Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(KAR) 23214

1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10^TH DAY OF JANUARY, 2023

BEFORE

THE HON’BLE Mr. JUSTICE HEMANT CHANDANGOUDAR

CRIMINAL PETITION No.3395 OF 2017

BETWEEN:

1.
M/S WIN DRUGS LTD.,

BHIWANI ROAD

JIND, HARYANA-126 102

REPRESENTED BY ITS

MANAGING DIRECTOR

NARESH MITTAL

S/O RAM KRISHAN

AGED ABOUT 51 YEARS

2.
NARESH MITTAL,S/O RAM KRISHAN

AGED ABOUT 51 YEARS

MANAGAING DIRECTOR OF

M/S WIN DRUGS LTD.,

BHIWAN ROAD, JIND,

HARYANA-126 102

PRESENTLY R/AT No.323/5
GANDHINAGAR JIND, HARYANA 126 102

...PETITIONERS

(BY SRI DESU REDDY G., ADVOCATE)

AND:

STATE AT THE INSTANCE OF
DRUGS INSPECTOR
BENGALURU CIRCLE-3
BENGALURU-560 001.

...RESPONDENT

(BY SRI.MAHESH SHETTY, HCGP)

2

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE COMPLAINT AND ENTIRE
PROCEEDINGS IN PCR NO.49/2013 NOW REGISTERED AS
SPL.C.C.NO.118/2013
FOR
THE ALLEGED VIOLATION
OF
SECTION 18(a) (i) R/W SECTION 17-B(d) WHICH ARE
PUNISHABLE UNDER SECTION 27(c) AND 27(d) OF THE DRUGS
AND COSMETIC ACT, 1940 PENDING ON THE FILE OF LEARNED
PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU.

THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

The right of an accused in a case involving a substandard drug to send the drug for reanalysis to the Central Government Laboratory under Section 25(4) of the Drugs and Cosmetics Act, 1940, cannot be deprived by filing a complaint after the expiry of the shelf life of the drug.

Headnote:
DRUGS AND COSMETICS ACT - SECTION 25 - SUBSTANDARD DRUG - COMPLAINT FILED AFTER EXPIRY OF SHELF LIFE - ACCUSED DEPRIVED OF RIGHT TO SEND DRUG FOR REANALYSIS - COGNIZANCE TAKEN BY MAGISTRATE NOT SUSTAINABLE
Fact of the Case:

A private complaint was filed under Section 200 of CrPC for an offence under Section 21 of the Drugs and Cosmetics Act, 1940, alleging that the subject drug manufactured by the petitioners/accused was of substandard quality. The Magistrate took cognizance of the offence and issued summons. The petitioners challenged the cognizance, arguing that the complaint was filed after the expiry of the shelf life of the subject drug, depriving them of the right to send the drug for reanalysis as specified under Section 25(4) of the Act.
Finding of the Court:

The court allowed the petition and quashed the impugned proceedings, holding that the cognizance taken by the Magistrate was not sustainable in law and that the continuation of criminal proceedings against the petitioners/accused would be an abuse of process of law.
Issues: Whether the cognizance taken by the Magistrate was sustainable in law, given that the complaint was filed after the expiry of the shelf life of the subject drug, depriving the petitioners/accused of their right to send the drug for reanalysis.
Ratio Decidendi: The court relied on Section 25(3) and (4) of the Drugs and Cosmetics Act, 1940, which provide that the report of the Government Analyst is not conclusive proof and that the accused has the right to get the sample tested by the Central Government Laboratory through the Court if they notify their intention to adduce evidence in controversion of the Government Analyst's report within 28 days of receiving it. The court held that the petitioners/accused were deprived of this right because the complaint was filed after the expiry of the shelf life of the subject drug.
Final Decision: The court allowed the petition and quashed the impugned proceedings.

Respondent has filed a private complaint under

Section 200 of Cr.P.C. for the offence under Section 21 of

the Drugs and Cosmetics Act, 1940 alleging that the

subject drug manufactured by the petitioners/accused was

substandard

quality.

Learned

Magistrate

took

cognizance of the aforesaid offence and issued summons.

Taking exception of the same, this petition is filed.

Sri. Desi Reddy.G., learned counsel for the

petitioners

submits

that

the

subject

drug

was

manufactured in the month of December-2010, and the

shelf life of the subject drug expired in the month of

November-2012. However, the complaint was filed after

expiry of the shelf life of the subject drug on 22.06.2013

depriving the petitioners/accused of sending the subject

drug for reanalysis of the drug as specified under Section

25(4) of the Act of 1940.

On the other hand, learned HCGP appearing for

the respondent-State submits that the subject drug

manufactured

the

petitioners/accused

was

substandard quality, and the learned Magistrate has rightly

taken cognizance of the aforesaid offence, and the same

does not warrant any interference and sought for dismissal

of the petition.

I have examined the submissions made by the

learned counsel for the parties.

The sample of the subject drug was collected

on 07.02.2011 and the same was sent to Government

Analyst on the very same day. The Government Analyst

submitted the report on 09.09.2011 in FORM-13. The Drug

Inspector sent a letter enclosing the copy of the report

submitted by the Government Analyst but the said letter

was returned back on 12.10.2011 stating that the firm was

closed, and thereafter the complainant pasted the FORM-

13 on the door of the accused No.1 on 30.1.2013 by which

time the shelf life of the subject drug had already expired,

thus, depriving the petitioners of their rights to send the

subject drug for reanalysis to the Central Drugs Laboratory

within 28 days of the receipt of the copy of the report as

specified under Section 25(3) of the Act, 1940.

A perusal of sub-section 3 of Section 25 of the

Act, 1940 specifies that the report of the Government

Analyst shall be evidence of the facts stated therein and

such evidence shall be conclusive unless the person from

whom the sample was taken as within 28 days of the

receipt of the report notified in writing, the Inspector or

the Court before which any proceeding in respect of the

sample are pending that he intends to adduce evidence in

controversion of the report.

Sub-section 4 of Section 25, of the Act, 1940

makes it abundantly clear that the right to get the sample

tested by the Central Government Laboratory through the

Court accrues to a person accused in the case, only, if he

had earlier notified of his intention under sub-section 3 to

adduce evidence in controversion of the report of the

Government Analyst.

The report submitted by the Government

Analyst stating that the subject drug manufactured by the

petitioners/accused was of substandard quality is not

conclusive proof. The Government Analyst report was

served on the accused on 30.1.2013 by pasting it on the

door of the accused by which time the shelf life of the drug

had expired , and the complaint was also filed after expiry

of the shelf life of the subject drug, thus depriving the

petitioners of their valuable right to send the subject drug

for Analyst to the Central Laboratory as specified under

Section 25(4) of the Act of 1940. Hence, cognizance taken

by the learned Magistrate is not sustainable in law and

continuation

criminal

proceedings

against

the

petitioners/accused will be an abuse of process of law.

Accordingly, I pass the following:

ORDER

Criminal Petition is allowed.

ii.

The

impugned

proceedings

SPL.C.C.

No.118/2013 on the file of Principal City Civil and Sessions

Judge, Bengaluru is hereby quashed.

Sd/-

JUDGE

RKA

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