- (1.) THIS criminal misc. petition has been filed under section 482 Cr.P.C. by 12 petitioners named in the criminal misc. petition, as partners of Firm M/s. Talent Gujarat, Kohinoor Industries Compound, Ahmedabad. Except petitioner No.6, who is the manufacturing Chemist Firm M/s. Elite Pharma Pvt. Ltd., Ahmedabad.
(2.) THE short facts giving rise to this cri. misc. petition are that the Drug Inspector Mr. Rajesh Verma inspected the firm of present non-petitioner No.2 Smt. Nidhi, w/o Mr.Deepak Ganatra, on 12.05.1997in the presence of present non-petitioner No.4 and took the sample of Lorazepam Tablet. THE information in Form No.17 was given and drug was purchased through Bill No.5388 dated 12.05.1997. THE sample was divided into 4 equal quantity and same were sealed and one part of the sample was sent to the Government Analyst, Jaipur vide memorandum dated 13.05.1997 for chemical analysis and the Public Analyst, after examining the sample, sent the report in Form No.13 vide Letter dated 02.03.1998. THE drug inspector sent the copy of the report of the analysis to non-petitioner No.4 vide his letter dated 09 03.1999 which was given dasti to non-petitioner No.4 on 10.03.1998 and called for the record with regard to sale/purchase of the said medicine and also asked for recalling the distributed/sold stock. Again reminder was sent for non-compliance and, thereafter, the Drug Controller directed the Drug Inspector to collect all necessary documents of manufacturing Firm M/s. Talent Gujarat, Ahmedabad. The Assistant Drug Controller, Jodhpur vide his letter dated 01.12.1998 accorded his sanction to prosecute Firm M/s. Medisons, Opp. M.G. Hospital, Jodhpur. After completing all the above formalities, the Drug Inspector filed a complaint against petitioners, along with non-petitioner Nos.2 to 4, in the court of learned Addl.Chief Judicial Magistrate No.3, Jodhpur on 01.08.1999. The learned trial court, after taking cognizance, summoned all the petitioners. The summons were issued by the learned trial court on 03.05.2000 and same were served on the petitioners and the present petitioners appeared before the learned trial court on 28.06.2000. Due to the service of the process, much after the expiry of the date of the product, i.e. 1/2000, the petitioners have been deprived of an important and valuable right to get the sample re-analyzed by the Central Drugs Laboratory under section 25 (3) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act') and due to this, inordinate delay in filing the prosecution and issuing the process by the learned trial court, the right conferred on the petitioners under sub-sec. (3) of Section 25 of the Act of 1940 have been deprived. Therefore, by way of this Cri. Misc. Petition, the petitioners have prayed to quash or set aside the proceedings in Cri. Case No. 194/1999, State v. Smt. Nanda Devi & Ors., pending in the court of learned Addl. Chief Judicial Magistrate No.3, Jodhpur qua the present petitioners. Heard learned counsel for the petitioners, the learned public prosecutor and the learned counsel for non-petitioner Nos. 2 to 4. Counsel for the petitioner contended that PW/1 Rakesh Verma was examined by the trial court and in cross-examination he admitted that he did not sent copy of the Public Analyst's report to the manufacturing company and even he did not sent the part of the sample to the manufacturing company and there is no document available on record which shows that the copy of the analysis report was sent to the manufacturing company. In view of the admission of PW/1 Rakesh Verma, in cross-examination, and in the absence of any document available on record, the prosecution against the present petitioners is bad in the eye of law, because where such a valuable right has been infringed by the prosecution, the prosecution amounts to abuse of the process of law and the same is required to be quashed, while exercising the inherent powers conferred under section 482 Cr.P.C. Counsel for the petitioners relied on the judgment of the Hon'ble Apex Court in Hindustan Ciba Geigy Ltd. v. State of Rajasthan [1995 Cri LJ 618] and M/s. Medicamen Biotech Ltd. v. Rubina Bose, Drug Inspector [2008 AIR SCW 2201 : (AIR 2008 SC 1939)]. I have perused both the judgments cited by the learned counsel for the petitioners. In M/s. Medicamen Biotech Ltd.'s case (supra), the Hon'ble apex court, while dealing with sections 25 (3) (4) and 27 of the Act, held that where the right to get sample analyzed by the Central Drug Laboratory is deprived, complaint is liable to be quashed.
(3.) IN the present case, it is admitted case of the prosecution that the expiry date of the sample was January 2000 as per seizure memo and no copy of the report of the Public Analyst was sent to the firm M/s. Talent Gujarat and M/s. Elite Fine Private Ltd. and only after appearing in the court on 28.06.2000, the petitioners had the first opportunity to request the court to send the sample to the Central Drugs Laboratory, under the provisions of section 25 (3) of the Act. Here it would be proper to refer to section 25 of the Act, which is as under :- "25. Reports of Government Analysts,- (1) The Government Analyst to whom a sample of any drug [or cosmetic] has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the INspector submitting it a signed report in triplicate in he prescribed form. (2) The INspector on receipt thereof shall deliver One copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18A], and shall retain the third copy for use in any prosecution in respect of the sample. (3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken [or the person whose name, address and other particulars have been disclosed under section 18A] has, within twenty-eight days of the receipt of a copy of the report, notified in writing the INspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. (4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused: cause the sample of the drug [or cosmetic] produced before the Magistrate under sub-section (4) of section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein. (5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct." A reading of the aforesaid provisions would reveal that they lay down certain obligations as well as provides safeguards for a person from whom drug has been seized for analyzing and testing. Section 25 (3) provides that such evidence shall be conclusive unless the person from whom the sample was taken [or the person whose name, address and other particulars have been disclosed under section 18A] has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. ;