SURESH JINDAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present revision petition has been filed by the petitioners seeking quashing of the impugned order dtd. 6/11/2023 passed by the Judge, Special Court, Rupnagar vide which charges have been framed against the petitioners under Ss. 17A, 18 (a) (i), 27 (b) (i) and 27 (c) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act of 1940).

(2.) In brief, facts are that petitioner No.2 Firm namely M/s Cosway Pharmaceuticals is engaged in the business of manufacturing of all kinds of tablets, capsules, oral syrups, ointments and other pharmaceutical products at Plot No.11-C, Industrial Area, Tahliwal, Tehsil Haroli, District Una (HP) as well as in sale/distribution of drugs specified in Schedule C and C (i) in Forms 25 and 28 under Licence No.N-MB/15/157 and N-MB/15/158 dtd. 3/3/2017 issued by the Assistant Drugs Controller-cum-Drugs Licensing Authority. Petitioner No.1 is one of the partners of the said firm. On 6/3/2020, petitioner No.2-Firm purchased raw material for manufacturing Cosway Hand Sanitizer from M/s Mahaveer Agencies, Nalagarh along with testing report/analysis certificate dtd. 19/2/2020. On 16/3/2020, the abovesaid product was got approved from the Assistant Drugs Controller-cum-Drug Licensing Authority, District Kangra and after obtaining approval from the said authority, the said product 'Cosway Hand Sanitizer (Safe and Clean) bearing Batch No.C-02, Mft. Date: 4/2020, Exp. Date:03/2022 was got tested from the Central Government approved laboratory as well as the in-house testing on 24/25/4/2020, before releasing the same in the market. Copies of approval dtd. 16/3/2020 granted by the Licensing Authority and the Analysis Certificate dtd. 25/4/2020 are annexed with the present petition as Annexure P-3. Thereafter, after release of the product in the market, one of the retailers of petitioner No.2-Firm namely M/s Gupta Medical Agencies at Ropar purchased the same vide invoice No.040 dtd. 6/5/2020. On 8/5/2020, the Drug Inspector, Ropar inspected the premises of M/s Gupta Medical Agencies and obtained sample No.RPR/TS/2020/29 (four portions of 2x100 ml of Cosway Hand Sanitizer (Safe and Clean) (Isopropyl Alcohol, Carbopol, Carbopol, Triethanolamine, Glycerine and Chlorhexidine Digluconate Hand Sanitizer), Batch No.C-02, Mfg. Date:04/20, Exp. Date:03/2022 from the said premises. The said sample was sent to Government Analyst, Punjab, Chandigarh for testing and analysis on 11/5/2020, who vide report dtd. 29/6/2020 declared the sample in question as not of standard quality. On receipt of aforesaid report, the Drug Inspector enquired about the source from where the product was purchased by M/s Gupta Medical Agency and ultimately, it came forth that the product in question was manufactured by the petitioner No.2-Firm. Thereafter, vide letter dtd. 1/9/2020, the Drug Inspector, while sending the analysis report dtd. 29/6/2020 to the petitioners, had sought response of petitioners with respect to the same and to adduce evidence in writing within 28 days of receipt of the letter. Vide letter dtd. 15/9/2020, petitioners replied that at the time of manufacturing, they had complied with all requirements as per the Act of 1940 and because they were not satisfied with the testing done, they requested for re-assessment of the sample as per the provisions of Sec. 25 (3) of the Act of 1940. However, despite specific request made by the petitioners for providing sample to them and without asking from them the working standard and method of analysis as per the guidelines of Central Drugs Standard Control Organization (CDSCO), the Drug Inspector sent the sample in question to the Central Drugs Laboratory, Calcutta on 11/1/2021, which gave report dtd. 4/8/2021 contrary to the earlier report dtd. 29/6/2020 given by Government Analyst, Punjab. Another sample from the same batch of the product was also sent to the Government Analyst, Chandigarh, who vide his report dtd. 5/9/2020, had reported the Isopropyl Alcohol as of standard quality. However, on the basis of the contradictory reports dtd. 29/6/2020 and 4/8/2021, the Drug Inspector launched prosecution against the petitioners by filing impugned complaint wherein vide order dtd. 9/6/2022, the learned Judicial Magistrate 1st Class, Ropar had summoned them to face trial. Thereafter, the case was committed to the learned Sessions Court and vide impugned order dtd. 6/11/2023, charges were framed against petitioners under Ss. as mentioned above. Aggrieved by the order dtd. 6/11/2023, petitioners have approached this Court by way of instant petition.

(3.) Learned counsel for the petitioner inter alia contends that the impugned order dtd. 6/11/2023 passed by the learned trial Court is liable to be quashed on the following grounds:-