IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 Crl.MC.No. 261 of 2004(C) ------------------------------------------ CC.2863/2001 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONERS/ACCUSED 1 TO 3: 1. M/S. NEMI PHARMA PVT.LTD.,1204, CHANDAN BALA, R.T. MARG, RIDGE ROAD, MUMBAI-400 006, REP. BY THE DIRECTOR, LALIT SURENDRA TALATI. 2. MR. LALIT SURENDRA TALATI, 1204, CHANDANBALA APAARATMENT, RATILAL THAKKAR MARG, OFF.RIDGE ROAD, WALKESHAR, MUMBAI-400 006. 3. MRS. SAROJ LALIT TALATI, DO. DO. BY ADV. SRI.K.V.SADANANDA PRABHU SRI.T.GOPALAKRISHNAN RESPONDENTS/COMPLAINANT/STATE: 1. STATE REP. BY DRUGS INSPECTOR O/O. ASSISTANT DRUGS CONTROLLER, ERNAKULAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.M.C.No. 261 of 2004 --------------------------- ORDER Petitioners are the accused in C.C.No.2863/01 on the file of the Chief Judicial Magistrate's Court, Ernakulam, registered on the basis of Annexure-A complaint filed by the Drugs Inspector, Ernakulam. The prayer in the Crl.M.C. is to quash the proceedings initiated on the basis of Annexure- A complaint, alleging that it is an abuse of the process of court, which will result in harassment to the petitioners and however, is not to end in their conviction, even on the case alleged. 2. The contention that is advanced before me by the learned counsel for the petitioners is that under clause (3) of Section 25 of the Drugs and Cosmetics Act (hereinafter referred to as 'the Act'), the report of the Government Analyst will be conclusive evidence only in the event of the manufacturer of the drugs or the person, from whom the sample was taken, has, within 28 days of the CRMC 261/04 2 receipt of a copy of the report, notified in writing to 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; that in the instant case Annexure-D letter addressed to the Drugs Inspector by the first appellant shows that they were not agreeable to the Government Analyst's report and wanted to adduce evidence in controvertion of the report and would like to have the same sent for further analysis of the higher authority; that the fact that such a letter had been given is also stated in the last paragraph of page 2 of Annexure-A complaint and that, therefore, the learned Magistrate had no jurisdiction to take cognizance of the offence on the basis of a report, which had not become final and issue summons to the petitioners/accused. It is his further contention that Annexure-B summons to the petitioners would go to show that it was issued only in June 2002, CRMC 261/04 3 namely, after the expiry of the shelf life of the drug and therefore, the petitioners were deprived of a valuable right to have the drugs examined by the higher authority and hence, the proceedings as against the petitioners are to be quashed. 3. It is true that the date of manufacture of the drug which is complained of as not maintaining the prescribed standard, as evidenced by Annexure-C report, was May 1999 and its expiry date is April 2002. Annexure-A complaint shows that the learned Magistrate has registered the case as C.C.No. 2863/01 for offence under Section 32 Act and ordered summons to the accused on 11.09.2001 and posted the case for return of the summons to 23.11.2001. So, it is not a case where summons was issued only after the expiry of shelf life of the drug. A party, who avoids acceptance of summons and accepts summons only at a later stage, cannot claim advantage of the summons having been served on him only much later and cannot claim the benefits that CRMC 261/04 4 may consequently arise. The second ground of contention cannot, therefore, be upheld. 4. As regards the first contention also, there is no merit in view of the wordings in clauses (3) and (4) of Section 25 of the Act. As per clause (3) of Section 25 of the Act, a report signed by a Government Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive unless the person, from whom the sample was taken or person, whose name, address and other particulars had been disclosed under Section 18A of the Act, has, within 28 days of receipt of a copy of the report, notified in writing to 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. In the instant case, the proceedings were not pending before the court as on the date of receipt of a copy of report by the petitioner. They have by Annexure-D letter dated 14.11.2000 addressed to the CRMC 261/04 5 Drug Inspector, Ernakulam notified to the Drugs Inspector that they do not agree with the Government Analyst's report and they want to adduce evidence in controversion of the report and that they would like to send the sample for further analysis by the higher authorities. Clause (4) of Section 25 of the Act speaks of situations when the sample had not already been tested or analysed in the Central Drugs Laboratory. It provides that 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 of either of the complainant or of the accused, cause the sample of the drug 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 writing by or under the authority of the Director of the Central Drugs CRMC 261/04 6 Laboratory the result thereof and such report shall be conclusive evidence of the facts stated therein. Thus, unless a report of the Central Drugs Laboratory supersedes the report of the Government Analyst, the report of the Government Analyst shall be conclusive evidence. In the instant case, though an intention to have the sample examined by a higher authority was expressed in Annexure-D letter dated 14.11.2000, the petitioners have not requested the learned Magistrate to cause the sample of the drug forwarded to the Director of Central Drugs Laboratory as provided in clause(4) of Section 25 of the Act. It is worthy to bear in mind the usual human conduct. A party, who expresses his intention to adduce evidence in controversion of the report as provided in clause (3), need not entertain that intention for all times to come. It could be that though such an intention was expressed, the party so expressing the desire may give up that idea to have the sample CRMC 261/04 7 further examined by the Central Drugs Laboratory. The instant case can be treated as one such, as the petitioners had not entered appearance in time and requested the Magistrate to forward the sample to the Central Drugs Laboratory. Inasmuch as summons had been ordered as early as on 11.09.2001, I see no reason to presume that the petitioners had not come to know of the case earlier to receipt of Annexure-B summons. They have no case that there was any change in the address after submission of Annexure-D letter to the Drugs Inspector on 14.11.2000. Consequently, therefore, it could only be a case of avoidance of acceptance of summons by the petitioners, so as to advance the present contention that summons was received only after expiry of the shelf life period of the drug and tthat hey are not getting an opportunity to make any motion before the Magistrate to have the drug samples examined by the Central Drugs Laboratory. In the circumstances, I see no merit in the prayer CRMC 261/04 8 to quash the proceedings as against the petitioners. This Crl.M.C is, hence, dismissed. 9th January, 2008 (K.P.Balachandran, Judge) tkv