The High Court of Jharkhand dismissed an appeal for quashing the order taking cognizance as well as the entire criminal proceeding taken under Section 27 (d) of the Drug and Cosmetic Act, 1940.
The court ruled that Section 23 of the D.C. Act mandates the distribution of drug samples, with a provision for re-testing under Section 25 (4), but in this case, the delay in dispatching the samples didn't prejudice the accused, and the report was from the Central Drugs Laboratory, making Section 25(3) inapplicable.
Brief Facts:
The petitioner is the manufacturer and distributor of eye ointment being sold in the name of Chloramphenicol. The drug was seized and, on chemical examination was found to be of not of standard quality. The sample did not conform to the I.P. with respect to the test of “particle size”. There were some bizarre delays in the process of dispatch of the sample and its receipt by the Central Drugs Laboratory, Kolkata.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner contended that there is non-compliance with the mandatory requirement of Rule 23(4)(i) Drugs and Cosmetics Act, 1940, and the cognizance has been taken after the expiry of the drug and due to the delay in taking cognizance, the petitioner was deprived of the opportunity to move the learned Court below to send the sample for re-testing. It is further contended that the sample of the drug was not provided to the manufacturer.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent contended that the seizure was made which was dispatched and received by CDL, Kolkata, and as per the report, “the sample did not conform to IP with respect to the test for ‘Particle Size”. It is further contended that the test was conducted before the expiry of the said medicine and as there did not exist any Government Analyst in the State, therefore, the sample was directly sent for analysis to the Central Drug Laboratory Kolkata.
Observations of the court:
The court observed that Section 23 of the D.C. Act requires sampling of the drugs into four parts one portion is required to be given to the retailer; one to be sent to the Government Analyst, one to the Court, and the last one to the manufacturer whose name, particulars, etc. is disclosed under Section 18-A of the Act and under Section 25, a copy of the report of the drug analysis is to be given to the parties concerned from whom sample has been taken and the right of the Party from whom the sample is taken or the one whose name appears as under Section 18-A, for getting in retested is unequivocal unless the sample has already been tested or analysed in the Central Drugs Laboratory.
The court further observed that the provision for re-testing under Section 25 (4) arises when after the receipt of the report of the Government Analyst, the person from whom the sample is taken or the one whose name appears under Section 18 A intends to controvert the evidence of analysts report and in the present case, as the report of analysis was by the CDL, Section 25(3) for re-testing shall have no application, as the same is expressly barred under Section 25 (4).
The court held that an unexplained inordinate delay in dispatch of the samples and receipt of it at the CDL but a mere delay in the process of dispatch cannot be a ground for quashing the cognizance unless it has occasioned in prejudice to the accused or there is reasonable ground to infer that it had resulted in the deterioration of the quality of the drug and the samples were tested by the Central Drugs Laboratory before the expiry of the shelf-life. The court further held that the delay in dispatch did not cause any prejudice to the petitioner.
The decision of the Court:
The court dismissed the petition.
Case Title: Kunj Bihari Goyal & Ors. Vs. State of Jharkhand
Coram: Hon’ble Mr. Justice Gautam Kumar Choudhary
Case No.: Cr.M.P. No. 3028 of 2022
Advocate for the Petitioner: Mr. Rakesh Kumar, Mr. Rajesh Kumar, Mr. Amit Kumar, Mr. Maninder Kumar Sinha
Advocate for the Respondent: Mr. Vineet Kumar Vashistha, Mr. Shiv Shankar Kumar
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