A V MODY Vs. S R SALUNKE

JUDGEMENT

(1.) PETITIONERS who are the Directors of M/s. Uni-Sankyo Ltd. , a registered company have filed this petition for quashing the complaint in Criminal Case No. 47 of 1992 filed by the respondent State in the Court of JMFC, Khed, Dist. Ratnagiri and the process issued therein under the provisions of the Drugs and Cosmetics Act, 1940.

(2.) THE registered company by name Uni-Sankyo Ltd. was engaged in the business of manufacture and sale of pharmaceutical products. On 16th March, 1991 the Drug Inspector B. R. Masal visited the premises of M/s Tirupati Medical Stores and had drawn the sample of Sporlac Tablets S. No. L. P. 011016 mfg. date June 90 expiry date May 92 manufactured by M/s Uni-Sankyo Ltd. The said company is having its address at Plot No. B 4, M. I. D. C. , Lote Parshuram, Tal. Khed, Dist. Ratnagiri which is original accused No. 8. The said sample was drawn for test and analysis as per the procedure laid down in section 28 of the Act and issued intimation in form No. 17. One part of the sealed sample was given to the firm M/s. Tirupati Medical Stores against the Credit Memo and the price was subsequently paid on 26th March, 1991 against receipt No. 2426. On 18th March, 1991 the part of the sealed sample was sent along with the specimen seal to the Government analyst, Drug Control Laboratory, Maharashtra State, Bandra (East), Bombay 400051. The Government analyst gave his report bearing No. M-1826/91 dated 22nd July, 1991 in Form No. 13 reporting that the drug in question was not of standard quality as defined in the Act and rules thereunder. As per the report the content of Lactobacillus Sporogen in the sample was less than the labelled amount (35%) as each tablet contained 21 million organisions of Lactobacillus spares which is 35% of the labelled amount. The copy of the said report was sent to the Medical Store on 9-8-1991 asking them to disclose the name of the firm from whom they bought the drugs in question. The medical store revealed that they had purchased the drug in question from M/s Padmashree Medical Distributors, Pune. Thereafter the copy of the report was sent to the said Distributors. On further enquiries it was revealed that the drug in question was purchased from the Company Uni-Sankyo Ltd. who are the manufacturers. Therefore, copy of the report was sent to the company vide letter dated 13th August, 1991. Thereafter by letter dated 13th February, 1992 the said company was called upon to challenge the report under section 25 (3) of the Act. Para 16 of the complaint mentions that though the opportunity was given to challenge the report under section 25 (3) of the Act, the company did not avail of that opportunity. This does not appear to be correct. The company had by their letter dated 3rd September, 1991 addressed to the Joint Commissioner, Konkan Division, mentioned that the drug in question was not properly analysed and requested the Joint Commissioner to send the sample to the Government Analytical Laboratory, Bandra for analysis. Accordingly the Joint Commissioner had sent the sample for analysis to Analytical Laboratory at Bandra vide their forwarding letter No. 2124/91/3-A dated 3rd September, 1991. This was mentioned in the companys letter dated 13th September, 1991 addressed to the Joint Commissioner a copy whereof is annexed as Exhibit C to the petition. Pursuant to that, Government analyst had carried out the analysis and by his report dated 23rd March, 1992 opined that the contents of Lactobacillus Sporogens in the sample was within permissible limits. A copy of this report was forwarded to the company by the office of the Government Analyst along with the forwarding letter dated 16-7-1992. Mr. Desai has produced the xerox copies of the said forwarding letter and the report of the Government Analyst in Form No. 13. However, the complaint was filed in the Court by the Drug Inspector on 28-4-1992 i. e. subsequent to the report of the Government Analyst dated 23rd March, 1992 but the complaint is based on the earlier report dated 22nd July, 1991.

(3.) THE said complaint was filed against 11 accused, including the company as accused No. 8 and three directors of the company who have challenged the said complaint in this Court. On the basis of the said complaint the process was issued which is also challenged in this petition.