M.Y.AHMED Vs. DRUGS INSPECTOR

JUDGEMENT

(1.) This Criminal Original Petition has been filed praying to quash the proceedings in C.C.No.3697 of 2011, on the file of the Learned X Metropolitan Magistrate, Egmore, Chennai.

(2.) The case, in brief, would run thus; (i) The petitioner is the proprietor of M/s. Amanath Pharmaceuticals, Pondicherry, having manufacturing Unit at R.S.No.36/5, Pathukannu, Koodapakkam Village, Pondicherry. The petitioner has a valid licence to manufacture drugs including Bismuth Trioxide, commonly known as CBS- 120 Tablets, upto 18.11.2014. A complaint, dated 02.03.2010 was received by the Deputy Drugs Controller (India), alleging that the second accused and another one had been involving illegal drugs manufacturing and fake drugs. Based on the complaint, the respondent inspected the premises mentioned in the complaint, on 14.05.2010 and found the second accused was marketing the products of M/s.Amanath Pharmaceuticals, Pondicherry. In order to confirm the quality of the subject drug, four portions of each containing 10 x 10 Tablets of CBS-120 Tablet, Batch No.CS-101, D/M 01/2010, E/D 12/2011 manufactured by M/s.Amanath Pharmaceuticals, was drawn under Form 17, dated 14.05.2010, for analysis by following the procedures laid down under Section 23 of Drugs & Cosmetics Act , 1940, (in short, 'the Act') and sent to the Government Analyst, Central Drugs Laboratory, Kolkata, for analysis vide Form 18, dated 17.05.2018, Accordingly, a report dated 02.09.2010 received, declaring that the sample are not of standard quality. Therefore, a letter dated 29.10.2010 was sent to the first accused directing to stop further sale of the subject drug and to inform the quantity manufactured and sold and also to explain why they should not be proceeded for manufacturing a 'not of standard quality' drug CBS-120. In reply, the petitioner stated that they have an independent analyst report, which is in their favour. The explanation offered by the petitioner was rejected by the respondent and preferred the complaint against the petitioner herein in C.C.No.3697 of 2011, on the file of the learned X Metropolitan Magistrate, Egmore, Chennai.

(3.) The learned counsel appearing for the petitioner would submit that the Government Analyst, Central Drugs Laboratory, Kolkata, has not conducted the analysis in a proper way and further the petitioner enclosed the analysis report of the Government approved Laboratory, which confirms that the sample is of standard quality. As on the date of drawing samples, as per Section 21 of the said Act, the complainant was not a Gazetted Officer, authorized by the Act, to conduct search and seizure. Further, no inspection was conducted in the manufacturing premises, and the petitioner is only a Distributor, where inspection was conducted. The learned counsel, in support of his contentions, has relied on the decision of the Hon'ble Apex Court in State of Maharashtra Vs. R.A.Chandawarkar and Others reported in [1999 (2) Mh.L.J.650 ]; in Zim Laboratories Ltd., Vs. State of Maharastra (CD 1999 BHC573; in Unicon Vs. Drug Inspector reported in (2010 SCC Online Mad 5946) and in (M/s.Alpha Laboratories Vs. State of Rajastan) reported in (2014 SCC online RA 6062).