Point of Law: Quash of Criminal proceedings - once it is shown that the right of accused to adduce evidence in controversion of the Government Analyst’s report is defeated due to acts and omission of the Drugs Inspector, the prosecution against the accused deserves to be quashed.

JUDGMENT :

1. Petitioners have challenged the complaint filed by respondent against them before the Court of Chief Judicial Magistrate, Srinagar, under Section 18(a) (i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940, and the proceedings initiated thereon.

2. It appears that the respondent Drugs Inspector has filed a complaint for offences under Section 18(a) (i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940 [for short “the Act” hereinafter] against the petitioners and four more accused before the Court of Chief Judicial Magistrate, Srinagar, and on the basis of the said complaint, the learned Magistrate has, vide order dated 21.08.2014, after observing that, prima facie, commission of offences under Section 18(a) (i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940, are made out against the accused including the petitioners herein, issued process against the accused.

3. In the complaint it has been alleged that on 25.04.2013, when the complainant conducted a routine inspection of drugs in Sub District Hospital, Pampore, she lifted the sample of certain drugs for test/analysis including the one pertaining to “NIMTH {Injection IP} (Batch No.NP-11-63, Mfg. Dt. 09/2011 Exp. Dt. 08/2013” manufactured by M/S Nitin Life Sciences Limited. The sample was sent to Government Analyst, CDL, Kolkatta and vide his certificate bearing test No.32-20/2013-SS/DCA(J)-15/1278 dated 12.06.2013, issued in terms of Section 25(1) of the Act, the sample of the drug in question was declared to be not of standard quality as defined under the Act and it was observed that the sample does not conform to I.P. with respect to assay of Methylergometrine maleate. The complainant thereafter addressed a communication bearing No.JSZ/1-BB/SAMPLE-41/2013/681 DATED 22.06.2013, to BMO, Sub District Hospital, Pampore, seeking details of the dealer from whom the drug in question had been purchased along with the relevant record. A copy of the test report of Government Analyst was also furnished to the BMO, who after collecting information sought vide the aforesaid communication, vide his reply dated 20.09.2013, conveyed to the complainant that the drug in question had been supplied to the Hospital by M/S Manchanda Medicos Shalimar Bagh, New Delhi. Accordingly, the complainant issued another communication dated 25.10.2013 to M/S Manchanda Medicos, New Delhi, seeking disclosure with regard to dealer from whom the drug had been purchased. Vide reply dated 19.11.2013, M/S Manchanda Medicos informed the complainant that the drug in question has been manufactured, sold and supplied by M/S Nitin Life Sciences Limited, of which petitioners happen to be the Directors. A communication bearing No.JSZ/1-1/BB/SAMPLE/41/2013/1030 dated 28.11.2013 was addressed by the complainant to the aforesaid manufacturers seeking stock purchase and sale record of the drug in question. A sealed sample portion and copy of the test report of the Government Analyst was also sent to the company.

4. The complainant goes on to allege that on 20.09.2013, a joint inspection team from the office of the complainant visited the accused company for investigating the matter and vide its reply dated 20.09.2013, the accused company notified its intention to adduce evidence under Section 25(4) of the Act. It is alleged that the accused company failed to justify the reason for the failure of the sample under the standards laid under the Act. It is contended that the sample of the drug had got expired and, as such, the same could not be sent for re-analysis under Section 25(4) of the Act.

5. The complainant is also stated to have taken up the matter with Drug Controller, Haryana and the said Authority suspended the license of the manufacturing company. The accused company is further stated to have addressed two communications dated 28.11.2013 and 25.12.2013, requesting the complainant not to take punitive against the accused.

6. Lastly, it has been alleged by the complainant that