Telangana High Court

M/S.Pro Laboratories Pvt.Ltd., 2 ... vs State Of A.P., Through Asst. ... on 15 December, 2021

Bench: G.Radha Rani

        THE HON'BLE Dr. JUSTICE G. RADHA RANI

             CRIMINAL PETITION No.7582 of 2013
ORDER:

This petition is filed by the petitioners-A1 to A3 under Section

482 Cr.P.C. to quash the proceedings against them in CC No.322 of

2011 on the file of the Judicial Magistrate of First Class,

Mahabubnagar.

2. The case of the petitioners in brief was that on the complaint

filed by the Assistant Director, Incharge Drug Inspector of

Mahabubnagar District, the Judicial Magistrate of First Class,

Mahabubnagar, took cognizance of the case under Section 18(a)(i)

read with Schedule-II of Section 16, punishable under Section 27(d)

of the Drugs and Cosmetics Act, 1940 (for short 'the Act'). A1 was

the company, authorized manufacturer of the drug Atonec plus tablet,

situated at Uttarakhand. A2 was the responsible person whereas A3

was a technical person of A1 firm. On 29.05.2009, the Assistant

Director, Incharge Drug Inspector inspected M/s.Surya Medical and

General Stores, Mahabubnagar and picked up a sample of Atonec plus

tablet in the presence of the proprietor of M/s.Surya Medical and

General Stores for test/analysis and sent the same to the Government

Analyst, DCL, Hyderabad by following the procedure laid down

under Section 23 of the Act. The manufacturing date of the said drug

was July 2008 and the expiry date was June, 2010. The Government

Analyst issued a report on 24.06.2010 declaring the sample as 'not of

standard quality' for the reasons that the sample did not comply to the Dr.GRR,J

test for disintegration. On 25.06.2010, the Drug Inspector received a

reply from LW.2 stating that the subject sample was purchased from

M/s.Meghana Medical and Surgical Agencies, Panchowrasta,

Mahabubnagar and enclosed a copy of the invoice. The Drug

Inspector handed over a sealed sample portion of the drug along with

Form-13 to the partner of M/s.Meghana Medical and Surgical

Agencies, Mahabubnagar and requested LW.3 to disclose the source

of supply of the subject batch drug. He received a reply from LW.3

stating that the subject batch drug was purchased from M/s.Gowri

Enterprises, Vijayawada and enclosed the copy of the purchase

invoice. On 30.06.2010, L.W.1 addressed a letter to M/s.Gowri

Enterprises, Vijayawada requesting to disclose the source of supply

and received a reply that the subject drug was purchased from

M/s.Nector Life Sciences Ltd., Mohali along with a copy of purchase

invoice. On 14.07.2010, the Drugs Inspector addressed a letter to the

Managing Director of M/s.Nector Life Sciences, Mohali. He received

a reply from the Senior Manager of M/s.Nector Life Sciences stating

that the subject sample was purchased from M/s.Pro Laboratories Pvt.

Ltd., Roorkie i.e. A1 firm and enclosed a copy of the purchase

invoice. On 09.08.2010 the Drug Inspector addressed a notice under

Section 18B, 22(i) (cca) of the Act to the Managing Director of

M/s.Pro Laboratories Pvt. Ltd, Roorkee, requesting them to confirm

the manufacture and sale of the subject drug. On 31.08.2010, he

received a reply from the Technical Director of A1 firm confirming

the manufacture and sale of the subject sample drug. On 04.02.2011, Dr.GRR,J

the Drug Inspector filed a complaint against A1 to A3 before the

Judicial Magistrate of First Class, Mahabubnagar and the same was

numbered as CC No.322 of 2011.

3. Heard the learned counsel for the petitioners and the learned

Public Prosecutor.

4. Learned counsel for the petitioners submitted that the sample

was lifted on 29.05.2009 and the Analyst's report was dated

24.06.2010 i.e. more than one year after the seizure of the drug.

The expiry date of the sample was June, 2010. The complaint was

filed on 04.02.2011 as such, they lost a valuable right of sending of

the second sample to the Central Laboratory under Section 25(3) of

the Act. The petition was liable to be allowed on this ground alone

and prayed to quash the proceedings. He relied on the judgments of

the High Court of Andhra Pradesh in M.V. Srinivasa Rao v. State of

A.P. and others1 and Seelam Koti Reddy v. State of A.P.2

5. Learned Public Prosecutor admitted that there was a delay in

filing the charge sheet and that the shelf life of the drug was expired in

June 2010 itself.

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

the respondent-complainant, it was disclosed that the sample was

obtained by the Drug Inspector on 29.05.2009 and the date of

manufacture of the drug was July, 2008 and the date of expiry was

June, 2010. The Government Analyst gave his report on 24.06.2010

MANU/AP/0111/200196

2012 SCC Online AP 161 Dr.GRR,J

i.e. only a few days before the expiry of the shelf life of the drug. The

petitioners - accused were intimated about the report of the Analyst

on 09.08.2010, after expiry of the shelf life of the drug. As such, the

question of exercising option or notifying their intention under

Section 25 (3) of the Act did not arise as the accused had lost their

opportunity of sending the second sample to the Central Drug

Laboratory, Kolkata, under Section 25 (3) of the Act.

7. In the judgment relied upon by the learned counsel for the

petitioners in M.V. Srinivasa Rao case (1 supra), it was held that:

"18.It is significant to note that, in the instant case, even though the date of manufacture of the drug is October, 2007 and the expiry date of the said drug is September, 2009, the State Analyst report was furnished to the accused on 26.10.2010 i.e. long after the date of expiry of the drug. Almost one year after the date of expiry of the drug, the report was furnished to the accused. So, even if the accused exercises his right conferred on him under Section 25(3) of the Act, to request the Court to send the drug for test or analysis by the Central Drug Laboratory, no useful purpose would be served as the drug already expired by then. So, the accused has no opportunity to test the correctness or genuineness of the report of the State Analyst. 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."

8. In Seelam Koti Reddy case (2 supra), it was 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.

The Court below failed to appreciate the matter properly."

Dr.GRR,J

9. The Hon'ble Apex Court in Medicamen Biotech Ltd. v.

Rubina Bose, Drug Inspector3, held 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."

10.. The Hon'ble Apex Court in Medipol Pharmaceutical

India Pvt. Ltd. v. Post Graduate Institute of Medical Education &

Research and another4 held that:

"14. 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 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.

11. Considering the above judgments of the Hon'ble Apex Court

and of the High Court of Andhra Pradesh, which would clearly

applicable to the facts of the present case, and the delay is not

2008(7) SCC 196

2020 SCC Online SC 638 Dr.GRR,J

attributable to the petitioners-accused and as the valuable right

accrued to the petitioner for re-analysis vested under the Act is

violated, the continuation of the proceedings against the petitioners -

accused is considered as an abuse of process of law and hence, the

proceedings are liable to be quashed.

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

proceedings against the petitioners - accused in CC No.322 of 2011