IMPORTANT POINT
Right of appellant to have sample analysed in Central Laboratory is a valuable right.

JUDGMENT

Sanjay Kumar Dwivedi, J.—Heard Mr. Deepak Kumar Prasad, the learned counsel for the petitioner and Mr. Digvijay Prasad, the learned counsel for the State.

2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to Covid-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. This application has been filed for the following reliefs:

“For quashing of entire criminal proceeding in connection with U.C.-134/14 under Section 18(a), (i) of the Drug and Cosmetic Act, 1940, pending in the court of learned Chief Judicial Magistrate, Chatra including the order taking cognizance dated 04.09.2014 by learned Chief Judicial Magistrate, Chatra so far the petitioner is concerned.”

4. Counsel for the petitioner submits that this case can be disposed of on the short point of non-compliance of the mandatory provisions of section 23(4) and 25(2) of the Drugs and Cosmetics Act, 1940 which is enough to quash the entire criminal proceedings against the petitioners including the order taking cognizance involved in the present case. The counsel submits that the present case is fully covered by the judgment passed by the Hon’ble Supreme Court reported in (2018) 15 SCC 93 (Laborate Pharmaceuticals India Ltd. v. State of T.N.) and followed by this Court in Cr. M.P. No. 152/12 and Cr. M.P. no. 94/12, all decided in the case filed by the present petitioner only.

5. He further submits that the complaint case was lodged pursuant to a report received by the complainant from Jharkhand State Drug Testing Laboratory, Namkum, Ranchi contained in Report GA-154 dated 05.03.2013 in connection with the drug namely Ciprofloxacin and Tanidazole Tablet, Batch No.KJ494T, date of manufacturing 3/11 and date of expiry 2/2014. The sample was received on 15.12.2012 and the prosecution was launched on 27.12.2013 under Section 18(a) (i) and 27(d) of the Drugs and Cosmetics Act, 1940. The said drugs were manufactured by Preet International Pvt. Ltd., Plot No.33-34, EPIP Phase-II, Thane Industrial Area, Baddi, Solan (Himachal Pradesh) under Loan License for M/s Karnataka Antibiotics and Pharmaceuticals Limited. The learned counsel submits that as per the provision contained under Section 23(4) and 25 (2) of the Drugs and Cosmetics Act, 1940, it is mandatory that one sample of the drug as well as the report is required to be sent to the manufacturer so that the manufacturer may have an opportunity to get the sample re-tested. Counsel submits that he has made specific statement in paragraph Nos. 9 and 10 of the present case that neither the report nor the sample were ever sent to the petitioners. Counsel submits that accordingly it is admitted fact from the records of this case that neither the sample nor its test report was ever sent to the petitioners in connection with the drug for which prosecution has been launched in the present case. Counsel submits that in such circumstances, the entire criminal proceedings including order taking cognizance is fit to be quashed as the mandatory provisions of Drugs and Cosmetics Act, 1940 has not been followed and great prejudice has been caused to the petitioners as at a later stage sample cannot be sent for testing which has admittedly expired. Counsel has relied upon judgment passed by the Hon’ble Supreme Court reported in (2018) 15 SCC 93 as well as orders passed by this Court in Cr. M.P. No. 152 of 2012 and Cr. M.P. No. 94 of 2012 to submit that under similar circumstances, the entire criminal proceeding has been quashed by the High Court as well as by the Hon’ble Supreme Court.

6. Counsel for the State while opposing the prayer submits that the company Karnataka Antibiotic and Pharmaceuticals Limited was informed about the test report No.G.A.154, as soon as test report was received by the Drug Inspector Office, Chatra and no request was made