Telangana High Court

M/S. Pharma Deep Remedies A1 Hyd 6 ... vs State Of Ap., Rep. Pp. Hyd., on 10 December, 2021

Bench: G.Radha Rani

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

              CRIMINAL PETITION No.4410 of 2014
ORDER:

This petition is filed by the petitioners - A1 to A7 under

Section 482 Cr.P.C. to quash the proceedings against them in

C.C.No.512 of 2013 on the file of Judicial First Class Magistrate,

Narsampet, Warangal District.

2. The case of the prosecution in brief was that on

03.10.2012, the Drug Inspector, Narsampet visited M/s Sri Sri

Rajeshwara Medical and General Stores, Narsampet, Warangal and

lifted four samples of 'PANTIZ-D' and sent one of the samples to

the Government Drug Control Laboratory, Hyderabad on the same

day. The Government analyst, Drug Control Laboratory,

Hyderabad filed his report, dated 09.01.2013 and opined that the

sample did not comply with the description and disintegration

according to IP specifications with respect of label claim. As such

it was 'not of standard quality' as per law. On receiving the report,

the Drug Inspector deposited the 2nd sealed portion of the drug

sample before the Judicial First Class Magistrate Court,

Narsampet and issued a notice to M/s Sri Sri Rajeshwara Medical

and General Stores on 04.02.2013 requesting them to disclose the

name and address of the person from whom they acquired the said

illegal drug. The copy of the analytical report was served on them

under Section 25(2) of the Drugs and Cosmetics Act, 1940 (for

short 'D&C Act') giving 10 days time for reply i.e. on or before

14.02.2013. When A.5 and A.6, partner and in-charge of M/s Sri

Sri Rajeshwara Medical and General Stores failed to reply to the

legal notice, the Drug Inspector issued another legal notice dated Dr.GRR,J

18.02.2013 to A1 firm requesting to confirm the manufacturer

particulars of the said drug and asked them to give reply within 30

days. Meanwhile, A.5 and A.6 gave a reply on 20.02.2013

disclosing the source of supply that they purchased the said drug

from M/s Rajesh Pharma/A.7. Basing on the reply of A.5 and A.6,

the Drug Inspector issued another legal notice dated 20.02.2013

enclosing the copy of the Government Analyst report in Form 13.

A.7 submitted his reply on the same day stating that he purchased

the said drug from the manufacturer i.e. A.1 company. A.1

company sent a reply to the notice dated 06.03.2013 stating that

they were not accepting the Government Analyst report. Another

notice dated 19.03.2013 was given by the Drug Inspector to A.1

stating that the second sealed portion of the drug sample was

deposited before the Judicial Magistrate of First Class, Narsampet,

Warangal. Finally, the Drug Inspector filed a complaint before the

Judicial Magistrate of First Class, Narsampet, Warangal on

08.04.013 and cognizance of offence was taken by the learned

Magistrate on 09.07.2013.

3. Heard the learned counsel for the petitioners and the

learned Public Prosecutor.

4. The learned counsel for the petitioners submitted that A2

to A.4 were Chemists in the company and it was not stated in the

complaint that they were responsible for the day to day affairs of

the company as per the mandatory requirement under Section 34

of D&C Act. A.5 and A.6 were only stock holders of A.1 company

and they were not responsible to attract the offence under Section

27 read with 18(b) of D&C Act. The learned counsel for the

petitioners submitted that as admitted by the Drug Inspector in Dr.GRR,J

Form 18, the expiry date of the lifted sample was January, 2013.

The sample was lifted on 03.10.2012 and the Analyst report was

dated 09.01.2013, the notice was given to A.1 company on

18.02.2013 by which time itself the shelf life of the drug was

expired and the petitioners lost valuable right for sending the

second sample to the Central Laboratory. As per Section 25, sub-

clause (2) of the D&C Act, 1940 the accused should have

challenged the report furnished to him by the complainant within

28 days after receiving copy of the report. As per the record

available, the accused received the report only after expiry of the

shelf life of the said drug and relied on the judgments of High

Court of A.P. in M.V.Srinivas Rao v State of A.P. and others1,

Seelam Koti Reddy v State of A.P. and another2, and the

citations of the Hon'ble Apex Court in Medicamen Biotech

Limited and another v Rubina Bose, Drug Inspector3 and

Medipol Pharmaceutical India Pvt. Ltd v Post Graduate

Institute of Medical Education and Research and another4.

5. The learned Public Prosecutor reported to decide the

petition on merits.

6. Perused the record. On a perusal of the complaint filed by

the Drug Inspector, it would disclose that the complainant/Drug

Inspector collected the sample of the drug by name 'PANTIZ-D'

from M/s Sri Sri Rajeshwara Medical and General Stores,

Narsampet, Warangal on 03.10.2012. The expiry date of the said

drug as per Form 18 was by January, 2013. He sent the said drug

to the Government Analyst for report, vide Form 18 on the same

Manu/AP/0111/2019

2012 SCC online AP 161 : 2013 Crl.LJ 1058

(2008) 7 SCC 196

2020 SCC online SC 638 Dr.GRR,J

day i.e. on 03.10.2012. The Government Analyst gave his report

on 09.01.2013 opining that the drug was 'not of standard quality'.

The Drug Inspector issued notice to A.1 firm on 18.02.2013. A.1

replied on 23.03.2013 that they were not accepting the report of

the Analyst and requested to send the same to the Government

Laboratory, Kolkata. By the date of sending the notice to A.1 firm,

on 18.02.2013 itself by the Drug Inspector, the shelf life of the

drug had expired. As per Section 25(3) of D&C Act, 1940 the

accused had a right to challenge the report furnished to him by the

complainant within 28 days after receiving copy of the report. As

A.1 firm received the report only after expiry of the shelf life of the

drug, they lost valuable right of sending the second sample to the

Central Laboratory, Kolkata.

7. The Hon'ble Apex Court in Medicamen Biotech Ltd. (3

supra) after extracting Section 25 of D&C Act, 1940 held that:

"13. A reading of the aforesaid provisions would reveal that they lay certain obligations as well as provide safeguards for a person from whom a drug has been seized for analysis or testing as Section 25(3) specifies that unless such a person controverts the correctness of the report submitted by the Government Analyst within 28 days in writing that he intends to adduce evidence to controvert the report of the Analyst, it would be deemed to be conclusive evidence of the quality of the drug whereas sub-section (4) of section 25 obliges the Magistrate on the request of the complainant or the accused or on in his own motion to send the fourth sample which has been disputed for fresh testing to the Director of the Central Drugs Laboratory.

It is further held that:

"16. It is, therefore, evident that the appellant had not once but on at least two occasions and within 28 days of the receipt of the show cause notice clarified that it intended to adduce evidence to show that the test report of the Government Analyst was not correct. "

and finally held that:

Dr.GRR,J

"19. In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred as the appellant had avoided service of summons on it till 9th May 2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed. Likewise, we observe that the requests for retesting of the drug had been made by the appellant in August/September 2001 as would be clear from the facts already given above and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting well within time. We are, therefore, of the opinion that the facts of the case suggest that the appellants have been deprived of a valuable right under Section 25(3) and 25(4) of the Act which must necessitate the quashing of the proceedings against them."

8. The Hon'ble Apex Court in Medipol Pharmaceutical

India Pvt. Ltd (4th supra) at para 14 held that:

"Though the aforesaid judgments pertain to criminal prosecutions under the Drugs and Cosmetics Act, Prevention of Food Adulteration Act and Insecticides Act, yet, they lay down that a valuable right is granted to a person who is sought to be penalized under these Acts to have a sample tested by the Government Analyst that is found against such person, to be tested by a superior or appellate authority, namely, the Central Drugs Laboratory. These judgments lay down that if owing to delay which is predominantly attributable to the State or any of its entities, owing to which an article which deteriorates with time is tested as not containing the requisite standard, any prosecution or penalty inflictable by virtue of such sample being tested, cannot then be sustained. We have seen that on the facts of this case, the sample drawn and analyzed by the Government Analyst was delayed for a considerable period resulting in the sample being drawn towards the end of its shelf life. Even insofar as the samples sent to the Central Drugs Laboratory, there was a considerable delay which resulted in the Dr.GRR,J

sample being sent and tested 8 months beyond the shelf life of the product in this case. It is thus clear that the valuable right granted by Section 25 of the Drugs and Cosmetics Act kicks in on the facts of this case, which would necessarily render any penalty based upon the said analysis of the sample as void."

9. Similarly, the High Court of A.P. in M.V.Srinivas Rao (1st

supra) held that:

"18. It is well settled law that the right conferred on the accused to have the drug tested by the Central Drug Laboratory is a valuable right conferred on him and if such a valuable right is defeated for any reason, the proceedings initiated against the accused on the basis of the said State Analyst report, which is not tested as per choice of the accused by the Central Drug Laboratory, stands vitiated.

Section 25(3) is clear enough to say that a valuable right is conferred on the accused to controvert the correctness or genuineness of the report submitted by the Government Analyst by notifying to Drug Inspector or the Court within 28 days in writing that he intends to adduce evidence to controvert the said report of the Government Analyst.

10. Similarly, High Court of A.P. in Seelam Koti Reddy (2nd

supra) held that:

"12. This decision holds good here. It is not in dispute that the expiry date of the sample was 29-10-2009. Therefore, in any case, because of the expiry of the life period of the product or because of the failure of the complainant to take measures, the valuable right of the accused to prove his innocence was lost. Hence, in these circumstances, the impugned proceedings against the accused are untenable."

11. Considering the above citations, as the petitioners lost

valuable right to send second sample to the Central Laboratory in

time and the said delay was not attributable to the petitioners, the

consequences thereof cannot work adversely to the interest of the

petitioners. As the valuable right of the petitioners vested under Dr.GRR,J

the Act, appears to have been violated, the continuation of the

prosecution is considered as an abuse of process of law and hence,

the petition is liable to be quashed.

12. In the result, the Criminal Petition is allowed, quashing

the proceedings in C.C.No.512 of 2013 on the file of Judicial First

Class Magistrate, Narsampet, Warangal District, against the

petitioners/A.1 to A.7.