NIRMAL TALATI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is criminal misc. petition under Section 482 Cr.P.C. against the order dated 7.10.2011 passed by Additional Sessions Judge, Churu in Criminal Revision Petition No.9/2009 (48/2005), vide which, the revisional court dismissed the revision petition of the petitioners and maintained the order dated 8.6.2005 passed by Chief Judicial Magistrate, Churu framing charge under Section 27 (c) of Drugs & Cosmetics Act against the petitioners. The petitioners No.1 & 2 are partners of petitioner No.3 Firm and are engaged in manufacturing of drugs. In the year 1992, a drug-cum-cosmetic cream by name "Gentamycin Sulphat Cream (USP)" was manufactured and sold by the firm. On 6.4.1993, a Drug Inspector carried out an inspection of M/s Dhoot Medical Hall, Churu and collected the samples of Gentamycin cream having date of manufacturing as May, 92 and date of expiry as April, 1994, in terms of Section 23 of Drugs & Cosmetics Act, 1940 (hereinafter referred to as "the Act of 1940")

(2.) THE sample was sent for testing to C.I.P.L. Raj Nagar, Gaziabad (U.P.) on 8.4.1993 and the report dated 18.2.1994 was received by the Drug Inspector on 15.3.1994. The laboratory declared the sample as unauthentic and mentioned that "the sample is spurious, in that it given negative test for identification of gentamycin." The copy of the report was sent to the petitioners on 29.3.1994 i.e. just a few days before date of expiry of the drug. The said report stated to have been received by the petitioners around 7.4.1994. Admittedly, the date of expiry of this sample was 30th April, 1994. The complaint was accordingly filed by the Drug Inspector against 12 accused including the petitioners on 22.11.1994. However, the trial court proceeded only against the present petitioners for offence under Section 27(c) of the Act of 1940. While praying for setting aside the order dated 8.6.2005, passed by the trial court as well as the order of the revisional court, the learned counsel for the petitioners submitted that delay by the Drug Inspector to inform the petitioners about failing of the sample in test has prejudiced the entire case of the petitioners. It was argued that the date of expiry of the sample was 30th April, 1994, whereas the petitioners were informed in April, 1994 itself about failing of the sample and therefore, the statutory right as enshrined in Section 25(3) of the Act of 1940 has been infringed.

(3.) THE Hon'ble Apex Court in somewhat similar circumstances in the case of M/s Medicamen Biotech Ltd. & Anr. Vs. Rubina Bose, Drug Inspector, reported in 2008 AIR SCW 2201, in para 10 of the judgment held as under:-