CRIMINAL MISCELLANEOUS No.5803 OF 2007 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. PROPRIETOR OF M/S H.C.SEN & CO. (Mfg), 5A/1 ANSARI ROAD, DARIYAGANJ, NEW DELHI. 2. M/S. H.C. SEN & CO. (Mfg), 5A/1 ANSARI ROAD, DARIYAGANJ NEW DELHI THROUGH NIRMAL KISHORE KAPOOR, AUTHORIZED REPRESENTATIVE. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. MD. JAMILU RAHMAN, INSPECTOR OF DRUGS, SAMASTIPUR, AT/PO/PS- SAMASTIPUR, DISTRICT SAMASTIPUR. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Umesh Prasad Singh, Sr.Adv. Rajeev Ranjan Prasad,Adv. Prakash Chandra Jha,Adv. For the State : Mr. Jharkhandi Upadhaya,A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The petitioners, who are manufacturers of Intestochlor suspension, have approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 20.6.2006 passed by learned Chief Judicial Magistrate, Samastipur in Complaint Case No.G.O.282 of 2006. By the said order, learned Magistrate has taken cognizance of offence under Section27(a) of the Drugs & Cosmetics Act for violating provision contained in Section 18 2 of the Drugs & Cosmetics Act,1948 (hereinafter referred to as the ‘Act’). 2. Without going in detail of the case, in this case, since short question of law i.e. infringement of right of the petitioner under Section 25 of the ‘Act’ has been raised by Shri Umesh Kumar Singh, learned Senior Counsel appearing on behalf of the petitioners, there is no requirement to give detail facts of the case. In this case, on 22.4.2003, Drug Inspector, Samastipur had taken sample from M/S Janta Drug House, Samastipur vide Form 16, which is enclosure to the complaint petition. After obtaining the sample, same was sent for analysis examination and thereafter, the report was obtained, which indicated that drug in question was non-standard. Subsequently, enquiry was conducted by the Drug Inspector and finally name of the petitioner no.2 i.e. Company transpired under Section 18A of the Act and thereafter while communicating a copy of analysis report, the petitioner was asked to file show cause vide letter dated 4.1.2005. However, it was submitted by Shri Singh that the petitioner disputed the 3 report, but subsequently, on 5.6.2006, complaint was filed and in a mechanical manner, the learned Magistrate has taken cognizance of the offence by an order dated 20.6.2006 i.e. the impugned order. On perusal of the complaint petition itself, it is evident that at the time of seizure itself, the Drug Inspector had noted that the drug in question was manufactured in the month of August,2002 and date of expiry of the same was July, 2004. It has been submitted that prior to 4.1.2005, the petitioners were never intimated regarding the analysis report. Since the self life of medicine in question itself had already expired before intimation, which was sent by the authority to the petitioners, there was no point for raising the grievance for sending the sample for its examination at Central Drug Laboratory and in that view of the matter, the statutory right conferred to the petitioners under Section 25 of the Act, has completely been violated in the present case. Learned Senior Counsel in support of his stand has heavily relied on a judgment of Hon’ble Supreme Court reported in 2008(7) SCC 196 (Medicamen Biotech Ltd. Vs. 4 Rubina Bose, Drug Inspector). It has further been submitted that in identical situation, one another prosecution was launched against the petitioners and the petitioners had challenged the order of cognizance passed in the said case vide Cr. Misc. No.50922 of 2006, which was disposed of along with Cr. Misc. No.50299 of 2006. Record shows that on 29.1.2010, judgment was delivered in favour of the petitioners relying on the judgment of Biotech Ltd. (Supra). It was held in the case that violation of Section 25 of the Drugs and Cosmetics Act was enough for quashing of the order of cognizance. Accordingly, Cr. Misc. No.50922 of 2006 along with Cr. Misc. No.50929 of 2006 were allowed. 3. In the present case, it has not been disputed by learned Additional Public Prosecutor that self life of the drug in question had already expired before the petitioners were intimated. In the present case, obviously, the petitioners were intimated after expiry of the self life of the medicine and as such there was no question for compliance of Section 25 of the Act. Meaning thereby that in that event, 5 there was no possibility for getting the sample re-tested by the Central Drug Laboratory and as such the statutory right of the petitioner, which was mandatory in the present case has been infringed. 4. Accordingly, the order of cognizance dated 20.6.2006 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 22.11.2010 N.A.F.R./N.H.