LABORATE PHARMACEUTICAL INDIA LTD Vs. STATE OF J&K

JUDGEMENT

(1.) The present petition has been filed by the petitioner-Company under section 561-A Cr.P.C. (now 482 Cr.P.C.) for quashing the proceedings in case No. 70-Complaint of 2010 under section 18(a)(i) read with section 27 of the Drugs and Cosmetics Act, 1940 (for short the Act), titled, "Drug Inspector vs Shiva Medicine Traders" and all orders passed therein, pending before the learned Excise Magistrate, Jammu.

(2.) The brief facts as they emerged from the complaint are that on 07.10.2008 the respondent No. 1-the Drug Inspector went for a routine inspection along with his team members and visited the premises/shop of M/s Shiva Medicine Traders, respondent No. 2 herein situated at Reshamghar Colony, Jammu and lifted the samples of various drugs from the shop of aforesaid trader. The drugs lifted for test/analysis for Government analysis included the tablet Labchlor-250, Batch No. RDC 016, date of manufacturing 06/2018, expiry date 05/2010 manufactured by the petitioner and the Form No. 17 was filled in this regard. After preparing the samples, the Drug Inspector has also filled Form No. 18 for the purpose of sending the samples in question to the Government Analyst, C. F. D. L. Jammu for test/analysis on 10.10.2008.The Drug Inspector received the certified test report vide No. CFDL/LS/Act/tests/170/08 dated 06.12.2008 from the Government Analyst under section 25(1) of the Act vide communication dated 26.12.2008 and No. CFDL/432-433 through the office of the Controller Drugs and Food Control Organization, Jammu and Kashmir with the finding that the samples of the drug in question i.e. Tablet Labchlor-250 was not of standard quality as defined in the Act and further stated that the sample fails in assay of dissolution test and uniformity of weight of capsule content. The report of the Government Analyst is annexed as annexure D and D-1 to the complaint. Thereafter, the Drug Inspector vide letter dated 21.01.2009 directed the dealer/retailer respondent No. 2 herein to submit the details of the dealer from whom the drug has been purchased along with relevant record. The Drug Inspector has also submitted the report of the Government Analyst to the respondent No. 2. The respondent No. 2 vide letter dated 29.01.2009 disclosed that the respondent No. 2 purchased the drug in question from the respondent No. 3 and thereafter, the Drug Inspector sought requisite information even from respondent No. 3 vide letter dated 2.09.2009 and the respondent no:3 submitted the requisite information to the respondent No. 1 vide communication dated 03.09.2009. The Drug Inspector yet again pursuant to the information disclosed by respondent No. 3 sought information from respondent No. 4 with regard to the manufacturing of the drug in question vide letter dated 31.12.2009 who in turn vide letter (annexure-K) informed that the petitioner is the manufacturer of the drug in question and also produced the relevant record. It is further stated in the complaint that the Drug Inspector when came to know about the name of the petitioner, issued letter dated 06.03.2010 to the petitioner and directed him to produce sale and purchase record and total quantity of the drug in question manufactured within seven days. He also annexed the report of Government Analyst along with aforesaid letter. As the petitioner-company failed to reply the communication dated 06.03.2010 (supra) within 28 days as stipulated under section 25(3) of the Act and did not provide the requisite record as sought by the Drug Inspector, so after obtaining the sanction from the competent authority, a complaint was filed against the petitioner-company as well as other accused. It is submitted by the petitioner that in response to the letter dated 06.03.2010 dispatched on 08.03.2010 and received by the petitioner-company on 22.03.2010, the petitioner vide letter dated 10.04.2010 intimated the respondent No. 1 that the petitioner has conducted the in-house test in the laboratory and found the medicine to be of a standard quality and it was also stated in the letter that no sample as required under section 23 (4)(iii) of the Act was sent to the petitioner and without examining the sample it was not possible for the petitioner to ascertain whether the drug in question was manufactured by the petitioner or not. It was also stated in the letter that the petitioner does not accept the Government Analyst report and want to adduce the evidence in contravention of the findings of the Government Analyst report and further it was stated that the product be sent to appellant's laboratory i.e. Central Drugs Laboratory, Kolkata and the petitioner was ready to pay the reanalysis charges. The petitioner reiterated the same vide another letter dated 19.05.2010. The petitioner has placed on record the copies of letter dated 10.04.2010 and 19.05.2010 along with the postal receipts dated 12.04.2010 and 22.05.2010. It is further stated by the petitioner that respondent No. 1 deliberately concealed the letter from the court and filed the complaint.

(3.) The petitioner has sought the quashing of the criminal proceedings primarily on the ground that the petitioner's right of retesting the drug in question has been violated by the Drug Inspector concerned by not complying the provisions of section 25(4) of the Act and further due to belated filing of the complaint just few days before the expiry of the sample has resulted in to denial of right of testing as envisaged under sec. 25(3) and 25(4) of the Act.