Point of Law: Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of High Court to prevent abuse of process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior court.

ORDER :

By way of instant criminal revision petition filed under Section 397/401 of Cr.PC, challenge has been laid to order dated 16.12.2021, passed by the learned Sessions Judge, Sirmour District at Nahan, H.P., in Criminal Complaint No. 43/3 of 2015 (registered as ST No. 3-ST/7 of 2017), whereby court below after being satisfied that prima-facie case under Section 18(a) (i) read with Section 17-B (d) punishable under Sections 27 (d) and 27 (c) of the Drugs & Cosmetics Act, 1940 (in short the “Act”) exists against the petitioners, proceeded to frame charges against them.

2. For having bird’s eye view, facts necessary for adjudication of the case are that petitioners No. 2 and 3 are the sole partners in M/s Elnova Pharma i.e. petitioner No.1, whereas petitioner No.3 is the General Manager/Production In-charge of petitioner No.1-M/s Elnova Pharma. On 16.4.2008, Drug Controller-cum-Licensing Authority, Shimla, H.P. granted licence bearing No. MB/08/692 to the petitioner-firm for manufacturing for sale/distribution of the drugs specified in Schedule C & C(i) of Form 28. On the same day, authority detailed herein above also granted license bearing No. MNB/08/691 to petitioner No.1 for manufacturing for sale and distribution of drugs other than specified in Schedule C & C(i). On 30.1.2012, the Drug Inspector visited the premises of petitioner No.1-M/s Elnova Pharma and during the course of the inspection drew samples of 11 drugs including EP-KOFF capsules, which were in the form of Soft Gelatin Capsules in batch No. EPKSG1102 and sent the same to CTL Kandaghat for chemical analysis on 7.1.2012. Government Analyst CTL Kandaghat vide report bearing No. CTL-Drugs/2010-4702 dated 29.6.2012 declared the sample of drug in question as “not of standard quality” (Annexure P-1). As per essay test, out of combination of the three drugs, one drug i.e. Dextromethorphan HBR was found as claimed, whereas remaining two drugs were not found as per claimed quantities.

3. Aforesaid report of Government Analyst CTL Kandaghat, came to be conveyed to the petitioners through registered post vide letter dated 9.7.2012. In response to the aforesaid communication, M/s Elnova Pharma-petitioner No.1 vide letter dated 13.8.2012, expressed its intention of adducing evidence in contravention of the adverse report of CTL Kandaghat as per rules framed under the Act. Alongwith aforesaid communication, petitioner-firm also supplied manufacturing & sales record of the batch in question to the Drug Inspector (Annexure P-2). Besides above, petitioner-firm withdrew the entire batch of drug from the market. Pursuant to aforesaid request/intention to lead the evidence in contravention of the adverse report issued by the CTL Kandaghat, second sample drawn by the Drug Inspector was sent to Central Drug Laboratory, Kolkata for analysis/testing under Section 25 of the Act. Pending result from Central Drug Laboratory, Kolkata, petitioner-firm also got sample tested from the govt. approved laboraratory namely Devansh Testing & Research Laboratory Pvt. Ltd., who vide report dated 3.11.2011 found samples of batch of EP-KOFF capsules to be of “standard quality” (Annexure P-5).

4. On 1.2.2013, petitioner-firm made a request to learned Chief Judicial Magistrate Nahan, District Sirmour for sending the Working Standards & Method of Analysis for the drug EP-KOFF capsules to the Central Drug Laboratory, Kolkata, which fact is evident from application dated 1.2.2013 (Annexure P-5), however, aforesaid prayer made by the petitioners was not acceded to. Director, In-charge of Central Drug Laboratory, Kolkata submitted the report of test and analysis of the drug in question on Form-2 vide No. 2-1/2012-SS/CC-232/699 dated 21.3.2013, reporting therein