Cri. Writ Petition No. 46 of 1998

16th September, 2000

Petitioner Counsel: Shri. UDAY DASTANE
Respondent Counsel: Shri. A. S. FULZELE

Cases Cited:
M/s. Dwarka Dass Sham Lal Vs. State of Punjab, 1994(1) EFR 572 [Para 5]
R. V. Ramani Vs. State of Madhya Pradesh, 1995 Drugs Cases 60 [Para 5]
Mohanlal Shamji Soni Vs. Union of India & Anr., AIR 1991 SC 1346 [Para 5]
State of Haryana Vs. Brij Lal Mittal, (1988) 5 SCC 343 6 [Para 9]

JUDGMENT

Judgment :- The present Criminal Writ Petition is directed against the order dated 20-11-1997 passed by the learned 4th Addl. Sessions Judge, Nagpur in Criminal Revision Appln. No. 1102/97, whereby the revisional Court confirmed the common order dated 5-6-1997 passed by the learned Additional Chief Judicial Magistrate, Nagpur in a Regular Criminal Case Nos. 37/96 & 38/96.

2. Heard Shri Uday Dastane, the learned Counsel for the petitioners and Shri A. S. Fulzele, the learned Additional Public Prosecutor for non-applicant State.

3. Few facts giving rise to the present controversy are as below :-

The petitioner No. 1 K. Guruswami is the proprietor of M/s. Ravi Surgicals, Tamil Nadu whereas the petitioner No. 2 Smt. L. Rajammal is the proprietor of M/s. Sakhti Surgicals, Tamil Nadu. Both the petitioners are engaged in manufacture and supply of Roller Closed Woven Bandage. They had supplied Roller Closed Woven Bandage to their dealers of Nagpur. The complainant is a Drug Inspector. On 6-4-1995 the sample of roller closed woven bandage drawn by the complainant from the wholeseller of Nagpur was sent to Government Analyst for analysis and as per the report of the Government Analyst, the said sample does not comply with the specification prescribed under the Drugs and Cosmetics Act, 1940 (hereinafter referred to as "the Act") and Rules made thereunder. Hence, the complainant filed Regular Criminal Case No. 37/96 against the petitioner No.1 and Regular Criminal Case No. 38/96 against the petitioner No. 2 under Section 18(a)(i) of the Act and Rules made thereunder.

4. In response to the summons issued to the petitioners, they appeared before the trial Court and were released on bail. The petitioners individually filed an application under Section 25(4) of the Act for sending one of the samples to the Central Drugs Laboratory for analysis. The learned Additional Chief Judicial Magistrate, Nagpur after hearing the parties rejected the said applications vide common order dated 5-6-1997, which was later on confirmed by the learned Additional Sessions Judge, Nagpur vide order dated 20-11-1997 by dismissing the Criminal Revision No. 1102/97. Hence, the present Writ Petition.

5. Shri Dastane, the learned Counsel for the petitioners, submitted that both the Courts below failed to interpret the scheme of Sections 25(3) & (4) of the Act. According to him, under Section 25(3) of the Act, if the accused person has notified within 28 days of the receipt of the copy of report of Government Analyst his intention of adducing evidence in controversion of the said report to the Inspector or the Court before which the proceedings are pending, the Court has no discretion but to send the sample to the Central Drugs laboratory for analysis but under Section 25(4) of the Act, the discretion vests in the trial Court to be exercised either suo motu or at the instance of the complainant or the accused person to cause the sample analysed by the Central Drugs Laboratory and accused person can avail the statutory right provided to him under Section 25(4) of the Act at the time of first appearance in the trial Court. It is further submitted by Shri Dastane that if the said discretion vested in the trial Court under Section 25(4) of the Act is to be read with a rider of 28 days from the receipt of the report of Government Analyst, in that event neither the Court on its own motion nor the complainant nor the accused person shall be able to move the trial Curt under Section 25(4) of the Act to exercise its discretion and in that case the accused person would be prevented from availing the statutory right provided to him under Section 25(4) of the Act. In support of his contention that the accused person can avail the statutory right provided to him under Section 25(4) of the Act at the time of his first appearance in the trial Court, he placed reliance on the decisions in M/s. Dwarka Dass Sham Lal. Vs. State of Punjab reported in 1994(1) EFR 572 of Punjab & Haryana High Court and R. V. Ramani and others Vs. State of Madhya Pradesh reported in 1995 Drugs Cases 60 of Madhya Pradesh High Court. It is also contended by the learned Counsel for the petitioners by referring to the provisions of Section 165 of the Evidence Act which pertain to Judge's power, to put questions or order production, that when the petitioners had made an application under Section 25(4) of the Act for sending sample to the Central Drugs Laboratory at the time of their first appearance before the trial Court, it was necessary for the trial Court to send the sample for re-testing to the Central Drugs laboratory and if the trial Court has not done it and the accused person is prejudiced because of inaction on the part of the trial Court, the accused person cannot be blamed for the same. According to him, it is cardinal rule of evidence that the best available evidence should be brought before the Court to prove the fact or the points in issue and, therefore, the learned trial Judge ought to have sent the sample to the Central Drugs Laboratory. For this he placed reliance on a decision in Mohanlal Shamji Soni Vs. Union of India & another reported in AIR 1991 SC 1346.

6. Shri. A. S. Fulzele, the learned Additional Public Prosecutor appearing for the respondent State, supported the impugned orders passed by the Courts below. It is contended by him that the right to get the sample examined by the Central Drugs Laboratory through the Court before which the prosecution is launched arises only after the person concerned notifies in writing the Inspector or the Court concerned within 28 days from the receipt of the copy of the report of Government Analyst that he intends to adduce evidence in controversion of the report. According to him, in the instant case, admittedly the petitioners received the copy of the report of Government Analyst on 1-6-1995 but inspite of the receipt of the copy of the said report the petitioners did not notify either to the Drugs Inspector or to the Court within 28 days of the receipt of the said report that they intended to adduce evidence in controversion of the said report and, therefore, not only the right of the petitioners to get the sample re-analysed by the Central Drugs Laboratory through the Court concerned stood extinguished but the report of the Government Analyst became conclusive evidence under Section 25(3) of the Act. For this he placed reliance on a decision in State of Haryana vs. Brij Lal Mittal and others reported in (1998) 5 Supreme Court Cases 343.

7. In order to appreciate the contentions raised by the learned Counsel for the petitioners as well as by the learned Additional Public Prosecutor, it will be appropriate to reproduce the provisions of Section 25(3) & 25(4) of the Act which read as below :-

"S.25 (1) ..........

(2) ............

(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under Section 18-A has, within twenty-eight days of the receipt of a copy of the report notified in writing the Inspector or the court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.

(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the court may, of its own motion, or in its discretion at the request either of the complainant or the accused cause the sample of the drugs or cosmetic produced before the Magistrate under sub-section (4) of Section 23 to be sent for test or analysis to the said laboratory, which shall make the test or analysis and report in writting signed by, or under the authority of the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.

(5) ..........................."

8. A combined reading of the provisions of both these sub-sections, in my view, clearly indicates that right to get the drug tested by Central Drugs Laboratory does not arise unless requirement of sub-section (3) of Section 25 of the Act is complied with.

9. Further, the present controversy is clearly covered by the observations made by the Apex Court particularly in paragraph No. 7 of is judgment in State of Haryana Vs. Brij Lal Mittal and others reported in (1998) 5 SCC 343 which are :-

"7. At the risk of repetition, we wish to emphasise that the right to get the sample examined by the Central Drugs Laboratory through the Court before which the prosecution is launched arises only after the person concerned notified in writing the Inspector or the court concerned (here the latter clause did not apply for the prosecution was yet to be initiated) within twenty-eight days from the receipt of the copy of the report of the Government Analyst that he intends to adduce evidence in controversion of the report. The complaint and its accompaniments (which include correspondences that took place between the Inspector and the manufacturers) clearly disclose that on 19-2-1991 the Inspector served the original copies of the Analyst's report upon the Managing Director of the manufacturers along with two letters asking for their comments. They further disclose that receiving no reply from the manufacturers the Inspector again wrote a letter on 6-3-1991 directing them to reply to his letters dated 19-2-1991 and asked whether they wanted to take benefit of the provisions of Section 25(3) of the Act. In spite thereof the manufacturers did not exercise their right (much less within 28 days from the date of the receipt of the report of the Government Analyst, i.e., 19-2-1991); and, on the contrary, in their letter dated 8-4-1991 annexed to the complaint), sent in response to the letter dated 6-3-1991, asserted that their Quality Control Department examined and tested samples of the two drugs and found that they complied with the test of sterility. It must, therefore, be said that consequent upon their failure to notify the Inspector that they intended to adduce evidence in controversion of the report within 28 days, not only the right of the manufacturers to get the sample tested by the Central Drugs Laboratory through the court concerned stood extinguished but the report of the Government Analyst also became conclusive evidence under sub-section (3). The delay in filing the complaint till the expiry of the shelf-life of the drugs could not, therefore, have been made a ground by the High Court to quash the prosecution. It will not be out of place to mention that the manufacturers' right under sub-section (3) expired four months before the expiry of the shelf-life of the drugs. In view of the above discussion, the reasoning of the High Court for quashing the prosecution against the three respondents cannot at all be sustained."

10. In the instant case, admittedly the copies of report of Government Analyst were received by the accused petitioners on 1-6-1995 but inspite of that admittedly the petitioners did not notify their intention to adduce their evidence in controversion of the said report within 28 days either to the Inspector or the Court concerned and, therefore, in view of the aforesaid decision of the Apex Court reported in State of Haryana Vs. Brij Lal Mittal and other (cited supra), the right of the petitioners to get the sample re-tested by Central Drugs Laboratory through the trial Court stood extinguished and the report of the Government Analyst became conclusive evidence under sub-section (3) of Section 25 of the Act. In view of this, the contention of the learned Counsel for the petitioners that even if the petitioners did not notify their intention to get the sample re-tested from the Central Drugs Laboratory within 28 days of the receipt of report of Government Analyst, as contemplated under Section 25(3) of the Act, they have statutory right under Section 25(4) of the Act to request the trial Court to send the sample to Central Drugs Laboratory for re-analysis on the date of their first appearance before the trial Court cannot be accepted. In this view of the matter, in my opinion, the impugned orders passed by the Courts below are just and proper and they call for no interference.

11. Accordingly, I do not find any merit in this petition and the petition is hereby dismissed. Rule is accordingly discharged.

Petition dismissed.