Gujarat High Court
M/S Amrut Medical Agency Thro ... vs State Of Gujarat on 27 September, 2023
Bench: Sandeep N. Bhatt
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1161 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 19775 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 19924 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M/S AMRUT MEDICAL AGENCY THRO JAYDEEP KANTIBHAI BAVARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2,3
PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/09/2023
ORAL JUDGMENT
1. By way of these petitions under Article 226 of
the Constitution of India read with Section 482 of the
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Code of Criminal Procedure, 1973 (hereinafter
referred to as "the Code" for the sake of brevity), the
petitioners have prayed for quashing and setting aside
the impugned complaint filed against the petitioners
being Criminal Case No.3615 of 2010 filed by
respondent No.2 in the Court of learned Chief Judicial
Magistrate First Class, Navsari for the offence
punishable under Sections 18(a)(i) and 27(c) of the Drugs and
Cosmetics Act, 1940 (hereinafter referred to as "the Act" for
the sake of brevity).
2. It reveals from the record of the petitions that the
petitioners are original accused Nos.1 to 3, 4 to 6, 7 to 9,
11 and 12. The record further reveals that the petitioners
herein have purchased the drug namely Rabitop tablet from
its manufacturer bearing manufacturing date as "February
2006" and its expiry date being "January 2008" having Batch
No.B.A.H.G.611. It appears from the record of the
petition and more particularly the impugned complaint
that on 23.1.2007, the Drug Inspector attached to the
office of the Assistant Commissioner, Controller of Food
and Drugs, Valsad took samples of 20 Rabitop
tablets from original accused Nos.1 to 3 (the local stores
situated at Navsari). The record further reveals that the said
drug was sent for examination and analysis to the Food and
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Drug Laboratory situated at Vadodara on 6.2.2007. By its
test report No.Q/1/15/08(D) dated 9.1.2008, the Laboratory
declared in the said report that the sample was below
standard on account of absence of an active element
called "Rabibrazol Sodium". It further appears that on receipt
of such a report, the department by a communication dated
22.2.2008 informed the petitioners and directed them to stop
purchase-sale of the drug and recall all the issues made
earlier from the wholesale market and also sent a copy of
the said report as envisaged under Section 25(2) of
the Act. It appears from the record that on receipt of
the said communication, one of the accused, by
communication dated 7.3.2008, informed the Drug Inspector,
Valsad and also forwarded the letters written to
the distributors for recalling the product from the market
including the letter written to the Laboratory concerned
intimating them to return Rabitop tables bearing
Batch No.B.A.H.G.611. In the said communication,
it is clearly mentioned that the aforesaid exercise has been
done without prejudice to its right to contest the
Government Analyst's Report as regards quality of
the product. It clearly reveals from the record that by
communication dated 8.3.2010, the competent authority in
the State of Gujarat granted approval to file a complaint and
ultimately, impugned complaint came to be filed on 27.7.2010
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before the Court of learned Chief Judicial Magistrate
First Class at Navsari and by the order of
even date, the learned Magistrate has issued process and
being aggrieved by the same, the present petition is filed.
3. Heard Mr. Majmudar, learned advocate for the petitioners
and Mr.Jayswal, learned Additional Public Prosecutor for
the respondents.
4. Mr.Majmudar, learned advocate for the petitioners has
taken this Court through the factual matrix arising
out of these petitions and the impugned complaint.
The learned advocate for the petitioners pointed out that
the drug in question was not manufactured by
the petitioners, but they have purchased the same from the
original manufacturer. It is submitted that the Batch
number in question was manufactured in the month of
February, 2006 and it had validity of two years i.e. upto
January, 2008. The learned advocate for the petitioners
further relying upon the contents of the
impugned complaint submitted that as such the Drug
Inspector visited original accused Nos.1 to 3 on
23.1.2007 and the drugs so collected were sent for
analysis on 6.2.2007 to the Government Analyst of
Food and Drug Laboratory at Vadodara and the
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Laboratory has given its report dated 9.1.2008. Relying
upon the further admitted facts, the learned
advocate for the petitioners submitted that even
though the petitioners had exercised its right as provided
under Section 25(3) of the Act, the impugned
complaint came to be filed on 27.7.2010 i.e.
after a period of three years from the date on which the
sample was collected. It is submitted that the valuable right
of the petitioners to get the sample reanalyzed, which
is an important inherent right is lost. The learned advocate
for the petitioners submitted that the prosecution has
lodged the complaint after shelf-life of the drug was
over and therefore, the same has prejudiced the
defence. The learned advocate for the petitioners,
relying upon the judgment of the Hon'ble Supreme Court in
the case of State of Haryana Vs. Unique
Farmaid (P) Ltd. & Ors., reported in (1999) 8 SCC 190,
the judgment of the Hon'ble Bombay High
Court in the case of M/s. Zim Laboratories,
Bombay & Ors. Vs. State of Maharashtra,
reported in 1999 Cri.L.J. 2903, the decision of
this Court in the case of Mukesh Laljibhai
Thakkar & Ors. Vs. Food Inspector C/o Food
and Drug Control & Anr., reported in 2013(1)
FAC 434 and unreported judgment of this Court
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(Coram: H.N. Devani, J.) in the case of Pepsico India
Holdings Pvt. Ltd. & Ors. Vs. State of Gujarat & Anr.,
rendered in Special Criminal Application No.539 of
2011, contended that the provisions which are relied upon by
this Court are similar and as held by the Hon'ble Apex
Court in the case of State of Haryana (supra), the
impugned complaint would amount to abuse of process of
law and Court. It is, therefore, submitted that on
this ground alone, the impugned complaint deserves
to be quashed qua the present petitioners.
5. Per contra, Mr.Jayswal, learned Additional Public
Prosecutor has supported the impugned complaint. It is
contended that as such there is no delay and in fact
petitioner No.1 was informed as early as on 22.2.2008 and
even the report was sent to it. The learned APP contended
that the report of the Government analyst was
received within the shelf-life of the drug in
question and only because the petitioners are not
manufacturers, it cannot be said that they are not liable for
the offences alleged. It is contended that on such
a technical ground, this Court may not exercise its inherent
jurisdiction under Section 482 of the Code and the same
should be left for the Trial Court to decide after
appreciating the evidence on record whether the defence of
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the petitioner in any manner affects or not. It is, therefore,
contended that the petition deserves to be dismissed.
6. No other or further submissions are made by the learned
advocates appearing for the parties.
7. Considering the submissions made by the learned
advocates appearing for the parties and on
perusal of the impugned complaint, the following
admitted facts emerge:
[a] The Batch in question i.e. Batch No.B.A.H.G.611 of the
drug Rabitop tablet was manufactured by one BHC
Laboratories Pvt. Ltd. which is original accused
No.17, whereas the present petitioners including
petitioner No.1 were purchasers of the said drug.
[b] The Batch in question was manufactured in the month
of February, 2006 and its validity was upto
January, 2008.
[c] Sample was collected on 23.1.2007.
[d] The sample was sent for its analysis to
the Government Analyst, Food and Drug Laboratory on
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6.2.2007.
[e] The report of the analyst was received on
9.1.2008.
[f] The Drug Inspector, Valsad vide letter dated
22.2.2008 communicated to the petitioners to stop
purchase-sale of the drug in question.
[g] Vide letter dated 7.3.2008, petitioner No.1
intimated to recall the drug in question from the market.
[h] The impugned complaint came to be filed
on 27.7.2010.
8. In view of the aforesaid admitted position,
therefore, petitioner No.1 did raise objection against the
report of the Government Analyst dated 9.1.2008.
However, the complaint has been filed on 27.7.2010. It
is also an admitted position that the shelf-life
of the drug in question was upto January, 2008 and
thus, the complaint is admittedly filed after shelf-
life of the drug in question. Considering the
provisions of Section 25 of the Act, the person affected has
right to get the sample reanalyzed by the Central Drug
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Laboratory. Considering the fact that shelf-life of the drug in
question was only upto January, 2008, the petitioners could
not avail the same and thereby, they lost the opportunity to
get the sample reanalyzed. The Hon'ble Apex Court in
the case of State of Haryana (supra), while
considering Section 24 of the Insecticides Act,
1968, which also prescribes the valuable right of the
accused to have the sample tested from the
Central Drug Laboratory, has observed thus:
"10. It has been submitted before us as well as before the
High Court that the Insecticide Inspector was not competent
to send the sample for retesting to the Central
Insecticides Laboratory and that request for retesting should
have been made to the Court concerned. Then the State has
further submitted that no other defence than
prescribed under Section 30 of the Act could he allowed
to be raised in the prosecution filed under the Act
and further that the shelf life of the sample
was not relevant as the Act does not prescribe any expiry
date. There is no substance in either of these contentions. If
the expiry date is not relevant, there was no reason
why in the form prescribed for submission of
the report by the Insecticide Analyst, the date
of manufacture of the article and the expiry
date are mentioned. We do not find any answer
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to this by the State. In support of this submission, no rule
has been cited and no evidence produced showing that
the expiry date of the insecticide is inconsequential.
Section 30 provides for defences which may or may not be
allowed in prosecution under the Act. Section 30 is as under
:
"30. Defences which may or may not be allowed in
prosecutions under this act.
(1) Save as hereinafter provided in this section, it shall be
no defence in a prosecution under this Act to
prove merely that the accused was ignorant of
the nature or quality of the insecticide in respect
of which the offence was committed or of the
risk involved in the manufacture, sale or use
of such insecticide or of the circumstances of
its manufacture or import.
(2) For the purposes of section 17, an insecticide shall not
be deemed to be misbranded only by reason of the fact that
:
(a) there has been added thereto some innocuous
substance or ingredient because the same is
required for the manufacture or the preparation
of the insecticide as an article of commerce in
a state fit for carriage or consumption, and
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not to increase the bulk, weight or measure
of the insecticide or to conceal its inferior quality or other
defect; or
(b) in the process of manufacture, preparation or
conveyance some extraneous substance has
unavoidably become intermixed with it.
(3) A person not being an importer or a manufacturer of an
insecticide or his agent for the distribution thereof,
shall not be liable for a contravention of any provision
of this Act, if he proves :
(a) that he acquired the insecticide from an
importer or a duly licensed manufacturer,
distributor or dealer thereof;
(b) that he did not know and could not,
with reasonable diligence, have ascertained that the
insecticide in any way contravened any provision of this Act;
and
(c) that the insecticide, while in his possession, was
properly stored and remained in the same state as
when he acquired it."
11. Subsection (1) of Section 30 which appears to
be relevant only prescribes in effect that
ignorance would be of no defence but that does
not mean that if there are contraventions of
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other mandatory provisions of the Act, the accused have no
remedy. Procedure for testing the sample is
prescribed and if it is contravened to the
prejudice of the accused, he certainly has right to seek
dismissal of the complaint. There cannot be two
opinions about that. Then in order to safeguard the right of
the accused to have the sample tested from Central
Insecticides Laboratory, it is incumbent on the
prosecution to file the complaint expeditiously so that
the right of the accused is not lost. In the
present case, by the time the respondents were
asked to appear before the Court, expiry date of
the insecticide was already over and sending of
sample to the Central Insecticides Laboratory at
that late stage would be of no consequence. This issue is
no longer resintegra. In the State of Punjab v.
National Organic Chemical Industries Ltd., JT (1996) 10
SC 480 this Court in somewhat similar circumstances said
that the procedure laid down under Section 24 of the
Act deprived the accused to have sample tested
by the Central Insecticides Laboratory and
adduce evidence of the report so given in his
defence. This Court stressed the need to lodge
the complaint with utmost dispatch so that the accused
may opt to avail the statutory defence. The Court
held that the accused had been deprived of a
valuable right statutorily available to him. On this
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view of the matter, the court did not allow
the criminal complaint to proceed against the
accused. We have cases under the Drugs and Cosmetics
Act, 1940 and the Prevention of Food
Adulteration Act, 1954 involving the same
question. In this connection reference be made
to decisions of this Court in State of Haryana
v. Brij Lal Mittal & Ors., [1998] 5 SCC
343 under the Drugs and Cosmetics Act, 1940;
Municipal Corporation of Delhi v. Ghisa Ram, AIR (1967)
SC 970; Chetumal v. State of Madhya Pradesh &
Anr., [1981] 3 SCC 72 and Calcutta Municipal
Corporation v. Pawan Kumar Saraf & Anr., [1999] 2 SCC
400 all under the Prevention of Food
Adulteration Act, 1954.
12. It cannot be gainsaid, therefore, that the
respondents in these appeals have been deprived
of their valuable right to have the sample
tested from the Central Insecticides Laboratory
under sub section (4) of Section 24 of the Act. Under
subsection (3) of Section 24 report signed by
the Insecticide analyst shall be evidence of the
facts stated therein and shall be conclusive evidence
against the accused only if the accused do not,
within 28 days of the receipt of the report,
notify in writing to the Insecticides Inspector or
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the Court before which proceedings are pending
that they intend to adduce evidence to controvert the
report. In the present cases Insecticide Inspector
was notified that the accused intended to adduce
evidence to controvert the report. By the time the
matter reached the court, shelf life of the sample had
already expired and no purpose would have been
served informing the court of such an intention. The
report of the Insecticide Analyst was, therefore, not
conclusive. A valuable right had been conferred
on the accused to have the sample tested
from the Central Insecticides Laboratory and in
the circumstances of the case accused have been deprived
of that right, thus, prejudicing them in their defence."
9. In the instant case, in view of the fact that the
complaint was filed after shelf-life of the sample of the drug,
the petitioners - accused have been deprived of their valuable
statutory right of getting the sample reanalyzed from the
Central Drug Laboratory.
10. At this juncture, it would be advantageous to refer to
the judgment rendered in the case of M/s. Zim Laboratories,
Bombay (supra), wherein Hon'ble Bombay High Court
observed thus:
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"18. In the present case, the petitioneraccused in
view of the provisions of subsection (3) of
days from the date of receipt of the report his
intention to adduce evidence in controversion of the
said report of the Government Analyst. However,
because of the failure on the part of the complainant to
take prompt appropriate steps in this regard,
the petitioner was deprived of his valuable
statutory right which has affected the prosecution
adversely.
19. In the instant case, the Drug Inspector in
spite of the receipt of the intimation from the
petitionerCompany on 18.6.1994, did not do
anything at all and allow the time to lapse which
ultimately resulted in denial of opportunity to
the petitioners for getting the part of the sample
of the drug reanalysed from the Central Drugs
Laboratory, Calcutta which in fact, has further
resulted in depriving the petitioners from exercising
their valuable statutory right which, in my opinion, goes
to the root of the matter and adversely affects
the prosecution. It is no doubt true that the
report of the Government Analyst continues to be the
evidence in a case of the facts contained therein.
However, right of the accused to get the sample
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analysed from the Central Drugs Laboratory, Calcutta
is a valuable right since the certificate of Central Drugs
Laboratory supersedes the report of the Government
Analyst and is treated as conclusive evidence of
its contents. In that view of the matter, in my opinion,
the impugned order is not just and proper
and the same is devoid of substance and
misconceived."
11. Similar view is also taken by this Court in the case
of Mukesh Laljibhai Thakkar (supra) and Pepsico
India Holdings Pvt. Ltd. (supra) which are relied upon by
the learned advocate for the petitioners.
12. In view of the aforesaid discussion and taking into
consideration the ratio laid down in the aforesaid judgments,
the petitioners were deprived of their valuable right of
getting the sample reanalyzed by the Central Drug
Laboratory. As the complaint came to be lodged after shelf-
life of the sample, which as per the admitted factual
position, was to expire in January, 2008, any further
continuance of the criminal proceedings against the
petitioners would amount to abuse of process of
law and Court. Accordingly, this Court is of the
opinion that this is a fit case for exercise of inherent powers
under Section 482 of the Code to prevent the same and to
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secure the ends of justice.
13. Accordingly, these petitions succeed and are
hereby allowed. The impugned complaint filed by
respondent No.2 against the petitioners being Criminal
Case No.3615 of 2010 pending in the Court of learned Chief
Judicial Magistrate First Class, Navsari for the offence
punishable under Sections 18(a)(i) and 27(c) of the Drugs
and Cosmetics Act, 1940 and the further
consequential proceedings arising out of the aforesaid
complaint is hereby quashed and set aside qua the
present petitioners only. The Trial Court may proceed
further in accordance with law qua the other accused and
any observations made in this judgment would
apply only to the present petitioners. Rule is made absolute
with no order as to costs.
(SANDEEP N. BHATT,J)
SRILATHA
