Shailendra Singh, J.—Heard Mr. D.K. Sinha, learned senior counsel appearing for the petitioners and Mr. Jharkhandi Upadhyay, learned APP appearing for the State.

The present application has been filed under section 482 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) for quashing the order dated 16.08.2014, so far as it relates to the petitioners, whereby and whereunder the cognizance under sections and Rules 96(ii), 18(a)(i) and 27(d) of the Drugs and Cosmetics Act, 1940 (in short ‘Drugs Act 1940’) & Rules 1945 Amendment, 2008 (in short ‘Drugs Rules 1945’) has been taken against the petitioners by the learned Sub-Divisional Judicial Magistrate, Gaya in connection with G.O. Case No. 2 of 2014.

2. Mr. D.K. Sinha, learned senior counsel appearing for the petitioners submitted that the petitioner No. 1 is a registered company and petitioner No. 2 is one of the partners of Ms. Om Surgical Industries. In December 2010, the State Health Society, Bihar, Patna invited tenders for supplying of drugs and medicines to the different medical institutions of the State of Bihar and the petitioners’ company’s tender was finally considered in respect to supply of ABSORBENT COTTON WOOL I.P. 500 gm., and in this regard, supply order was also issued to the petitioners’ company and in this regard, an agreement was also executed between the petitioners’ company and the Bihar State Health Society and thereafter, the petitioners’ company started supplying the cotton as per the supply order to the different medical institutions. On 14.11.2013, Drug Inspector, Nagar Nigam Area, Gaya inspected the Central Drug store of Anugraha Narayan Magadh College and Hospital, Gaya and took sample of the Absorbent Cotton Wool of batch No. 1194 and sent the same for testing at Bihar Drugs Control Laboratory, Agam Kuwan, Patna. After testing, the sample bearing batch No. 1194 was not found to be of standard quality and thereafter, petitioners’ company was stopped from supplying the cotton of the said batch. In order to assail the order impugned, the learned counsel has mainly taken the grounds that firstly, the testing procedure was not correct and in the name of efficient test, the Deputy Government Analyst only did the formality and conducted only the Absorbency test and nothing else and in this regard, Annexure- ‘4’ is relevant which also shows that prescribed protocol for conducting test on Absorbent Cotton Wool as per I.P. was not followed by the Government Analyst. In fact, the alleged cotton of the batch No. 1194 and 1258 became wet during transit from factory premises to warehouse and was meant for getting dispatched back to the factory and in this regard, an explanation was also submitted to the concerned authority vide Annexure - ‘7’. The learned trial court has passed the order impugned taking cognizance under Sections 96(ii), 18(a)(i) and 27(d) of the Drugs Act, 1940 and Drugs Rules 1945, in mechanical manner as there is no penal provision in Rule 96 of the Drugs Rules, 1945. Drugs rule 18(a)(i) has been repealed and there is no penal provision in the Section 18(a)(i) of the Drugs Act, 1940, though Section 27(d) has penal provision but the same relates to drugs only and not relating to the cosmetic articles and the alleged cotton which was found to be of sub-standard quality comes in the purview of cosmetic articles, hence, the learned trial court has not applied its judicial mind in passing the order impugned, so, it is liable to be set aside.

3. On the contrary, Mr. Jharkhandi Upadhaya, learned counsel appearing for the State has vehemently opposed this petition and submitted that the alleged act of the petitioners attracts the penal provision under the Drugs Act, 1940, though, there is no proper reference of the relevant penal provision in the order impugned but merely due to this fact, the order impugned should not be set aside and there is sufficient material to proceed against the petitioners for the alleged wrong under Drugs Act, 1940.

4. He