Compliance with Section 25 of the Drugs and Cosmetics Act, 1940 is mandatory, and failure to fulfill its requirements can render a prosecution illegitimate.

J.B. Garg, J. - Devinder Kumar Jain of Faridabad is being prosecuted for offences under Section 18(4)(i) of the Drugs and Cosmetics Act, 1940 punishable under Section 27(d) of the Act and charge in this regard has been framed by Shri M.M. Bhalla, Chief Judicial Magistrate, Hoshiarpur on 8-5-87. Aggrieved against it the petitioner has moved this Court under Section 482 of the Code of Criminal Procedure and is seeking quashment.

Briefly, the facts as alleged are that on 9-10-83 a sample of Septran Paediatric was obtained from M/s. Cheap Medical Store, Mukerian and it was not found to be of standard quality, according to the Government Analyst Punjabs report dated 13-7-1984. The petitioner is the manufacturer and is the proprietor of M/s Wyles Pharmaceuticals, Faridabad.

2. The petitioner has mainly challenged the proceeding alleging that the requirements of Section 25 of the Drugs and Cosmetics Act, 1940, have not been fulfilled. It shall be useful to reproduce the relevant provisions of Section 25 of the Drugs and Cosmetics Act, 1940, which are as under :-

"(3) Any document purporting to be a report signed by a Govt. Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from who 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 before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of report.

(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analysts report, the Court may of its own motion or its discretion at the request either of the complainant or the accused cause the sample of the drug or cosmetics produced before the Magistrate under Sub-section (4) of Section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.

(5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct."

3. A perusal of the complaint shows that one sealed sample was sent to M/s. Wyles Pharmaceutical, Faridabad but the aforesaid manufacturer made a protest that he did not agree with the report of the Government Analyst, Sub-section (3) of Section 25 of the Act provides and opportunity to the petitioner that the sample be analysed in the Central Drugs Laboratory. The relevant part of the statement of the Drugs Inspector recorded in the trial Court prior to the framing of the charge which has been referred to in this petition is as under :-

"It is correct that accused Devinder Kumar challenged the report and requested me to send the Drugs in question for reanalysis to Central Drugs Laboratory. I did not send the sample portion for reanalysis for Central Drugs Laboratory in spite of this request...."

4. A perusal of this piece of evidence shows that the Drugs Inspector did not send the sample to the Central Drugs Laboratory and the requirement of sub-section (3) of Section 25 of the Act which was mandatory, was not fulfilled.

5. The learned counsel for the petitioner has referred to Drugs Inspector v. M/s Modern Drugs and another 1982(II) FAC 343 wherein it was held that compliance of Section 25 of the Act was mandatory. In Dharam Deo Gupta v. State 1979(1) FAC 382, it was held that it was open to an accused to rebut the report of the Public Analyst. The learned counsel for the respondent State could not contradict the question of fact and