IMPORTANT POINT
The judgment establishes that a valuable right to re-test a drug sample, as provided under Section 25(4) of the Drugs and Cosmetics Act, cannot be denied without due process, and failure to comply with this right can lead to quashing of criminal proceedings.

JUDGMENT :

MOHAN LAL, J.

1. By invoking the provisions of Section 561-A of the Code of Criminal Procedure 1898 (hereafter referred as the 'Code”) petitioner has sought the quashment of Criminal Proceedings in Case No. 179/75/complaint with date of institution 16.04.2010 pending trial before the court of Ld. Chief Judicial Magistrate (CJM) Udhampur for commission of offences punishable u/ss 18(a)(i) r/w Section 27 of the Drugs and Cosmetic Act, 1940 alongwith all orders passed there from. It is averred, that petitioner is a partnership firm having it's registered office at Ogli Nahan Road Kala Amb-173033 (HP), the partners in the firm have authorized their one of the partner's namely Mr. Ashok Tayagi to maintain the present petition, petitioner had acquired the license being license No. MNB/05/207 and MB/05/208 on Form No. 25 & 28 for manufacturing, sale and distribution of drugs which license was duly renewed from time to time. It is moreso averred, that respondent has field a criminal complaint u/s 18(a)(i) r/w Section 27 of Drugs and Cosmetic Act against petitioner and proforma respondents 2 to 4 (being Accused No. 1 & 3 in the said complaint) for the allegations, that on 19.12.2008 Respondent No. 1 lifted sample of “BINSPAS” Tablets from the premises of proforma Respondent No. 2 with details i.e.; Batch No. OT-305, date of MGF July 2008, Exp. Dt. June 2010, manufactured by M/s August Remedies, the portion of drug in question was sent to Govt. Analyst for analysis vide Form No. 18 on 19.12.2018 and the Govt. Analyst vide it's report dated 10.10.2009 declared the drug in question 'not of standard quality' as prescribed under the Drug and Cosmetic Act, Respondent No. 1 asked proforma Respondent No. 2 to disclose source of purchase who disclosed the source of purchase from proforma Respondent No. 3, when proforma Respondent No. 3 was asked to disclose source of purchase from proforma Respondent No. 4 who in the end disclosed the name of petitioner as source of purchase. It is stated, that vide letter dated 22.01.2010 dispatched on 19.02.2010 and received by the petitioner on 27.02.2010, Respondent No. 1 informed petitioner that the drug in question manufactured by the petitioner is found to be not of standard quality, Govt. Analyst CFDC Jammu copy of report was also communicated to the petitioner who was not made aware of his valuable right as envisaged u/s 25(4) of the Act for getting the sample re-tested from sample laboratory and never sent the sample portion of drug in question to the petitioner, petitioner replied the aforementioned notice vide Registered letter No. 26.03.2010 wherein petitioner detailed replied to their allegations and also demanded the re-testing of the drug in question from central laboratory, however, Respondent No. 1 instead of sending the drug in question to the central laboratory for re-analysis deliberately filed the present complaint against petitioner and proforma respondents, suppressed the reply submitted by the petitioner, wherein, petitioner disputed the test report of local Govt. Analyst and demanded the re-testing, however, Respondent No. 1 filed the complaint on 16.04.2010 just one month before expiry of shelf life period of drug in question. It is averred, that perusal of complaint reveals that there is no reference to the actual role played by petitioner and his partners therefore no criminal proceedings can be initiated against the petitioner, court below without application of mind took cognizance against the petitioner when the substantial right of petitioner getting the drug re-tested was denied to the petitioner by deliberate conduct of Respondent No. 1 and failure on his part to supply one sealed sample portion of drug in question to the petitioner as mandated in Section 23(4)(iii) is abuse of process of law, present complaint is filed just one month before expiry of shelf life period of drug in question and by the time the petitioner was summoned and appeared in court on 04.11.2011