Delhi High Court
A.K.Bhat & Ors. vs State Through Tohit Bajpai Drug ... on 19 September, 2013
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: August 13, 2013
Judgment Pronounced on: September 19, 2013
+ CRL.M.C. No.5149-51 of 2006
A.K. BHAT & ORS. .....Petitioners
Through: Mr. Ravi Sharma & Mr. Ankit
Mishra, Advocates
Versus
STATE THROUGH TOHIT BAJPAI DRUG INSPECTOR
.....Respondent
Through: Mr. Rohit Bajpai, Drug Inspector
for Respondent-State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
% JUDGMENT
1. Quashing of Criminal Complaint No.121/2004 under Sections 18
(a) (i) read with Section 17-B punishable under Section 27 (c) and 27 (d)
of The Drug and Cosmetics Act, 1940 and trial court's order of 1st March,
2004 summoning petitioners as accused, is sought in this petition on three
counts.
2. Firstly, on the ground that patent and proprietary medicines are a
class of medicines not falling within the Indian pharmacopoeia or any
other recognized western pharmacopoeia and keeping in view their
unique formulation, they cannot be analyzed as per any standard form test
for any of the components of the drug sought to be tested.
Crl.M.C. No.5149-51/2006 Page 1
3. Secondly, on the ground that statutory right of re-testing provided
under Sub-section 3 of Section 25 of The Drugs and Cosmetics Act, 1940
stands defeated in view of respondent's Communication of 9th October,
2003 (Annexure-G) intimating that there is no residual quantity of sample
for re-checking.
4. Thirdly, on the ground that Government analyst's report of 28 th
May, 2003 (Annexure-C) stands vitiated due to procedural violation of
the procedure as described by Rule 46 of The Drugs and Cosmetics
Rules, 1945.
5. The case set up by respondent is that on 11th April, 2002, a sample
of Tixylix Children's Cough Linctus was lifted from petitioners' retailer-
M/s. Kay Sons, New Delhi and as per Government Analyst Report, it
tested negative for Pholcodine and was accordingly declared as a
spurious drug and as per respondent, Public Analyst Report was made
available to M/s. Kay Sons, New Delhi from whom the sample of the drug
in question was taken and since no request for testing was received from
M/s. Kay Sons, New Delhi or from petitioners within statutory period of
28 days as provided under Section 25 of The Drugs and Cosmetics Act,
1940, so complaint (Annexure-A) was filed before the court of competent
jurisdiction and accordingly petitioners have been summoned as accused
by the trial court.
6. At the hearing, it was strenuously contended by learned counsel for
petitioners that neither petitioner-company nor first and second petitioner,
who are the Directors of third petitioner-company were made aware of
Crl.M.C. No.5149-51/2006 Page 2
Government Analyst Report (Annexure-C) in time and thereby petitioners
had lost their valuable right of getting their sample re-tested. To contend
that infringement of statutory right under Sub-Section 3 of Section 25 of
The Drugs and Cosmetics Act, 1940 vitiates the entire proceedings,
reliance was placed by petitioners' counsel upon decisions in Municipal
Corporation of Delhi v. Ghisa Ram AIR 1967 SC 970; State of Haryana
v. Unique Farmaid (P) Ltd. And Others v. (1999) 8 SCC 190 and
Medicament Biotech Limited and Another v. Rubina Bose, Drug
Inspector (2008) 7 SCC 196.
7. Reliance was also placed by petitioners' counsel upon decision in
State of Maharashtra v. Jawaharlal Shamlal Ujawana rendered in 1979
Crl.L.J.530 to contend that Rule 46 of The Drugs and Cosmetics Rules,
1945 is mandatory and must be strictly followed and if breached, then the
proceedings under The Drugs and Cosmetics Act, 1940 are vitiated.
Finally, it was contended with much vehemence by learned counsel for
petitioners that there is no justification whatsoever in continuing
petitioners' prosecution in the complaint in question as Government
Analyst Report does not describe the method adopted for carrying out the
requisite test and since statutory Rule 46 of The Drugs and Cosmetics
Rules, 1945 stands violated and petitioners' statutory right for getting the
sample re-tested stands defeated as no residual quantity of the sample is
available for re-checking, therefore, it is a fit case for quashing the
complaint in question and the impugned summoning order.
8. On behalf of respondent, the stand taken is that there is no violation
of Rule 46 of The Drugs and Cosmetics Rules, 1945 and as per Section
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18A of The Drugs and Cosmetics Act, 1940 name of manufacture of drug
is to be disclosed by the retailer and in the instant case, it was belatedly
disclosed due to which petitioners have lost their statutory right under
Section 25 of The Drugs and Cosmetics Act, 1940 to get the sample re-
tested within mandatory period of 28 days.
9. Attention of this Court was drawn to Sub-Section 3 of Section 25
of The Drugs and Cosmetics Act, 1940 to point out that the right to
challenge the test report of the Government Analyst is available to the
person from whom the sample was taken or the aggrieved party can move
an application before the concerned court to get the sample re-tested and
in the instant case, petitioners' had not filed any such application before
the trial court and so, the decisions relied upon on behalf of petitioners'
are of no avail to them. Lastly, it was submitted on behalf of respondent
that Government Analyst has followed validated procedures, as
prescribed in Schedule B read with Rule 124B of The Drugs and
Cosmetics Rules, 1945 for testing the sample in question and so
Government Analyst's report cannot be faulted with. Reliance was placed
upon Apex Court's decision in M/s. Amery Pharmaceuticals & Anr. V.
State of Rajasthan (2001) 4 SCC 382 to assert that the manufacture is not
entitled to get a copy of Government Analyst's report as a matter of right
because the sample in question was taken from the Retailer. Thus,
dismissal of this petition is sought.
10. Upon consideration of the submissions advanced on behalf of both
the sides and on perusal of the complaint in question, Government
Analyst's report, material on record and the decisions cited, it transpires
Crl.M.C. No.5149-51/2006 Page 4
that it is not the case of petitioners' that they had moved concerned
authority or the trial court within the statutory period to seek re-testing of
the sample in question and so prima facie, it cannot be said that there is
any violation of Rule 46 of The Drugs and Cosmetics Rules, 1945 or Sub-
Section 3 of Section 25 of The Drugs and Cosmetics Act, 1940.
11. Apex Court in Ghisa Ram (supra), Medicamen (supra) and Unique
Farmaid (supra), found that complaint was filed after the expiry of the
shelf life of the drug which deprived accused of valuable right of re-
testing, necessitating quashing of the proceedings. There is no doubt that
when mandatory procedure is contravened to the prejudice of accused,
then certainly, dismissal/quashing of the complaint can be sought but in
the instant case, there is no tangible basis to conclude at the threshold of
these proceedings that there is apparent contravention of Rule 46 of The
Drugs and Cosmetics Rules, 1945 or violation of Sub-Section 3 of
Section 25 of The Drugs and Cosmetics Act, 1940 as petitioners' letters of
11th July, 15th July and 25th July, 2003 (Annexures- D to F) upon which
petitioners' case is based, are disputed and thus required to be tested at
trial. Therefore, it would be premature for this Court to rely upon
aforesaid correspondence of petitioners' to conclude that petitioners'
statutory right under Section 25 (3) of The Drugs and Cosmetics Act,
1940 stands violated.
12. The parameters within which the inherent jurisdiction of this Court
under Section 482 of Cr.P.C. is to be exercised are well known. It needs
no reiteration that to quash criminal proceedings at its threshold, the
complaint or the FIR, as the case may be, has to be taken on its face value
Crl.M.C. No.5149-51/2006 Page 5
and thereafter, if it is found that the offence alleged is not made out or
that the violation of mandatory provision of law vitiates the entire
proceedings, then only criminal proceedings can be quashed. On this
aspect, pertinent observations of the Apex Court in State of Haryana v.
Bhajan Lal 1992 Supp (1) SCC 335 are as under: -
"Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused."
13. In the instant case, there is no apparent basis to conclude that
Government Analyst Report ought to be excluded from consideration
without it being tested at trial. Whether petitioners' right to get the sample
in question re-tested is defeated or not is a moot question which cannot be
answered at this initial stage as petitioners' correspondence is infact the
defence of petitioners' which is refuted and is thus, required to be tested
at trial. The applicability of Apex Court's decision in Emery (supra) to the
facts of the instant case is also required to be seen at trial after the factual
position is established. Thus, there is no basis for this Court to opine at
this initial stage of these criminal proceedings that Government Analyst
Report must be outrightly rejected or that petitioners' statutory right to get
the sample in question re-tested stands violated justifying quashing of the
proceedings arising out of Complaint (Annexure-A).
14. In view of the aforesaid, it cannot be said that the continuance of
proceedings arising out of the complaint in question is unwarranted or an
Crl.M.C. No.5149-51/2006 Page 6
abuse of the process of the court. Resultantly, this petition and the
application are dismissed with liberty to petitioners to raise the pleas
taken in this petition at the appropriate stage of trial.
15. This petition is accordingly disposed of while clarifying that any
observation made in this judgment shall not be construed as an expression
on merits, lest it may prejudice either side at trial. While vacating interim
order, trial court is directed to expeditiously proceed with the trial in
accordance with the law.
16. Trial court be apprised of this order forthwith.
(SUNIL GAUR)
Judge
SEPTEMBER 19, 2013
s
Crl.M.C. No.5149-51/2006 Page 7
