LAL, J. - (1.) THIS petition under Section 482 Cr. P. C. is directed against the order dated 13. 2. 2002 passed by the learned Chief Judicial Magistrate, Jodhpur and seeks quashing of the criminal proceedings pending against them in criminal case No. 99/95.
(2.) BRIEFLY stated the relevant facts are that the then Drugs Inspector Heeralal Bansal inspected the shop of M/s. Mahesh Medical Store, Sarrafa Bazar, Jodhpur on 18. 3. 93 and took sample of Gentapar (tropical cream) and Gentamycin Sulphate cream and sent one of the samples directly to the Director, Central Indian Pharmacopoela Laboratory, Rajnagar, Gaziabad (CIPL) and on examination and analysis, the same was found to be substandard. So, a complaint was filed before the learned Court below on 28. 11. 95 for various offences under Indian Drugs and Cosmetics Act, 1940 (hereinafter referred as `the Act of 1940' ). The learned lower Court took cognizance of the offences and summoned the petitioners whereupon they filed S. B. Criminal Misc. Petition No. 200/2000 before this Court and while deciding the same vide order dated 4. 5. 2000, this Court directed the petitioners to raise all the objections first before the learned trial Court. In pursuance thereto, the petitioners filed an application before the learned Court below wherein they stated that the sample was directly sent to the Director. CIPL and, thus, they have been denied an opportunity of getting the sample tested and analysed by the Director, CIPL and their valuable right to get the sample analysed and tested has been defeated. In this regard, reliance was placed on the judgment in M/s. Bharat Insecticides Ltd. vs. State of Raj. (1), and it was prayed that the proceedings may be quashed against them on the aforesaid ground. The learned C. J. M. after hearing the parties and relying upon the judgment of Hon'ble Supreme court in the case of State of Haryana vs. Brij Lal Mittal and Ors. (2), held that the petitioners have not informed within the prescribed period of 28 days under Section 25 (3) of the Act to the Drugs Inspector that they intend to get the sample analysed and retested by the Director, CIPL and to adduce evidence in controversion of the report of the State Public Analyst and so they were not entitled to get the sample tested by the CIPL and accordingly, rejected their application. Hence, this petition. I have heard learned counsel for the petitioners and learned P. P. on behalf of State. The main contention of the learned counsel for the petitioners is that the sample was not sent to the State Analyst and was sent directly to the Director, Central Indian Pharmacopoeia Laboratory, Rajnagar, Gaziabad. As such, they have been deprived of their valuable right to get the sample tested by the CIPL and thereby they had been prejudiced in their defence. So these criminal proceedings amount to abuse of process of Court and they be, therefore, quashed. In this regard, reliance has been placed on:- (1) State of Haryana vs. Unique Farmaid (P) Ltd. and others along with State or Haryana vs. Northern Minerals Ltd. and Others vs. State of Haryana vs. Sant Lal (2) Calcutta Municipal Corporation vs. Pawan Kumar Saraf and Another (3) M/s. S. N. Chemicals vs. State of Rajasthan & Ors. (5) (4) Hindustan Ciba-Geigy vs. State of Rajasthan & Ors (5) (M/s. Bharat Insecticides Ltd. vs. State of Rajasthan) (supra) Learned P. P. has no on the other hand supported the order of the learned court below and has contended that this Court cannot quash the criminal proceedings in exercise of its inherent powers under Section 482 Cr. P. C. which ought to be exercised very sparingly and in the rarest of the rare cases.
(3.) I have given my anxious and thoughtful consideration to the submissions made at the bar and have perused the record as well as the authorities relied upon by the learned counsel for the petitioners. At the outset, it will be apposite to extract Section 25 of the Act which reads 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 the 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 of 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 the 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 a 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 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. " From a bare perusal of sub-section (3) it is manifest that the report of the Government Analyst 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 or other particulars have been disclosed under Section 18-A has within 28 days of the receipt 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. Sub-section (4) also makes it abundantly clear that the right to get the sample tested by the Central Government Laboratory (so as to make this report override the report of the Analyst) through the Court accrues to a person accused in accordance with sub-section (3), his intention of adducing evidence in controversion of the report of the Government Analyst. To put it differently, unless requirement of sub-section (3) is complied with by the person concerned, he cannot avail of his right under sub-section (4) Thus, the right to get the sample examined by the Central Drugs Laboratory through the Court before which the prosecution is launched arises only after the person concerned notifies in writing the Inspector or the Court concerned within twenty-eight days from the receipt of the copy of the report of the Government Analyst that he intends to adduce evidence in controversion of the report. ;