Point of Law - In fact, there is no bar to sending a sample of drug for test/analysis directly to CDL without first sending to the Government Analyst. This is clear from the bare language of the Section 25(4) of the Act.

JUDGMENT :

1. The petitioners have challenged the complaint filed by respondent No.1 against them before the Court of learned Chief Judicial Magistrate (CJM), Jammu under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940 (for short, the Act of 1940) and the proceedings emanating therefrom.

2. It appears that respondent No. 1-Drugs Inspector filed a complaint for offences under Section 18(a)(i) read with Section 27(d) of the Act of 1940 against the petitioners and proforma respondents No.2 to 4 before the court of learned CJM, Jammu and on the basis of the said complaint, the learned Magistrate has, vide order dated 05.09.2014 after observing that prima facie commission of offences under Section 18(a)(i) read with Section 27(d) of the Act of 1940 are made out against the accused including the petitioners herein, issued process against them.

3. In the complaint, it has been alleged that on 22.04.2013, the complainant visited the Provincial Medical Store, Shalimar, Near MLA Hostel, Directorate of Health Services, Jammu and collected three samples of suspected drugs from the said sales premises in Form-17. One of the samples pertained to Paracetamol Tab. 500 mg with Batch No. PCM-2014, date of manufacture 12/2012 and date of expiry 11/2014. The sample was sent to the Government Analyst, Regional Drugs Testing Laboratory (RDTL), Chandigarh, and vide test report dated 15.05.2013, the sample was declared to be of standard quality.

4. An order came to be passed by Srinagar Bench of this Court in PIL No. 67 of 2014 titled Dr. Nisar-ul-Hassan and anr. v. State of J&K and ors. on 10.09.2013 whereby a direction was issued for sending all the samples of drugs collected by the complainant to both the laboratories i.e. Central Drugs Laboratory (CDL), Kolkatta and RDTL, Chandigarh as the Court was of the view that quite a high numbers of samples sent to CDL Kolkatta were found to be misbranded in comparison to the samples sent to the RDTL, Chandigarh. In pursuance to the aforesaid directions, the sample of drug in question was sent to the CDL, Kolkatta for re-analysis. Vide test report dated 10.01.2014 of CDL Kolkatta, the sample in question was declared as not of standard quality for the reason that the sample did not conform to IP with respect to the test of dissolution.

5. After the receipt of the aforesaid test report from the CDL Kolkatta, the complainant vide communication dated 20.01.2013 addressed to the Medical Officer, Provincial Medical Store, Shalimar, sought a reply as to the source of the purchase. In response thereto, the Medical Officer, Provincial Medical Store, Shalimar communicated vide his letter dated 25.01.2014 that the drug in question has been purchased from the accused company. Accordingly, a notice dated 11.02.2013 was addressed to the accused company and a reply thereto was furnished by the accused company vide its communication dated 09.03.2014. Upon receipt of the reply from the accused company, the prosecution was launched against the accused persons including the petitioners herein.

6. As per the complaint, petitioner No. 2 happens to be the Chairman-cum-Director of the accused company, petitioner No.3 happens to be Managing Director of the accused company and both of them are responsible for the conduct and day-to-day affairs of the accused company. It has been further averred in the complaint that the proforma respondent No. 2 is running the financial, production, sale distribution, manufacturing affairs of the company and, as such, he is liable to be punished under the Act of 1940. The proforma respondent No. 3 is stated to be the Manufacturing Chemist, whereas proforma respondent No. 4 is stated to be Analyst Quality Control of the accused company and that all of these accused persons with common intention and with active participation have manufactured the drug in question which has been declared as not of standard quality. Petitioner No. 1, the company has also been impleaded as an ac