- (1.) THE present petition u/S. 482 Cr.P.C. has been filed, challenging the order dated 9th July, 2003 passed by the learned Chief Judicial Magistrate, Jaipur in Criminal Complaint No. 1819/2003, whereby the learned Magistrate has taken cognizance against the petitioners for the offence under Sections 16(l)(a) and 18(a)(i) read with Section 17(i), 17(A)(1), 17(B)(d) and Section 27(a) and 27(d) of the Drugs and Cosmetics Act, 1940 (for short, "the Drugs Act").
(2.) ASSAILING the order taking cognizance as well as the complaint filed against the petitioners, learned counsel for the petitioners has vehemently submitted that in this case the medicines had been called back by the manufacturer because of some defects being found in the same batch number at Maharashtra and admittedly, the medicines were lying in the godown of M/s. Agarwal Brothers after having been received back from M/s. Khunteta Medicals, Laxmangarh. It has been submitted that the medicines were not kept for sale, but had been kept in the godown in pursuance of the recall of the medicines at the directions of the manufacturer. It has also been submitted that there was no sale of medicines to the Drug Inspector for the purposes of giving sample for the proposed prosecution and the Inspection Report dated 25.9.1996 discloses this fact that the price for the medicines were neither tendered nor charged. It has also been submitted that as per the report of the Government Analyst (State Government Analyst) the manufacturing date of the medicines was June 1995 and the expiry date thereof was October, 2000. It has been submitted that the report of the Analyst was prepared on 23rd September, 1996. Thereafter, the Drug Inspector requested for prosecution sanction, which was granted on 15.12.1998 and thereafter a complaint came to be filed in the Court on 9.7.2003. It has been submitted that no intimation within the expiry period of the drug was given to any person who was entitled to challenge the report of the Government Analyst for the purpose of having the same analyzed by the Central Drugs Testing Laboratory and as such the right of the accused to challenge the report as per the mandatory provisions of Section 25(4) of the Drugs Act was defeated. Lastly, it has been submitted that a bare reading of the complaint discloses that the complainant sets out the names of the persons who were responsible for the day to day affairs of the Company/firm sought to be prosecuted, but no such allegations have been made against the petitioners are simply the employees of M/s. Boehringer Mannheim India Ltd and were not concerned with the day to day affairs of the company, as such, their prosecution is perse illegal.
(3.) LEARNED counsel for the petitioner has placed reliance on the judgments of the Hon'ble Apex Court in Medicamen Biotech Limited vs Rubina Bose, Drug Inspector, reported in (2008) 7 SCC 196, for the purposes of showing that once the complaint was filed just near to the time when the shelf life of the seized medicines was to expire, then also the prosecution could not be permitted as there would be violation of the right of the accused to have the second sample examined by the Central Drugs Testing Laboratory. Counsel for the petitioners has also submitted that the report of the Analyst could only be read against the accused when the procedure established u/S. 23 of the Drugs Act was followed i.e. the Inspector had to tender a fair price of the drug when he proposes to seize the same for the purposes of filing a complaint. As such, no prosecution could be launched when the sample of the drug had not been taken for the purposes of prosecution under Chapter IV of the Drugs Act.;