Karnataka High Court

M/S Cosmas Pharmacals Ltd vs State Of Karnataka on 19 December, 2023

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

                                                                -1-
                                                                      NC: 2023:KHC-D:14883
                                                                       CRL.P No. 100661 of 2023




                                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                           DATED THIS THE 19TH DAY OF DECEMBER, 2023

                                                              BEFORE

                                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

                                             CRIMINAL PETITION NO. 100661 OF 2023

                                 BETWEEN:

                                 1.     M/S COSMAS PHARMACALS LTD.,
                                        BURANAWALA ROAD, VILLAGE-KOTLA,
                                        P.O. BAROTIWALA, SOLAN (H.P)-174103,
                                        R/BY SRI PUNIT JAIN, MANAGING DIRECTOR.

                                 2.     PUNIT JAIN S/O PAWAN KUMAR JAIN,
                                        MANAGING DIRECTOR,
                                        M/S. COSMAS PHARMACALS LTD.,
                                        BURANWALA ROAD, VILLAGE KOTLA
                                        P.O. BAROTIWALE, SOLAN H.P.174103.

                                 3.     SRI. SANJAY JAIN,
                                        DIRECTOR OF COSMAS PHARMACALS LTD.,
                                        BURANWALA ROAD, VILLAGE KOTLA
                                        P.O. BAROTIWALE, SOLAN H.P.174103.
                                                                                  ... PETITIONERS
                                 (BY SRI. DESU REDDY G., ADVOCATE)

              Digitally signed
              by
                                 AND:
VIJAYALAKSHMI VIJAYALAKSHMI
M KANKUPPI    M KANKUPPI
              Date: 2023.12.21
              16:21:47 +0530



                                 STATE OF KARNATAKA,
                                 BY ASSISTANT DRUGS CONTROLLER-2.,
                                 DHARWAD CIRCLE,
                                 DRUGS CONTROL DEPARTMENT,
                                 HUBLI, NOW R/BY
                                 STATE PUBLIC PROSECUTOR,
                                 HIGH COURT OF KARNATAKA,
                                 DHARWAD BENCH, AT. DHARWAD.
                                                                               ... RESPONDENT
                                 (BY SRI. P.N. HATTI, HCGP FOR RESPONDENT/STATE)

                                      THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C.
                                 SEEKING TO CALL FOR HE ENTIRE RECORDS IN C.C.NO. 887/2018
                                 THE FILE OF THE II JMFC, HUBLI AND FURTHER BE QUASH THE
                              -2-
                                   NC: 2023:KHC-D:14883
                                    CRL.P No. 100661 of 2023




ENTIRE PROCEEDINGS IN CC NO.887/2018 ON THE FILE OF THE II
JMFC HUBBALLI FILED AGAINST THE PETITIONERS/A1 TO A3 FOR
THE ALLEGED VIOLATION OF SECTION 18(a) (i) AND P/U/SEC. 27
(d) OF DRUGS AND COSMETIC ACT 1940 AND RULES THEREUNDER.

    THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:

                            ORDER

This petition is filed praying to quash the entire

proceedings in C.C.No.887/2018 pending on the file of the

II JMFC, Hubbali registered for violation of Section 18(a)(i)

and punishable under Section 27(d) of the Drugs And

Cosmetic Act, 1940 (hereinafter referred to as 'D & C

Act', for brevity).

2. Heard learned counsel for petitioners and

learned High Court Government Pleader for the

respondent-State.

3. Petitioner No.1/accused No.1 is the

Company, Petitioner No.2/accused No.2 is the

Managing Director and petitioner No.3/accused

No.3 is the Director of petitioner No.1/Company.

Petitioner No.2/accused No.2 is the Managing

Director who is responsible for day to day

NC: 2023:KHC-D:14883

activities of the said Company. Petitioner

No.3/accused No.3 is the Director and person

responsible for day to day activities of the said

Company.

4. That on 12.02.2015 CW-1 as per the

Section 23 of the D & C Act has drawn a legal

sample of the drug NITIZEST-F, Batch No.CL 4448,

date of manufacture is 08/2014 and date of expiry

is 07/2016 manufactured by the Accused

No.1/Company under Form No.17 dated

12.02.2015 from M/s Betacon Medicals, Hubbali

along with other drugs. The drawn samples were

divided into four portions, one portion was handed

over to CW-4 and one portion was sent for test and

analysis to the Government Analyst under From

No.18 dated 12.02.2015. That on 31.07.2015,

CW-1 received test report in Form No.13 dated

29.07.2015 along with covering letter from the

Government Analyst, Karnataka declaring that said

NC: 2023:KHC-D:14883

drug as not of standard quality with respect to the

contents of Folic acid. After completing

investigation and got permission from the Drugs

Controller, Bengaluru, the complainant filed a

complaint against petitioner Nos. 1 to 3(accused

Nos. 1 to 3) for violation 18(a)(i) and punishable

under Section 27(d) of the D &C Act. On receipt of the said

complaint case came to be registered in C.C.No.887/2018

against petitioners. The petitioners being aggrieved by the

order of Trial Court in C.C.No.887/2018 have filed this

petition seeking quashing of proceedings in the said

criminal case.

5. Learned counsel for petitioners placed reliance

on the decision of the Co-Ordinate Bench of this Court

rendered in Criminal Petition No.7059/2010 decided on

17.08.2010 and Criminal Petition No.101916/2021 decided

on 29.03.2022 has contended that the petitioners/accused

persons were not being given a right to cause the sample

of the drug in question for further test or analysis and as

NC: 2023:KHC-D:14883

on the date of filling complaint the samples seized in

question has expired 02 years prior to the filling of the

complaint. Therefore, there is no occasion for the accused

to send the subject drug for re-test as specified under sub-

Section (4) of Section 25 of the D & C Act. Therefore,

accused have lost their right to cause the sample drug in

question for further analysis or test by making an

application. With this, he prayed to allow the petition.

6. Having heard learned counsels for parties,

this Court perused the records and judgments

relied upon by the learned counsel for petitioners.

7. The Co-Ordinate Bench of this Court in

Criminal Petition No.7059/2010 has observed as

under

"13. Sub-section (4) of Section 25 of the D & C Act, which provides for sending of the samples of the drug in question to the Government Analyst for further test or analysis at the instance of the accused in a prosecution launched against him under the D & C Act, reads as under:

"25. Reports of Government Analysts.-(1)

NC: 2023:KHC-D:14883

xxxxxxx (2) x x x x x x x (3) x x x x x x x x x (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 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 the authority of the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein."

14. From the plain reading of the above provisions of sub-section (4) of Section 25 of the D & C Act, it is clear that in a prosecution launched against him for the offence under D & C Act in respect of sub-standard quality of drug, the accused is given a right to cause the sample of the drug in question subjected to further test or analysis. If that right is to be exercised, as on the date of exercise of the said right, the life of the drug in question should not have expired. If the life of the drug expires at the stage of filing the complaint, the valuable right of the accused to have the sample of the drug subjected to further test/analysis would be denied.

NC: 2023:KHC-D:14883

15. It is not in dispute that as on the date of filing of the complaint by the complainant, the life of the drug in question had already expired, inasmuch as, while the date of expiry was February, 2006, the complaint was filed on 21.08.2007. Therefore, the accused last his right to cause the sample of said drug subjected to further analysis or test by the Government Analyst by making an application to that effect to the Court. In this view of the matter, as rightly submitted by the learned counsel for the petitioners-accused, the complaint, which has been filed after expiry of life of the drug in question, cannot be entertained. Therefore, on this ground also all further proceedings in the said case are liable to be quashed."

8. The Co-Ordinate Bench of this Court in

Criminal Petition No.101916/2021 has observed as

under

"Section 25(4) of the Act specifies that the accused is given a right to cause the sample of the drugs in question for further test of analysis. The accused having not been provided with a right to cause the sample drug in question for retest, have been deprived of the said right since the potentiality of the said drug in question expired long back in the month of September 2014 and there is no occasion fo the accused to send the subject drug for retest as specified under Section 25(4) of the Act. Therefore, the accused have lost their right to cause the sample drug in question for further test or analysis by making an application. In view of the same, the petitioners

NC: 2023:KHC-D:14883

having been deprived of the right to send the subject drug for retest, taking of the cognizance by the learned Magistrate for the aforesaid offences is not sustainable in law."

9. In the case on hand the sample seized

drug date of expiry is 07/16. Even in Form-13 and

para No.7 of the complaint date of expiry of

sample drug is mentioned as 07/16. The complaint

has been filed on 28.07.2018. Form No.13 which

is certificate of test or analysis of analyst under

Section 25(1) of the D & C Act has been received

by the complainant on 31.07.2015. Even, inspite

of receiving said Form No.13 dated 29.07.2015 on

31.07.2015 complaint has been filed after 03

years. Therefore, it is not in dispute that as on

the date of filling of the complaint by the