The main legal point established in the judgment is that the failure to provide the accused with a portion of the sample or a copy of the Government Analyst's report, which deprives the accused of his statutory right to have the sample tested by the CDL, would vitiate the prosecution if prejudice to the accused is inherent in the proceeding.

I.A. Ansari, J.

1. By making this application under Section 482 Code of Criminal Procedure, the Petitioner, who was arrayed as an accused in C.R. Case No. 208/2002, challenges the order, dated 07.04.2007, passed by the learned Additional Chief Judicial Magistrate, Sonitpur, framing charge against the accused-Petitioner under Section 27 of the Drugs and Cosmetics Act, 1940 (in short the said Act').

2. The case of the prosecution may, in brief, be described thus: On 04.06.2001, the complainant, who is an Inspector of Drugs, visited the business establishment of M/S. Pharm Assam, at Chawk Bazar, Tezpur, and took sample of Nivaquine-P, 60 ml., lot 351, and sent the same for analysis to the Government Analyst. The test report, dated 01.12.2001, was received by the complainant, on 06.12.2001, with the Government Analyst's opinion that the product was not of standard quality as defined in the said Act and the Rules framed thereunder. After obtaining requisite sanction for prosecution of the present Petitioner as manufacturer of the said drug, a complaint was lodged by the Inspector of Drugs and prosecution was accordingly initiated.

3. In support of their case, prosecution examined as many as three witnesses including the complainant and on the basis of the evidence so adduced, a charge, under Section 27 of the said Act, was, as indicated hereinabove, framed against the present Petitioner as an accused.

4. I have heard Mr, J.M. Choudhury, learned Senior counsel, appearing on behalf of the accused-Petitioner, and Mr. K. Munir, learned Addl. Public Prosecutor, Assam.

5. While considering the present revision, what needs to be pointed out, at the very outset, is that it is not in dispute that under Section 17(A)(f) of the said Act, a drug shall be deemed to be adulterated if any substance has been mixed with the drug so as to reduce its quality or strength. Hence, when the test report, in the present case, indicates that the drug, in question, on being analyzed, was found to be of sub-standard quality, it really means that the drug had substances, which had reduced the quality or strength of the drug. Consequently, such a drug would be regarded as an adulterated drug within the meaning of Section 17(A)(f) of the said Act.

6. What is, now, of immense importance to note is that the drug, in question, was not seized or the sample thereof was not taken or drawn, while the drug was in the possession of the present Petitioner as manufacturer thereof; rather, the drug was seized from the premises of M/S. Pharm Assam. The question, therefore, is as to how the prosecution under Section 27 has been launched against the Petitioner as accused, when the drug was, admittedly, not seized from the possession of the present Petitioner. This question brings me to Section 18A, which reads as under:

18A. Disclosure of the name of the manufacturer, etc. Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.

7. A close reading of the provisions of Section 18A clearly shows that it is obligatory for every person, who is not the manufacturer of a drug and cosmetic, that he shall, if so required, disclose to the Drug Inspector the name, address and other particulars of the person from whom he has secured the drug and cosmetic. From the provisions of Section 18A read with Section 27 of the said Act, which is the penal Section, what clearly transpires is that even when a sample is drawn from a drug, which has not been found in the possession of the manufacturer, the manufacturer may nevertheless be prosecuted under Section 27 if the person, from whom the sample of the drug was taken, discloses the name of the manufacturer. In the present case, the categorical admission of the Drug Inspector (PW1) is that when the sample was taken from M/S Pharm Assam, the name of the p