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2016 Supreme(Mad) 1892
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, J.
Laborate Pharmaceuticals India Ltd. – Petitioner
Vs.
State Represented by the Drugs Inspector Tondiarpet – Respondent
Crl. O.P. No. 9252 of 2016 and Crl. M.P. Nos. 4787, 4788 of 2016
Decided On : 06-07-2016
For the Petitioner: Mr. P. Ranganatha Reddy for M/s. King & Patridge.
For the Respondent: Mr. C. Emalias, Addl. Public Prosecutor.
Headnote:
Drugs and Cosmetics Act, 1940 - Sections 22 and 23 - label claim with respect-respondent received reply letter and sent the third sample to Labor ate Pharmaceuticals India Ltd. on as required under Section 23(4)(iii) of Act - Respondent sent a reminder letter calling upon Laborate Pharmaceuticals India Ltd. to give details of constitution of the firm as required under Section 18-B of Act for which a reply was sent by Laborate Pharmaceuticals India Ltd. on - Laborate Pharmaceuticals India Ltd. (A1) sent another reply letter stating that they do not agree with report of Government Analyst and wanted to adduce evidence controverting Government Analysts report as per Section 25(3) of Act - Since letter was sent months after show cause notice respondent had no authority to send third sample for further testing to Central Laboratory - Held, Judgments relied upon by the learned counsel for the petitioners, with regard to vicarious liability provisions relate to in pari materia provisions in other statutes like the Negotiable Instruments Act, 1881, etc - Whereas Supreme Court and Others vs. State of Gujarat and another dealt with Section 34(2) of the Act and has refused to follow the interpretation given to similar provisions found in Section 141 of Negotiable Instruments Act on ground of public health. It is apposite to extract relevant passage from said judgment as - This case and realizing seriousness of the allegations, we would not take a technical view based on pleadings in complaint contended that as per settled law by this Court in complaints under Section 138 of Negotiable Instruments Act against company and directors also specific averment about active role of directors in running company has to be made failing which directors cannot be proceeded against - Same logic should apply even in present case cannot agree - Firstly language of Section 34 (2) of Act substantially differs from the language of Section 141 of Negotiable Instruments Act - Secondly here we are dealing with offence which has the direct impact on public health - Court therefore would choose not to interfere with order of High Court - Criminal Original Petition is dismissed.
1. This Criminal Original Petition is filed seeking to call for the records in C.C. No. 263 of 2015, now pending on the file of the XV Metropolitan Magistrate, George Town, Chennai and quash the same.
2 Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the seventh respondent-State.
3.1 On 05.09.2011, Mrs. P. Sankari, Drugs Inspector, Tondiarpet II Range, Zone I, Chennai, the respondent herein, visited the medical shop of one S. Serumathi and drew sample of Cherry Lab Cough Syrup B.No.ACLL-003, M/D:12/2010;E/D:11/2012; Mfd by: Laborate Pharmaceuticals India Ltd. (Unit) 31, Rajban Road, Nariwala, Paonta Sahib H.P., for analysis in terms of Sections 22 and 23 of the Drugs and Cosmetics Act, 1940 (for brevity “the Act”). The sample was sent to the Government Analyst and by report dated 27.01.2012, it was declared to be “not of standard quality” as the sample did not conform to label claim with respect to the content of Phenylephrine Hydrochloride (26.6%).
3.2 A show cause notice was issued to S. Serumathi, the person in-charge of the medical shop to disclose the name and address of the manufacturer of the drug as required under Section 18-A of the Act. In reply to the show cause notice, Serumathi stated that he does not know from whom the subject drug was purchased. Therefore, a separate case was initiated against Serumathi for various offences under Section 18 of the Act which is pending.
3.3 On observing the label on the subject drug, the respondent found that it has been manufactured by Laborate Pharmaceuticals India Ltd. (A1). Therefore, the respondent issued a show cause notice on 22.03.2012 to Laborate Pharmaceuticals India Ltd. (A1), enclosing a copy of the Analyst's report, as required under Section 25(2) of the Act. Laborate Pharmaceuticals India Ltd.(A1) sent a reply letter dated 14.05.2012 acknowledging receipt of the show cause notice on 04.04.2012. In the reply to the show cause notice, Laborate Pharmaceuticals India Ltd. (A1) contended that they have the licence to manufacture the subject drug, but, the drug would not have been properly stored by the retailer and at the Government laboratory.
3.4 It may be necessary to state here that Laborate Pharmaceuticals India Ltd. (A1) did not elect to adduce evidence controverting the Government Analyst's report, as required under Section 25(3) of the Act.
3.5 The respondent received the reply letter dated 14.05.2012 on 20.05.2012 and sent the third sample to Laborate Pharmaceuticals India Ltd. on 10.08.2012, as required under Section 23(4)(iii) of the Act. The respondent sent a reminder letter dated 10.08.2012, calling upon Laborate Pharmaceuticals India Ltd. to give details of the constitution of the firm as required under Section 18-B of the Act, for which, a reply was sent by Laborate Pharmaceuticals India Ltd. on 12.09.2012. Laborate Pharmaceuticals India Ltd. (A1) sent another reply letter dated 13.09.2012 stating that they do not agree with the report of the Government Analyst and wanted to adduce evidence controverting Government Analyst's report as per Section 25(3) of the Act. Since the letter dated 13.09.2012 was sent 7 months after the show cause notice, the respondent had no authority to send the third sample for further testing to the Central Laboratory.
3.6 As stated above, as per Section 25(3) of the Act, if any person wants to adduce evidence controverting the Government Analyst's report, a request should be made within 28 days from the date of receipt of the show cause notice. In this case, the show cause notice was issued on 22.03.2012 and in the reply letter dated 14.05.2012, Laborate Pharmaceuticals India Ltd. (A1) did not elect to adduce evidence controverting the Government Analyst's report and only in the communication dated 13.09.2012, they asked for sending the sample to the Central Laboratory. Hence, a belated request well beyond 28 days fixed by the statute cannot be entertained.
3.7 Since the rep
