- (1.) THE instant petition under Section 482 Cr.P.C. has been filed asailing the order dated 7.5.2010 passed by Additional Session Judge, Sitapur in Session Trial No. 763 of 2004, whereby the learned Trial Court has rejected the objections raised on behalf of the petitioner with regard to the continuance of proceedings.
(2.) THE facts in brief are that the opposite party no. 2 filed a complaint in the court of Chief Judicial Magistrate, Sitapur for the offence committed by the petitioner under Section 16(1) (a), 17 -A (f) and section 18(a) (i) of the Drugs and Cosmetics Act, 1940. The petitioner, who is the Director of Vikram Laboratories Private Limited, Muzaffar Nagar is the manufacturer of the Drug namely Viktrim DS. From the contents of the complaint, it appears that on 18.7.1992 the opposite party no. 2 made an inspection of the shop of one M/s. Mahboob Medical Store, Sitapur and purchased the aforesaid drug of batch number 036 with manufacturing date of August 1991 and the expiry date was 30 months from the date of manufacture. The said sample was sent to the Public Analyst, Lucknow and according to the report dated 7.10.1992 the drug was found to be not of standard quality as defined under the Act. A show cause notice dated 17.10.1992 was issued to Sri Mahboob Ali the proprietor of M/S Mahboob Medical Store requiring him to submit the sale and purchase accounts. In pursuance thereof he disclosed the source of purchase of the drug, which was Rajpal Pharmaceuticals Aminabad Park, Lucknow. When the show cause notice was issued to the supplier, he disclosed that the drug was purchased from the petitioner, who was manufacturer of the drug. Thereafter, a show cause notice was issued to the petitioner on 6.2.1993, which was served upon him om 17.2.1993 alongwith the report of Public Analyst. The petitioner replied to the show cause notice by way of telegram dated 23.2.1993 challenging the report of the Public Analyst and also made a request to have the sample analysed by the Central Drug Laboratory as per the provisions laid down under Section 25 of the Act. The petitioner also sent a letter to the opposite party no. 2 to the same effect. However, the opposite party no. 2 filed a complaint before the Chief Judicial Magistrate, Sitapur upon which the notice was issued to the petitioner. In pursuance of the aforesaid notice, the petitioner appeared before the Magistrate and moved an application to drop the proceedings on various grounds. However, the learned Magistrate vide order dated 26.3.2004 held that he would not go into the objections because the trial was to be conducted by the Court of Sessions. He accordingly rejected the objections made on behalf of the petitioner. The petitioner challenged the aforesaid order dated 26.3.2004 by way of filing a petition before this Court being Criminal Misc. Case No. 169 of 2004, which was disposed of on 6.10.2004 with the direction to the petitioner to raise all those objections before the Session Court and also directed the Session Court to consider and decide the objections. The learned Additional Session Judge by the impugned order dated 7.5.2010 rejected the objections of the petitioner.
(3.) THE learned counsel for the petitioner has submitted that the complaint filed by the opposite party no. 2 is arbitrary and illegal as the same has been filed without complying with the mandatory requirements as provided under Section 25(4) of the Act. The aforesaid provision gives an option to the manufacturer or the dealer as the case may be, to get the sample tested and analysed by the Central Drug Laboratories and this option can be exercised within a specified period after the service of show cause notice. The petitioner exercised the aforesaid option by way of telegram as well as the application that being dissatisfied by the Public Analyst, he wants the sample to be re -tested by Central Drug Laboratories. However, inspite of request by the petitioner, the opposite party no. 2 did not send the sample for retesting and filed the complaint when the expiry date mentioned in the drug sample had passed. The drug was to expire in the month of January, 1994 and the complaint was filed on 23.02.1994. The submission on behalf of the petitioner is that the petitioner was deprived of his valuable right to get the sample tested again by the Central Drug Laboratories, because the complaint was filed after the expiry of the drug.;