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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
RAJNESH OSWAL, J.
PDC Healthcare - Petitioner
Versus
Mumtaz Ahmed - Respondent
CRMC No. 02 of 2020, Crl. M. No. 3 of 2020
Decided On : 28-07-2021
Criminal Procedure Code, 1973 - Section 482 - Drugs and Cosmetics Act, 1940 - Section 18(a)(i) - Quash of criminal proceedings - Government Analyst - Respondent then Drug Inspector, during routine inspection at premises of Medical Hall, conducted detailed inspection. Thereafter, he expressed his intention to lift samples of drugs for test/analysis for Government Analyst and filled Form No. 17 in this regard and then lifted samples of Aceclotide-SP Tablets Mfg. date 01/2016, Exp. Date 12/2017 (quantity 1x4x5x10 Tablets), manufactured by M/s PDC Healthcare, petitioner herein. Thereafter Drug Inspector further divided drugs so lifted as samples into four portions each and sealed and one portion of drug in question was sent to Government Analyst, Combined Food and Drugs laboratory for its test and analysis and in this regard, Form No. 18 was also filled by then Drug Inspector.
Finding of the Court: petitioner has been deprived of valuable right under section 25(3) and 25(4) of the Act, and as such, this Court has no other option but to quash proceedings and as such, criminal proceedings in complaint under section 18(a)(i) of Act titled, Drug Inspector, Mumtaz Ahmed vs. M/s N.K. Medical Hall and others pending before the learned Chief Judicial Magistrate, also order whereby the learned trial court has taken cognizance and issued process against the petitioner, are quashed - Complaints are being quashed at the very initial stage for violation of mandatory procedure. It is expected that Controller, Drug and Food Control Organization J and K would take corrective steps so as to ensure that the procedure prescribed under the Act is duly complied with while launching prosecutions in future - Controller, Drug and Food Control Organization is required to impart training to Inspectors with regard to the compliance of procedure for initiating proceedings under the Act against the violators.
Result: Ordered Accordingly.
JUDGMENT :
1. The present petition has been filed by the petitioner under section 482 Cr.P.C. for quashing of the criminal proceedings in a complaint under section 18(a)(i) of the Drugs and Cosmetics Act, 1940 (for short the Act), titled, Drug Inspector, Udhampur, Mumtaz Ahmed vs. M/s N.K. Medical Hall and others pending before the learned Chief Judicial Magistrate, Udhampur (hereinafter to be referred as the trial court) as also the order dated 30.11.2017, whereby the learned trial court has taken cognizance and issued process against the petitioner.
2. The brief facts as they emanate from the complaint are that on 22.08.2016, the respondent-Sh. Vikram Singh Bhau, the then Drug Inspector, Udhampur during routine inspection at the premises of M/s N. K. Medical Hall, Sudha Memorial Complex, Hospital Road, Udhampur conducted detailed inspection. Thereafter, he expressed his intention to lift samples of drugs for test/analysis for Government Analyst and filled Form No. 17 in this regard and then lifted the samples of Aceclotide-SP Tablets (Batch No. T-1650) Mfg. date 01/2016, Exp. Date 12/2017 (quantity 1x4x5x10 Tablets), manufactured by M/s PDC Healthcare, petitioner herein. Thereafter, the Drug Inspector further divided the drugs so lifted as samples into four portions each and sealed and one portion of drug in question was sent to the Government Analyst, Udhampur, Combined Food and Drugs laboratory for its test and analysis and in this regard, Form No. 18 was also filled by the then Drug Inspector. The test report dated 30.12.2016 received from the Government Analyst, CFDL, Udhampur under section 25(1) of the Act on Form No. 13, declared the drug in question as ‘Not of Standard Quality. It is further stated that after finding that the drug sample in question was not of standard quality, the respondent vide letter dated 31.12.2016 directed the M/s N.K. Medical Hall (supra) to disclose the source of the purchase of the drug along with relevant record. The respondent also furnished the copy of the test report of Government Analyst to M/s N. K. Medical Hall i.e. retailer. M/s N.K. Medical Hall, the retailer vide letter dated 07.01.2017 stated that the drugs in question have been purchased by him from M/s Kailash Agencies, Amar Market, Raghunath Bazar, Jammu vide invoice No. 3995 dated 17.06.2016 and invoice No. 7797 dated 01.09.2016. Copy of the report of the Government Analyst along with sealed sample portion was handed over to M/s Kailash Agencies and it was directed to furnish the name of the manufacturer from whom the drugs in question have been purchased. M/s Kailash Agencies vide letter dated 19.01.2017 stated that the drugs in question were purchased from the petitioner vide invoice No. 00629 dated 24.02.2016. During the course of investigation, it was found that the drugs in question were lying in the premises of M/s M.K. Medical Hall which were further seized by the complainant/respondent on 31.12.2016 and the copy of the Form No. 16which was filled in this regard was also handed over to M/s N. K. Medical Hall in presence of the witnesses. Thereafter, vide letter dated 21.01.2017 along with reminder dated 02.03.2017, the complainant respondent herein, asked the petitioner to produce the total quantity of drugs in question manufactured along with three number of copies of the batch manufacturing record, total quantity of the said drugs lying in the stock and three copies of the statement of sale giving the name of dealers but no reply was received within a statutory period of 28 days, as provided under section 25(3) of the Act.
3. It is further stated in the complaint that vide letter dated 09.08.2017 the petitioner replied that it was not satisfied with the report of the Government Analyst, CFDL, Udhampur and stated that it will challenge the same. Vide letter dated 1.08.2017 and letter dated 09.09.2017, the respondent duly informed the Assistant Controller Drugs, Udhampur/ Reasi/ Ramban about the whole investigation and fur
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The right of the petitioner to adduce evidence under sub sections 3 and 4 of section 25 of the Drugs and Cosmetics Act was crucial in influencing the court's decision to quash the entire criminal pro....
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