Failure by the prosecution to follow mandatory statutory procedures under the Drugs and Cosmetics Act, 1940—specifically regarding the appointment of a gazetted Drug Inspector and the right of the accused to challenge the Government Analyst's report—vitiates the trial and renders a conviction unsustainable.

Revision filed under Section 397 /401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the CriminalRevisionCase, the High Court may be pleased topresent this memorandum of grounds of Crl.R.C., before this Hon'ble Court against the Judgment dated 17.11.08 passed in Crl.A.No.216 of 2007 on the file of the Court of the I Addl. Dist. & Sessions Judge, Guntur, confirming the Judgment dated 28.06.07 passed in C.C.No.226 of 2007 on the file of the Court of the I Addl. Judl. First Class Magistrate, Tenali.

THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA

CRIMINAL REVISION CASE NO: 1680/2008

The Court made the following:

The instant Criminal Revision Case has been preferred against the Judgment dated 17.11.2008 passed by the learned I Additional District & Sessions Judge, Guntur confirming the Judgment dated 28.06.2007 passed in C.C.No.226 of 2004 by the learned I Additional Judicial Magistrate of I Class, Tenali wherein and where under present petitioners were found guilty for the offence punishable under section 27(d) of the Drugs & Cosmetics Act, 1940 (‘said Act’ in short) for contravening section 18(a) (1) r/w Section 16 punishable under Section 27(d) of the Drugs & Cosmetics Act, 1940.

2. Learned counsel for the petitioner at the outset submits that the impugned order of conviction and sentence is illegal as PW.1 is not a Gazetted inspector or authorized person to make a seizure in respect of the alleged offence under said Act. He further submits that the mandatory provisions under section 20, 21, 22, 23(4) (iii), 23(6), 25(3) (4) (5) Rule 45, 76 of Drugs & Cosmetics Rules, 1945 are not properly followed by prosecution. It is further argued that the offence punishable under the Drugs & Cosmetics Act, 1940 required very technical proof of the matter. In this case, the technicalities envisaged under the provisions of law has not been properly complied with by the prosecution and thereby conviction against the present petitioner is liable to be set aside.

3. It is further argued that the petitioner No.1 is a company, petitioner Nos.2 and 3 are the directors, they are not directly involved regarding day to day business of the company, even if, any offences were committed, the present petitioners cannot be liable for the said offences, unless it has been specifically proved regarding their involvement in commission of the said offences.

4. It is further argued that the drug which was seized as date of expiry on June, 2003 but the complaint has been lodged on June, 2004 after expiry period of the said drug. It is further argued that in terms of section 25 of the Drugs & Cosmetics Act, 1940. Reports of the Government Analyst was sought to be distinguished by the company within 28 days from the date of receipt of the report. But the said challenge by the company was not adopted and the company has no option to contradict the report of Government Analyst. It is further submitted prosecution does not follow mandatory provisions of Section 25 of the said Act, 1940, thus the conviction and sentence passed by the learned Trial Court, confirmed by the learned Appellate Court required to be set aside.

5. Sri K.Sandeep, learned Assistant Public Prosecutor submits that though in this type case there are some technicalities which required to be complied with by the prosecution but the prosecution has successfully proved against the present petitioner beyond all reasonable doubt. He