report of Government Analyst. Therefore, according to the learned counsel for the petitioner, the petitioner was deprived of his right to challenge the report of Government Analyst on account of delay and negligence on the part of the Drug Inspector in not filing the complaint before the expiry date of the drug, and not depositing the sample with the Magistrate and therefore, the complaint is liable to be quashed.

5. On the other hand it was argued by the learned A.P.P. that when the petitioner received a letter dated 15-2-1992 he should have approached the JMFC Panvel and prayed for calling Drug Inspector for depositing the sample and thereafter the petitioner could have challenged the report of the Government Analyst.

6. The learned counsel for the petitioner relied upon a judgment of the Supreme Court reported in A.I.R. 1967 S.C. 970, (Municipal Corporation of Delhi v. Ghisa Ram)1, which is a case under the Prevention of Food Adulteration Act, 1954 and wherein the Supreme Court has held that when a valuable right is conferred by section 13(2) of the said Act on the Vendor to have the sample given to him analysed by the Director of Central Food Laboratory, it is to be expected, that the prosecution will proceed in such a manner that the right will not be denied to him. In a case where there is denial of such a right to the accused on account of deliberate conduct of the prosecution i.e. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed, then, the accused vendor in his trial would be seriously prejudiced.

7. From the aforesaid judgment of the Supreme Court, it is clear that the similar right given to the accused in this case under the Drugs and Cosmetics Act, is a valuable right and the prosecution should have taken care to see that the accused/petitioners are in a position to exercise their right. Admittedly, when the letter dated 15-2-1992 was served upon the petitioners, the Drug Inspector had not filed the complaint before the JMFC Panvel, and has neither deposited the sample with the said Magistrate. To the contrary, the complaint came to be filed in May, 1992 and the summons was served upon the accused/petitioners in 1995. Admitte

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