Filing a complaint under the Drugs and Cosmetics Act, 1940, after the expiry of the shelf life of the drug and the period of limitation prescribed under Section 468 of the Code of Criminal Procedure is barred by limitation and amounts to an abuse of the process of the court.

JUDGMENT

1. Petitioners have preferred this misc. petition for quashing of criminal proceedings in Criminal Regular Case No.74/1992 (State of Rajasthan through the Drugs Inspector, Bharatpur vs. Umesh Chand And Ors.) pending before the Chief Judicial Magistrate, Bharatpur.

2. It is contended by counsel for the petitioners that samples were taken by Drugs Inspector on 26.07.1984. The samples were sent to the State Analyst and the report of the same was received on 26.05.1987. It is contended that Eye drop Zincocid was manufactured in March, 1983 and the shelf life expired in the year 1988. Complaint was filed in the Court in 1992.

3. It is contended that petitioners were not given any opportunity to get the samples analysed by the Central Laboratory. It is also contended that there is no report to the effect that sample was not according to the prescribed standard. The only report is that crystalline suspended material were seen in the sample. It is also contended that complaint has been filed for the offences punishable under Section 27 (a) (b) (i) and (d) of the Drugs and Cosmetics Act, 1940 (for short 'The Act of 1940').

4. Counsel for the petitioners has drawn my attention to Sub-Section (a) (d) (i) of Section 27 of the Act of 1940. Sub-Section (a) of Section 27 of the Act of 1940 would apply when spurious drug used by any person, is likely to cause his death or such harm to his body as would amount to grievous hurt.

5. In the present case, drug-in-question is Eye Drop wherein there is specific warning that if suspended crystalline material is seen, the same should not be used, thus, Sub-Section (a) of Section 27 of the Act of 1940 has no applicability to the case.

6. Sub-Section (i) of Section 27 of the Act of 1940 would apply when the drug is adulterated under Section 17A.

7. Section 17A deals with adulterated drugs, which reads as under:-

"17A. Adulterated drugs.For the purposes of this Chapter, a drug shall be deemed to be adulterated-

(a) if it consists in whole or in part, of any filthy, putrid or decomposed substance; or

(b) if it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or(c) if its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or

(d) if it bears or contains, for purposes of colouring only, a colour other than one which is prescribed; or

(e) if it contains any harmful or toxic substance which may render it injurious to health; or

(f) if any substance has been mixed therewith so as to reduce its quality or strength."

8. As per the report, certain crystalline particles were seen in the sample. Therefore, the same does not fall within the definition of Adulterated Drugs in Section 17A. The case will now be covered under Sub-Section (d) of Section 27 of the Act of 1940, maximum punishment which a Court can impose is, sentence for a term of one year, which may extend to two years.

9. As per Section 468 of The Code of Criminal Procedure, the period of limitation where the offence is punishable with sentence, is one year. The maximum sentence provided under Sub-Section (d) of Section 27 of the Act of 1940 is one year, hence the complaint should have been filed within one year, thus, the Court should have taken cognizance within one year of the date of arising of cause of action.

10. In the present case, the samples were taken in July, 1984, report of the same was received in May, 1987 and the complaint has been filed in the year 1992 i.e. after a period of five years. Complaint was thus barred by limitation and the Court could not have taken cognizance after lapse of the period of limitation.

11. In M/s Cadila Health Care Ltd. And Ors. vs. The State of Rajasthan And Ors., 2007 Cri.LJ. 1899, Division Bench of this court has held that there is denial of right to company to apply for re-testing.

12. In State of Haryana vs. Br