IMPORTANT POINT
Seizure of sub-standard quality of drug – When report of Government Analyst itself is shrouded in serious suspicion and it is not sure as to whether report of Government Analyst relates to sample lifted from premises of co-accused, very basis of prosecution case gets knocked down.

JUDGMENT

The petitioner has challenged the complaint filed by respondent No.1/Drugs Inspector against it alleging commission of offences under Sections 18 read with Section 27(d) and Section 18 B read with Section 28 of the Drugs and Cosmetic Act, 1940 and the proceedings initiated thereon.

2. It appears that respondent No.1/Drugs Inspector has filed a complaint for offences under Section 18 read with Section 27(d) and Section 18-B read with Section 28 of the Drugs and Cosmetic Act, 1940 (hereinafter referred to as “the Act”) against the petitioner and co-accused before the Court of Chief Judicial Magistrate, Jammu and on the basis of the said complaint, learned Magistrate has, vide order dated 29th January, 2010, issued process against the petitioner as well as other co- accused.

3. In the complaint it has been alleged that on 24th July, 2007, the Drugs Inspector, Jammu conducted inspection of the premises of M/s Ajay Medicine Traders, a proprietorship concern of Sh. Ajay Gupta (co-accused) and he lifted the sample of drugs namely, Tab Norflox 400 and Tab Restyl 0.5 mg and in this regard he filled Form No.17 on spot. The sample was sent to the Government Analyst after its sealing and a report bearing No.CFDL/LS/Actt/tests/138/07 dated 25th April, 2008 was received by the respondent/complainant, whereby it was conveyed that the sample of the drug namely Tablet Restyl 0.5mg is not of standard quality. Accordingly, co-accused Ajay Gupta was asked to submit purchase record and other relevant information and after getting the same from the afore-named co-accused, communication dated 14th October, 2009 was sent by the complainant/Drugs Inspector to the petitioner’s office at Jammu and copy of the test report along with drug sample portion was annexed with the said communication. Thereafter, purchase record was obtained and sanction for prosecution was also obtained in terms of sanction letter dated 07th February, 2009. Again vide letter dated 28th November, 2009, respondent No.1/Drugs Inspector sought details regarding total quantity of the drug received, names of the dealers from whom the drug has been purchased etc. After conducting investigation of the case, respondent No.1/complainant found that the offences under Section 18 read with Section 27(d) and Section 18 B read with Section 28 of the Drugs and Cosmetic Act, 1940 of the Act have been established against the petitioner and co-accused and, accordingly, the complaint was lodged before the Trial Magistrate on 29th January, 2010.

4. The petitioner has challenged the complaint and the proceedings emanating therefrom, inter alia, on the ground that there is discrepancy between the particulars of the sample collected by respondent No.1 from the premises of the co-accused and the particulars of the sample, that was analyzed and tested by the Government Analyst, inasmuch as, in the Form No.17 issued by the Drugs Inspector, sample in the shape of strips containing 15 tablets were collected but as per Form No.13 annexed with the complaint, the Government Analyst has analyzed and tested the sample in the shape of strips containing 10 tablets. According to the petitioner, this goes on to show that the sample collected from the premises of the co-accused was not the same as was analyzed by the Government Analyst. On this ground it is urged that the proceedings against the petitioner are liable to be quashed. It has also been contended that in this regard the petitioner time and again sought clarification from the complainant, so that it could exercise its right under Section 25(3) of the Act but no response was given by the complainant/respondent in this regard, thus, depriving the petitioner of its valuable statutory right available in terms of the aforesaid provision. Lastly, it has been contended that the impugned complaint has been filed only on 29th January, 2010 whereas the date of expiry of the drug, of which the sample was analyzed, was January, 2010 making it impossible