The right of a manufacturer to adduce evidence in controversion of the report of the Government Analyst is not violated if the sample has already been tested by the Central Drugs Laboratory.

JUDGMENT

1. The petitioners have challenged the complaint filed by respondent Drugs Inspector against them and the co-accused before the Court of Chief Judicial Magistrate, Srinagar, alleging commission of offences under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940.

2. It appears that on 26.04.2013, sample of a drug, namely, Zargo50 (Losartan Potassium Tab IP) Batch No.BPSG12198, manufacturing date 10/2012, expiry date 9/2014, manufactured by petitioner No.1, was lifted from the premises of co-accused EFF AAY Traders Pharmaceutical Distributors House No.131, Nursingh Garh, Srinagar, by the respondent Drugs Inspector. One portion of the sealed sample of the drug was sent to the Government Analyst i.e., Regional Drugs Testing Laboratory, Sector 39-C, Chandigarh, and vide report dated 26.06.2013, it was reported that the drug in question is of standard quality.

3. Vide order dated 10.09.2013, passed by a Division Bench of this Court in PILNo.6/2013 titled Dr. Nisar ul Hassan and another vs. State of J&K and Ors., general directions were issued that the samples collected by Drug Inspectors be sent to more than one laboratories for testing so as to dispel any impression of error or any other extraneous consideration. Accordingly, the respondent Drugs Inspector sent sample of the drug in question to Central Drugs Laboratory, Kolkata, for re-analysis through the court of Judicial Magistrate, 1st Class, Jammu. As per the test report issued by Central Drugs Laboratory, Kolkata, on 28.02.2014, the sample in question was found to be of not a standard quality. Accordingly, the prosecution was launched against the petitioners who happen to be the manufacturers of the drug in question and the co-accused by filing a complaint before the Court of Chief Judicial Magistrate, Jammu, which later on came to be presented before the Court of Chief Judicial Magistrate, Srinagar.

4. The petitioners have challenged the impugned complaint and the order passed by the learned Chief Judicial Magistrate, Srinagar, whereby process has been issued against them, on the grounds that the manufacturer has a statutory right to controvert the report of the Government Analyst by adducing evidence but in this case said right of the petitioners has been violated. It has been contended that the respondent Drugs Inspector has not issued any notice to the petitioners under Section 23 and 25 of the Drugs and Cosmetics Act nor a portion of the sample was sent to the petitioners. It has been contended that the impugned complaint has been filed by the respondent Drugs Inspector at a time when there was no time left for the date of expiry of the drug in question and, as such, the petitioners had no opportunity of applying to the Court with a request for re-analysis of the sample. According to the petitioners, on this ground alone the prosecution is liable to be quashed in terms of the law settled by the Supreme Court on the issue. It has been contended that under the garb of the orders of the High Court, the statutory protection given to a manufacturer cannot be taken away. It is also contended that even otherwise the variation in the content of the drug in question is not of a significant nature as would make the drug spurious and, as such, it was not open to the respondent Drugs Inspector to launch prosecution against the petitioners.

5. I have heard learned counsel for the parties and perused the material on record including the trial court record.

6. There can be no dispute to the fact that that manufacturer of a drug has a statutory right to adduce evidence in controversion of the report of the Government Analyst and he has to exercise this right within 28 days of receipt of copy of the report. Once this intension is notified by the manufacturer, the sample of the drug produced before the Magistrate has to be sent for testing or analysis to the Central Drugs Laboratory. There is no dispute to the legal position that if violation of this right h