GUJARAT GROWMED MARKETING INDIA PRIVATE LIMITED Vs. STATE OF BIHAR REPRESENTED THROUGH THE PRINCIPAL SECRETARY, HEALTH AND SERVICES, BIHAR, PATNA

JUDGEMENT

(1.) The petitioner seeks quashing of the entire criminal prosecution including order taking cognizance, dated 15.1.2002 passed by the Chief Judicial Magistrate, Aurangabad under Section 18(a)(1) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act, 1940") in Complaint Case bearing G.O. No. 267 of 2001 filed against the petitioner and others by Smt. Kamala Kumari, Drug inspector, Aurangabad.

(2.) The petitioner is a Company engaged in manufacture of medicines and oils. On 14.7.1999, the then Drug Inspector, Aurangabad inspected the medicine shop, namely M/s Magadh Medical Hall, Barun, Aurangabad. He took samples of A.D. Vitamin Baby Oil, expiring date being January, 2001 alongwith other medicines for the purpose of test/analysis in Form-17. The chemical examination report of Government Analyst, C.I.P.L., Ghaziabad dated 29.12.2000 showed that the substance was of standard quality. However, the Government Analyst sent a corrigendum on 20.2.2001 stating that the seized A.D. Vitamin Baby Oil was not of standard quality and on that basis the instant prosecution has been launched against the petitioner and others. The first report dated 29.12.2000 is contained in Annexure-4 and the second report dated 20.2.2001 is contained in Annexure-5.

(3.) The petitioner submits that the respondents utterly failed in complying with Sections 23(3) and (4) of the Act, 1940 and as such the cognizance is bad. He further submits that admittedly the second report, which indicted the quality of seized A.D. Vitamin Baby Oil was received beyond the expiry date and as such the valuable right of the petitioner to challenge the same was lost. According to him, the quality of an item can be guaranteed only up to the expiry period and no one can vouch the sustainability and its standard beyond expiry period. In support of his submission, he relied upon a decision of the Apex Court in the case of M/s.Medicamen Biotech Ltd. & Anr. V/s. Rubina Bose, Drug Inspector, 2008 AIR(SC) 1939