The right to re-analysis of a sample under section 25(4) of the Drugs and Cosmetics Act, 1940, is not absolute and can be forfeited by the failure of the accused to take timely action to exercise this right.

Sarojnei Saksena, J.

1. The petitioners are seeking quashment of complaint Annexure P-1 filed under sections 18(1)(i) read with section 27(b)(i), 27(c) and 27(d) of the Drugs and Cosmetics Act, 1940 (in short, the Act).

2. The brief facts of the case are that complainant is a duly appointed Drug Inspector under the Act. Petitioners (accused No. 1) are drug manufacturers. M/s Soni Medical Agencies, Ladwa, is a wholesale drug licensee firm. On July 9, 1993, Shri Ashok Bhamba, the then Drug Inspector, inspected the premises of M/s Soni Medical Agencies and a sample No. AKB-48/93 of Chloroamphenicol Capsule I.P. Batch No. GC-50, Ex. P. Nov. 94 manufactured by the petitioners-accused No. 1 was taken for analysis. As per the procedure laid down in the Act, it was divided into four portions. One portion of the sample was given to the partner of Messrs Soni Medical Agencies, from whom the sample was taken. Another portion of the sample was sent to the Government Analyst Haryana. On analysis the sample was declared not of standard quality vide test report dated August 31, 1993.

3. Notice dated September 27, 1993, was served on M/s Soni Medical Agencies, Ladwa. Their reply dated July, 8, 1993, was received, wherein it was disclosed that they purchased the said drug from M/s Vinay Medicine Traders, Khan Market, Saharanpur.

4. M/s Vinay Medicine Traders, Saharanpur, is a wholesale drug licensed firm. Notice dated October 7, 1993, was sent to them. They disclosed that they have purchased this drug from M/s Dass Medical Store, Meerut, vide their bill No. 25927 dated May 2, 1993.

5. M/s Dass Medical Store, Meerut, is a wholesale drug licensed firm and stockist of accused No. 1-petitioner as disclosed from the copy of bill No. 25927 dated May 2, 1993.

6. M/s Dass Medical Store, Meerut, was served with a notice dated November 10, 1993, to disclose the particulars of purchase of the said drug. Reminders were sent on December 3, 1993, April 15, 1994 and May 21, 1994, but no reply was received. Registered notices dated July 14, 1994 and August 6, 1994, were also sent to them, but no reply was received. Failing to receive any reply accused No. 1-petitioners were served with a notice dated September 6, 1994, under the Act for having manufactured the said drug for sale and distribution through M/s Dass Medical Store, Meerut also. For further investigation and also for delivery of sample along with a further copy of the test report, the Drug Inspector informed the petitioners about his visit fixed on October 11, 1994, by registered letter dated September 29, 1994. As no reply was received, next date was fixed for October 20, 1994.

7. On October 6, 1994, the complainant received a letter from the petitioners-accused No. 1 dated September 25, 1994. On October 20, 1994, two Drug Inspectors went to Meerut. They along with Drug Inspector of Meerut tried to contact the petitioners but the premises were found closed. On October 28, 1994, registered letter along with sealed sample portion was sent to the petitioners but no reply was received. The reminder dated 15.11.1994 also met the same fate. Reminder was sent to the Drug Inspector, Meerut, also on 25.10.1994 but no reply was received. On 17.11.1994 a telegram was sent to the petitioners to send the sample to Central Drug Laboratory, Calcutta, in their presence through the Court at the earliest, and copy of the telegram with a detailed note was also sent to the petitioners. On 16.11.1994 the complainant received a letter from the petitioners. Thus, M/s Glamour Laboratories and M/s Dass Medical Store did not cooperate in the proceedings. The complainant concluded that accused Nos. 1 and 2 have manufactured, sold, stocked and distributed spurious, adulterated, sub-standard and misbranded drug as defined under sections 17-B, 17-A, 16 and 17 and thus have contravened section 18(a)(i) which is punishable under section 27(b)(i), 27(c) and 27(d) of the Act.

8. The petitioners, being manufacturers of the