The court affirmed that lack of application of mind in issuing process and violation of statutory rights under Section 25(4) of the Drugs and Cosmetics Act invalidates the proceedings against the accused.

JUDGMENT :

M.M. NERLIKAR, J.

1. Heard the learned counsel appearing for the petitioners and the learned APP for respondents/State.

2. At the outset, the learned counsel for the petitioners submits that the discharge application filed by the petitioners is pursuing the wrong remedy. In-fact, the said remedy is not available in summons case, therefore she does not press prayer clause (B) of the petition. She presses prayer clauses (C) and (D) which read as under:-

“(C) Be pleased to quash and set aside the Criminal Com-plaint bearing R.C.C. No.53 of 2023 pending on the file of the learned Chief Judicial Magistrate, Amravati.

(D) Be pleased to quash and set aside the order issuing process dated 13.02.2023 passed below Exh.-1 in R.C.C. No.53 of 2023 pending on the file of the learned Chief Judicial Magistrate, Amravati.”

3. The learned counsel for the petitioners submit that the order of issuance of process is a stamp order which shows non-application of mind. In-fact, when complaint was filed, it was expected from the Magistrate to apply the mind and by giving brief reasons order of issue process ought to have been passed. However, by passing the cryptic order, the Magistrate failed to apply his mind. The second contention raised by the learned counsel for the petitioners is that statutory right to defend the Government Analyst’s Report is violated as the complaint was filed on 09.01.2023 i.e. after five months of the expiry of the shelf life of the Drug – Atrovastain-10 Tablets. She submits that the statutory right provided under Section 25 (4) of the Drugs and Cosmetics Act (“the said Act”) has been violated, therefore she seeks quashing of the entire complaint and the proceedings. She further submits that the delay is also one of the important criteria which needs consideration as the report was received by the Drug Inspector on 25.07.2022 under Section 25 (2) of the said Act and the application for referring the sample to the Central Drugs Laboratory (“CDL”) was made on 02.09.2022, which according to the petitioners were made after expiry of the shelf life of the drugs. Therefore, she submits that though the sanction order is dated 01.08.2022, however the complaint was filed on 09.01.2023 i.e. almost after five months of the sanction order. Under these circumstances, she submits that the Court ought not to have issued summons to petitioners as the valuable right under Section 25 (4) of the said Act has been violated and further there was delay in filing the complaint.

4. On the other hand, the learned APP vehemently submits that the correct timeline was maintained by the Drug Inspector. The drugs were seized from Retail Outlet on 31.05.2022 and the same was sent to the Government Analyst on the same day i.e. on 31.05.2022. The report dated 22.07.2022 was received by the Drug Inspector on 25.07.2022 and immediately it was sent to the petitioners on the same day itself, which was received by the petitioners on 28.07.2022. He further submits that the petitioners have replied to the same on 26.08.2022 and the reply was received by the Department on 30.08.2022. The sanction order was received on 01.08.2022 and thereafter, the complaint was filed on 09.01.2023. He submits that the time- line has been followed, therefore it cannot be said that the statutory right under Section 25 (4) of the said Act is violated and accordingly, he prayed to dismiss the petition.

5. Upon hearing the rival contentions of the parties, three important questions are before this Court these are:-

(I) whether the issue process