Advocates:
['M/S M Y BHAT', '', 'PRINCE HAMZA', 'NIDA NAZIR', '', 'T M SHAMSHI', 'MASOODA JAN']

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Reserved on: 12.10.2022

Pronounced on: 01.11.2022

CRMC No.169/2016

M/S SWISS GARNIER LIFE SCIENCES

AND OTHERS

... PETITIONER(S)

Through: - Mr. Prince Hamza, Advocate, vice

Mr. M. Y. Bhat, Sr. Advocate.

Vs.

UNION OF INDIA

…RESPONDENT(S)

Through: - Ms. Masooda Jan, Advocate.

CORAM:

HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

1)

The petitioners have challenged the complaint filed by

respondent Drugs Inspector against them and the co-accused before

the Court of Chief Judicial Magistrate, Srinagar, alleging commission

of offences under Section 18(a)(i) read with Section 27(d) of the

Drugs and Cosmetics Act, 1940.

2)

It appears that on 26.04.2013, sample of a drug, namely, Zargo-

50

(Losartan

Potassium

Tab

IP)

Batch

No.BPSG12198,

manufacturing date 10/2012, expiry date 9/2014, manufactured by

petitioner No.1, was lifted from the premises of co-accused EFF AAY

Traders Pharmaceutical Distributors House No.131, Nursingh Garh,

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CRMC 169/2016

Srinagar, by the respondent Drugs Inspector. One portion of the sealed

sample of the drug was sent to the Government Analyst i.e., Regional

Drugs Testing Laboratory, Sector 39-C, Chandigarh, and vide report

dated 26.06.2013, it was reported that the drug in question is of

standard quality.

3)

Vide order dated 10.09.2013, passed by a Division Bench of

this Court in PILNo.6/2013 titled Dr. Nisar ul Hassan and another vs.

State of J&K and Ors., general directions were issued that the samples

collected by Drug Inspectors be sent to more than one laboratories for

testing so as to dispel any impression of error or any other extraneous

consideration. Accordingly, the respondent Drugs Inspector sent

sample of the drug in question to Central Drugs Laboratory, Kolkata,

for re-analysis through the court of Judicial Magistrate, 1^st Class,

Jammu. As per the test report issued by Central Drugs Laboratory,

Kolkata, on 28.02.2014, the sample in question was found to be of not

a standard quality. Accordingly, the prosecution was launched against

the petitioners who happen to be the manufacturers of the drug in

question and the co-accused by filing a complaint before the Court of

Chief Judicial Magistrate, Jammu, which later on came to be

presented before the Court of Chief Judicial Magistrate, Srinagar.

4)

The petitioners have challenged the impugned complaint and

the order passed by the learned Chief Judicial Magistrate, Srinagar,

whereby process has been issued against them, on the grounds that the

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CRMC 169/2016

manufacturer has a statutory right to controvert the report of the

Government Analyst by adducing evidence but in this case said right

of the petitioners has been violated. It has been contended that the

respondent Drugs Inspector has not issued any notice to the petitioners

under Section 23 and 25 of the Drugs and Cosmetics Act nor a portion

of the sample was sent to the petitioners. It has been contended that

the impugned complaint has been filed by the respondent Drugs

Inspector at a time when there was no time left for the date of expiry

of the drug in question and, as such, the petitioners had no opportunity

of applying to the Court with a request for re-analysis of the sample.

According to the petitioners, on this ground alone the prosecution is

liable to be quashed in terms of the law settled by the Supreme Court

on the issue. It has been contended that under the garb of the orders of

the High Court, the statutory protection given to a manufacturer

cannot be taken away. It is also contended that even otherwise the

variation in the content of the drug in question is not of a significant

nature as would make the drug spurious and, as such, it was not open

to the respondent Drugs Inspector to launch prosecution against the

petitioners.

5)

I have heard learned counsel for the parties and perused