JUDGMENT - J.N. PATEL, J.:---Heard Mr. Kulkarni learned Counsel for the applicant and Mr. Yengal, A.P.P. for State.

2. Applicant is prosecuted for having committed offences under section 18(a)(i) read with sections 17, 17-A and 17-B of the Drugs Cosmetics Act, 1940, punishable under section 27 of the said Act. The Drug Inspector Mr. V.K. Biyani visited the establishment M/s. Shah Hiralal Tejulal Medical Stores, at Post: Balapur, District: Akola, on 3-5-1991 and has taken sample of Ampicillin and Cloxacillin for oral suspension 2-PEN, out of Batch No. 0056, manufacturing date 10/90, expiry date 2/92 of which M/s. Plenthico Pharmaceuticals, A.B. Road, Manglia (M.P.) are the manufacturers. On 4-5-1991 the said drug samples were sent to Government Analyst, Maharashtra State, Mumbai for necessary analysis. The Government Analyst submitted his report in form No. 13 vide No. M-2321 of 1991 dated 17-7-1991 and declared that the sample 2-PEN, Batch No. 0056 to be not of standard quality for the reason that the content of Cloxacillin in the sample is less than the labelled amount (42.61%). The said test report was then forwarded to the partner of the firm Mr. Jayeshkumar Shah, who disclosed that the said drugs were purchased from M/s. Trimurti Sales, Akola and therefore, two other samples were sent to M/s. Trimurti Sales, Akola so also to the applicant who was the manufacturer, as required under sections 23(4)(iii) 25(2) of the Drugs Cosmetics Act, 1940. After receipt of the prosecution order the Drug Inspector filed complaint in the Court of Judicial Magistrate First Class, Balapur, District: Akola, which came to be registered as Criminal Case No. 209 of 1991 in which he prosecuted the applicants for having contravened section 18(a)(i) read with sections 17, 17-A, 17-B of the Drugs Cosmetics Act and Rules thereunder which is punishable under section 27 of the said Act.

3. It is the case of the applicants that after receipt of report of the Government Analyst, Maharashtra State Drugs Control Laboratory, Bombay-51 the applicants applied to the Drug Inspector to forward another sample i.e. counter part of it to the Central Drug Laboratory. Therefore, the complainant filed an application Exhibit 2 before the trial Court for forwarding the said sample to the Central Drug Laboratory for analysis. The Director, Central Drugs Laboratory, Calcutta sent his report to the Court under his letter dated 6-5-1992. The report discloses, as can be seen from the certificate of test issued by the Central Drugs Laboratory in form No. 2 which is in accordance with the Drugs Rules, 1945, that the sample conforms to the claim with respect to the above tests. It is on receipt of this test report from the Director, Central Drugs Laboratory, applicant moved the Court for discharge as no offence was made out, recalling issuance of process and discharging the case of prosecution as no case of contravention of section 18-A(1) read with sections 17-A 17-B of Drugs Cosmetics Act, 1940 was made out. The learned Magistrate vide order dated 25-3-1996 set aside the order dated 24-12-1991 issuing process against the applicant and directed that the complaint stands dismissed under section 203 of Cri.P.C.

4. The complainant aggrieved by the decision of the learned Magistrate approached the Court of Sessions at Akola by preferring Criminal Revision No. 213 of 1996. The learned Additional Sessions Judge by his order dated 18-2-1999 quashed and set aside the order of the learned Magistrate and directed that, the matter be proceeded further in accordance with law. The applicants have challenged the said order before this Court under section 401 read with 397 of Cri.P.C. by preferring this revision.

5. Mr. Kulkarni, the learned Counsel before the Court for the applicants-accused, submits that now it is settled law that once the Central Drugs Laboratory examines the sample and gives a report which exonerates the applicants, the report of the Government Analyst of Sta

Click Here to Read the rest of this document