P.K.LOHRA,J. - (1.) Petitioner-company, incorporated under the Indian Companies Act, 1956, has preferred this criminal Misc. petition for seeking quashment of the entire proceedings in Criminal Case No. 102/2011, pending before Sessions Judge, Bikaner (for short, 'learned trial Court').
(2.) The facts, in brief, giving rise to this petition are that a complaint came to be filed against petitioner Company under Sections 27(b)(i) and 27(d) of the Drugs and Cosmetics Act, 1940 (for short, 'Act') before the learned trial Court, inter-alia, alleging therein that on 10th of September 1999 Drug Inspector inspected the premises of M/s. Bikaner Sahakari Upbhokta Wholesale Bhandar Limited at Indira Market and purchased Rifampicin capsule of brand name R-CIN-600 having Batch No. 907 with the date of manufacturing July 1999 and expiry date of June 2001. Said capsule was sampled as per the provisions of the Act and thereafter sent for analysis to the Central Drugs Laboratory, Kolkata. The Central Drugs Laboratory, Kolkata, by its report dated 28th of August 2000, found the sample to be sub-standard not conforming to Indian Pharmacopoeia (I.P.). On receipt of the report, the same was forwarded to the vendor, who is arrayed as accused No. 2 in complaint, and thereafter usual proceedings as per the Act initiated and when it was revealed that manufacturer of the drug in question is petitioner-Company, a copy of the report was endorsed to it on 21st of April 2001. The petitioner-Company, immediately after receiving the report, on 30th April 2001 informed the Drug Inspector that the report is not acceptable to it. The petitioner-Company further clarified to the Drug Inspector that it intends to adduce evidence in controversion of the report. Be that as it may, no endeavour was made by the Drug Inspector to acknowledge the communication sent by petitioner-Company for almost seven months and ultimately on its behalf an application under Section 25(4) of the Act was filed before Chief Judicial Magistrate, Bikaner on 27th of November 2001, which was almost five months after expiry of the sample. Pursuant to the said application, sample was forwarded and on re-analysis the report was received on 24th of April 2002. In the said report, the Analyst desisted from giving any opinion regarding the sample precisely by citing the reason that sample was received after the date of expiry. Therefore, no opinion was expressed by the Analyst in connection with standard and quality of the said sample. Subsequent to the receipt of report dated 24th April 2002, requisite sanction was accorded for filing prosecution against responsible persons of the Company after soliciting their names from Food and Drugs Commissioner, Maharashtra. Finally, the complaint was filed in the Court on 1st of July 2006.
(3.) Learned counsel for the petitioner, Mr. Vineet Jain, has strenuously urged that in the instant case denial of right to the petitioner-Company to adduce evidence in controversion of the Central Drugs Laboratory report despite notifying its objection in writing within the stipulated period, has vitiated the entire proceedings. Learned counsel, Mr. Jain, would contend that a valuable right of the Company to adduce evidence in controversion of the report envisaged under sub-Section (3) and (4) of Section 25 of the Act is clearly abrogated inasmuch as when the sample was sent for re-analysis it had already expired. Learned counsel, therefore, submits that in view of denial of legitimate right of defence to the petitioner-Company, allowing proceedings to continue in the matter would be a sheer abuse of the process of the Court. In support of his contentions, learned counsel for the petitioner has placed reliance on following judgments: (i) State of Haryana v. Brij Lal Mittal and Ors. [1998 SCC (Cri.) 1315] (ii) M/s. Cadila Health Care Ltd. v. The State of Rajasthan and Ors. [2007 Cri. L. J. 1899] .;