JUDGMENT :

In both the cases, common question of facts and laws are involved and that is why, both the cases have been heard together with consent of the parties.

2. Heard Mr. Jitendra Shankar Singh, learned counsel for the petitioners in both the cases and Mr. Azeemuddin and Mr. Jitendra Pandey, learned counsel for the State in Cr.M.P. Nos.741 of 2011 and 1969 of 2011 respectively.

3. Cr.M.P. No.741 of 2011 has been filed for quashing the entire criminal proceeding arising out of Jasidih P.S. Case No.8 of 2011, dated 07.01.2011, corresponding to G.R. Case No.35 of 2011, pending in the court of the learned Chief Judicial Magistrate, Deoghar.

4. Jasidih P.S. Case No.8 of 2011 was lodged by opposite party no.2 alleging therein that the informant received information from CBI, Ranchi that their two officers would make verification of medicines in the factory of some medicine manufacturer. On 14.05.2010 in the presence of CBI officers, samples of aromatic cardamom Tincture, Belladonna Tincture were taken which were sealed in presence of the CBI officers and sent for test/analysis to the Government Analyst. It was further alleged that as per the test report dated 30.12.2010, 24.12.2010 the samples were found to be not of standard quality which comes under the category of spurious drugs which is punishable under Sections 27(b) and 27(d) of the Drugs and Cosmetics Act, 1940 (hereinafter to be referred to as “the Act, 1940”).

5. Cr.M.P. No.1969 of 2011 has been filed for quashing the entire criminal proceedings including the order dated 23.06.2011 passed by the learned Chief Judicial Magistrate, Deoghar in GOCR No.72 of 2011, corresponding to T.R. Case No.750 of 2011, pending in the court of the learned Chief Judicial Magistrate, Deoghar.

6. GOCR No.72 of 2011 was filed alleging therein that on 14.05.2010 in the presence of CBI officers, samples of aromatic cardamom Tincture, Belladonna Tincture were taken by Sumant Kumar Tiwari, the then Drug Inspector which were sealed in presence of the CBI officers and sent for test/analysis to the Government Analyst. It was further alleged that as per the test report dated 30.12.2010, 24.12.2010 the samples were found to be not of standard quality which comes under the category of spurious drugs which is punishable under Sections 27(c) of the Act, 1940.

7. Mr. Jitendra Shankar Singh, learned counsel for the petitioners submits that the FIR was registered against the petitioners in absence of the company. He further submits that the Cr.M.P. No.741 of 2011 was heard by this Court and stay was granted in favour of the petitioners vide order dated 15.06.2011 and, thereafter, the complaint case being GOCR No.72 of 2011 was filed arraying the company as one of the accused. He submits that to fill up the lacuna of lodging of the FIR, the said complaint case was filed on the same facts. He also submits that the said complaint case was filed on 18.06.2011 wherein the petitioner and company has been made accused. He submits that the report of the Government Analyst is dated 31.01.2011, contained in Annexure-B2 of Cr.M.P. No.1969 of 2011 and the analysis was made between 03.08.2010 and 20.08.2010. By way of referring the analysis report, he submits that it has not come in the report that the drug in question was spurious. He submits that at best even the analysis report is accepted, it can be a case of sub-standard drug. He further submits that Section 16 of the Act, 1940 speaks of standards of quality. He also submits that in view of second schedule in light of Sections 8 and 16 of the said Act, nothing has come on record to suggest what has not been complied as a standard drug. He further submits that in view of Section 17B of the Act, 1940, spurious drugs are defined and analysis report is not coming within any of the conditions made in Section 17B of the said Act. He submits that the said drug was not displayed in any of the pharmaceutical distributor. The drug was seized from the premises of the company. He f