GLAXO INDIA LTD Vs. STATE OF M. P.

JUDGEMENT

(1.) By this petition u/S.482 of the Cr.P.C, the petitioner has prayed for a direction to quash the prosecution/proceedings in Criminal Case No.649/1997 State of M.P. Vs. M/s.Glaxo India Ltd. And others pending before the Court of JMFC, Khargone.

(2.) The case of the petitioner is that it is manufacturer of drugs including Betnesol Tablet. On 6/1/1996, drug inspector had picked a sample of Betnesol Tablet batch No.N.B.750 bearing manufacturing dated 11/95 and expiry date 4/97 from Adarsh Medical Agency, Khargone. The government analyst in the report dated 14/5/1996 had found the sample to be substandard and on the basis of the said report a complaint alleging commission of offence u/Ss.18(a)(i), 18(a)(vi) and 18(a) (iii) punishable u/S.27(d) of the Drugs and Cosmetics Act, 1940 (for short "the Act") was filed on 22/4/1997. The petitioner contraverted the report of the analyst by letter dated 12/9/1996 enclosing therewith the earlier letter dated 1/7/1996 containing the detailed explanation about the analytical difficulties faced by the government analyst. The petitioner had submitted the application dated 1/7/1996 u/S.25(3) of the Act for sending the sample to Director, Central Drugs Laboratory for analysis/testing as per Indian Pharmacopoeia, 1996. No reply to the said application was filed by the respondent and the learned JMFC had dismissed the application by order dated 25/1/2011. Against this order, revision petition No.63/2011 was filed by the petitioner before the Court of Addl. Sessions Judge, Khargone which was allowed by order dated 24/1/2013 by holding that the trial court ought to have sent the sample to Central Drug Laboratory for testing and interfering with the order of the trial court dated 25/1/2011 by directing the trial court to grant permission for getting the sample tested from the Central Drug Laboratory (CDL). The trial court had sent the sample to the CDL for analysis and testing on 22/11/2015 and thereafter several reminders were sent by the trial court to the CDL requisitioning the report. The report dated 5/5/2017 was received by the trial court from the CDL on or about 22nd July, 2017. The report of the CDL was inconclusive as the sample had expired. Hence, the petitioner had filed the application dated 29/7/2017 for terminating the proceedings which was replied by the respondent and the trial court by the order dated 2/11/2017 had dismissed the application by holding that the case being a summons case it does not have the power to quash the proceedings. Hence, the present petition was filed. Pending this petition, the trial court had vide order dated 13/12/2017 had recorded the particular of offences u/Ss.18(a) (i), 18(a)(iii) and 18(a)(vi). Therefore, after amending the petition, the order of the trial court dated 13/12/2017 has been questioned.

(3.) Learned counsel for petitioner submits that the complaint was filed belatedly when the sample was going to expire, therefore, the petitioner had lost the opportunity to get the sample tested through CDL. He further submits that from the report of the Government Analyst, the offence is not made out and on account of the delay caused by the respondent, the petitioner had lost his valuable right to obtain the report of the CDL u/S.25(3) of the Act as by that time the sample had expired and much delay had taken place, therefore, the report of CDL is inconclusive. He also submits that the particulars of the offence in the order dated 23/12/2017 have not been noted from the report of the Analyst or CDL report, but from the extraneous material, hence they are unsustainable. In this background he has prayed for quashing the pending proceedings.