Non-compliance with the mandatory provisions of Section 25(3) of the Drugs and Cosmetics Act, 1940, which grants the accused the right to have the sample tested by the Central Drugs Laboratory, renders the subsequent proceedings against the accused unsustainable.

1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973, for quashing the complaint filed against the petitioners under the Drugs and Cosmetics Act, 1940 (hereinafter called the Act) and for quashing all proceedings taken in pursuance thereof.

2. Factual position as stated in the petition is as under :

3. Petitioner No. 1 is running a Medical Store having retail drugs licence for the purpose of sale of drugs and is running store known as Bansal Medical Store, Railway Road, Palwal. On May 1, 1989, Shri M. P. Gupta. District Drugs Inspector raised the premises of the petitioners and took sample of 38 capsules of Oxytetracycline (I.P.) manufactured by Messrs Chemie Cure Pharmaceuticals near Jawala Textile Mills, Delhi Road, Gurgaon, in September 1988, expiry date of which was September, 1990. The sample of 38 capsules was divided into four portions, three portions being of six capsules each whereas the fourth portion contained 20 capsules. A portion of sample of 20 capsules of Oxytetracycline was sent to Government Analyst Haryana for analysis. The sample was declared to be not of standard quality by the Government Analyst Haryana.

4. After obtaining the report of the Government Analyst, the Drugs Inspector filed a complaint against the petitioners in the Court of Chief Judicial Magistrate, Faridabad.

5. The learned Chief Judicial Magistrate took cognizance of the complaint and issued process of the Court to the petitioners. The charges were framed by the Chief Judicial Magistrate on the basis of the complaint.

6. Reply to the petition has also been filed.

7. The main point urged by the learned counsel for the petitioners is that the complaint as well as further proceedings are liable to be quashed on the sole ground that mandatory provisions of Section 25 of the Act have not been complied with. According to the learned counsel, the petitioners had notified in writing to the Drugs Inspector with the request to send the sample for testing to the Central Drugs Laboratory as stipulated in Section 25 of the Act. They had doubted the correctness of the report of the Government Analyst and intended to adduce evidence in contravention of the same by getting it tested from the Central Drugs Laboratory. A copy of the letter, dated June 13, 1989 sent by the petitioners to the Drugs Inspector has been attached as Annexure P3 with this petition.

8. The learned counsel for the petitioners further submits that in spite of the letter of the petitioners, the Drugs Inspector did not send the sample for testing to the Central Drugs Laboratory and his action, thus, amounts to non-compliance of the mandatory provisions of Section 25(3) of the Act. The learned counsel, thus, states that the petitioners have been deprived of their right of getting the sample tested from the Central Drugs Laboratory, which right was given to them by Section 25 of the Act. When the sample was sent to the Central Drugs Laboratory, it had already expired. Annexure R/1 filed with the reply itself shows that the sample was received in the Central Drugs Laboratory on December 10, 1990 and the report of the Central Drugs Laboratory is dated May 9, 1991. In this view of the matter, the petitioners urged that when they had intimated to the Drugs Inspector in time to send the sample to the Central Drugs Laboratory, it was not so sent by him. The petitioners had discharged their duty but the respondents did not. For convenience sake, relevant portion of Section 25 is reproduced as under :3

"25 (1) to (2) xxx xxx xxx(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken (or the person whose name, address and other particulars have been disclosed under Section 18A) has within twenty eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court be