A conviction under the Drugs and Cosmetics Act is untenable if the accused cannot effectively contest the quality of the drug due to procedural delays resulting in expiration.

O R D E R

The concurrent verdicts of the Chief Judicial Magistrate, Thrissur, and Additional Sessions Court (Adhoc) Fast Track-I, Thrissur in C.C No.20/1996 and Crl.A No.657/2004 respectively, convicting and sentencing the petitioner for the commission of offence under Section 18 (a)(i) of the Drugs and Cosmetics Act, 1940 (hereafter referred as ‘the Act’), are under challenge in this revision petition.

2. The prosecution case is that the petitioner, who is the Proprietor of a manufacturing unit by name M/s.Vetas Pharmaceuticals, Thrissur, manufactured Magnesium Sulphate paste for sale, which were not of standard quality. An inspection conducted by the Drug Inspector, Thrissur at a retail shop in Kozhikode on 16.11.1993, culminated in the institution of this criminal prosecution against the petitioner. It is stated that the sample of Magnesium Sulphate paste, manufactured by the petitioner herein and kept for sale at the aforesaid retail shop, when collected and sent for analysis at the Government Analyst’s Laboratory, revealed that the aforesaid drug was not of standard quality.

3. In the trial before the learned Magistrate, the prosecution examined 10 witnesses as PW1 to PW10, and marked 28 documents as Exts.P1 to P28. One defence witness was examined as DW1. After analysing the aforesaid evidence, the learned Magistrate found the petitioner guilty of commission of offence under Section 18 (a)(i) r/w Section 27(d) of the Act, and convicted him thereunder. He was sentenced to undergo simple imprisonment for a period of one year and to pay fine Rs.10,000/- with a default clause of simple imprisonment for three months. In the appeal filed against the aforesaid verdict, the learned Additional Sessions Judge found that there was no reason to interfere with the findings of the learned Magistrate. Accordingly, the appeal was dismissed, confirming the conviction recorded and sentence awarded by the Trial Court. Aggrieved by the above concurrent verdicts of the Courts below, the petitioner is here before this Court with this revision petition.

4. During the pendency of this revision petition, the revision petitioner expired, and his legal representatives were impleaded as additional revision petitioners 2 and 3.

5. Heard the learned counsel for the additional revision petitioners 2 and 3, the learned Additional Director General of Prosecutions for the first respondent, and the learned Public Prosecutor representing the second respondent.

6. It is apparent from the facts and circumstances of the case that the petitioner did not get an opportunity for the analysis of the sample at the Central Drugs Laboratory, before the expiry of shelf life of the sample of drug collected by the Drug Inspector. A request made by the petitioner before the learned Magistrate, to send one of the samples to the Central Drugs Laboratory, was rejected stating the reason that he did not notify in writing to the Inspector concerned within 28 days of the receipt of the report of the Government Analyst that he intends to adduce evidence in controversion of the above report. The aforesaid order of the learned Magistrate was challenged by the petitioner by filing Crl.M.C No.2297/1996 before this Court. The long delay of about 10 months in getting the report of analysis from the Government Analyst, and the further delay of about 16 months in the filing of complaint, were pointed out by the petitioner in the aforesaid Crl.M.C before this Court, as the reason for not making a request in the above regard at the earliest opportunity. The aforesaid argument of the petitioner was accepted by this Court, and accordingly, an order was passed on 09.03.1998 directing the Chief Judicial Magistrate, Thrissur to send the sample to the Central Drug