BIOCHEM PHARMACEUTICAL Vs. STATE

JUDGEMENT

(1.) Petitioner No. 1 is a partnership firm. Petitioners 2 to 4 are partners of petitioner No. 1 and petitioner No. 5 is an employee of petitioner No. 1. Petitioner No. 1 is accused No. 1 in complaint case No. 01/04 of 1998 for offence Section 18(a)(i) punishable under Section 27(d) of The Drugs and Cosmetics Act, 1940 (in short the 'Act'). The petitioners are in the business of manufacturing drugs.

(2.) On 25.2.1997, a sample of drug known as Ampilox Dry Syrup, Batch No. AS-74896, with manufacturing date December, 1996 and expiry date May, 1998 was collected by the Drug Inspector from premises of M/s.Galaxy Medicos, A-2, DDA Market, Mata Sundri Road, New Delhi, in the presence of the proprietor of the firm. Intimation in form 17 about the collection of the samples and one sealed sample of the drug was handed over to the proprietor. On 25.2.97 one sealed sample portion of the drug was forwarded to the Government Analyst, Delhi. On analysis the sample of the drug was found to be not of standard quality. On 13.11.1997, a certificate of test of analysis on Form 13 in triplicate was received in the office of Drug Inspectors, who is the complainant. On 13.11.1997, the complainant forwarded the copy of the test report to M/s.Galaxy Medicos and sought disclosure of the name, address and other particulars of the person from whom the drug had been acquired by the firm. M/s.Galaxy Medicos disclosed that it had purchased the drug from M/s.Hindustan Pharmaceuticals, Ansari Road, Darya Ganj, New Delhi against an invoice dated 6.2.1997. The manufacturer of the drug, who are the petitioners before this court was asked to stop further sale of the drug and to recall the supplies already made. The manufacturing firm in its reply dated 18.12.1997 (within 28 days of receipt of the copy of the report) stated that it did not accept the Government Analyst's report and intended to adduce evidence in controversion of the test report as provided for under Section 25 of the Act and requested that sealed sample portion of the drug be sent to them. On 16.1.1998, the third sealed sample of the drug along with copy of the test report in original was forwarded to M/s.Hindustan Pharmaceticals, New Delhi who in turn confirmed to have purchased the drug from the petitioner and to have sold the drug to M/s.Galaxy Medicos. The complainant vide its letter dated 22.1.1998 informed manufacturing firm that as per the requirement of Section 23(4) of the Act, the third sample portion of the drug had been sent to the person whose name was disclosed by M/s.Galaxy Medicos. The complainant allege that the manufacturing firm/petitioner was advised to submit the copies of evidence which they wanted to adduce in controversion of the Government Analyst's report. The complaint was lodged with the allegation that the petitioner failed to adduce any evidence in this regard. Accordingly the complaint was filed on 1.4.1998 under the provisions of Section 18a (i) of the Act.

(3.) The Magistrate summoned the petitioners who moved an application for withdrawing the orders of summoning which was dismissed by the Magistrate. This order was challenged in a revision petition which was also dismissed by the court of Additional Sessions Judge on 20.8.2001. This has led to the filing of the present petition praying for setting aside the order dated 20.8.2001 and for dismissal of the complaint.