IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.531 of 2003 Date of decision: 22.10.2010 State of H.P. Appellant Versus Chaman Lal & Ors. Respondents Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? For the appellant: Mr. Vikas Rathore, Addl. Advocate General For the respondents: Mr. Ajay Sharma, Advocate. V.K.Ahuja, J. (Oral): This is an appeal filed by the appellant/State of H.P. against the judgment of the Court of learned Chief Judicial Magistrate, Una dated 15.7.2002 vide which the respondents were acquitted of the charge framed against them under Sections 18(a)(i) and Section 27(a) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the “Act”). 2. Briefly stated, the facts of the case are that on 20th August, 1992 CW-1 Navneet Marwah Drug Inspector visited the shop of Ram Lal respondent No.2 and respondent No.1 Chaman Lal was found present there. He gave him his introduction and purchased certain medicines from him for analysis. The samples were taken which were duly sealed at the spot and the samples so taken were sent to the Office of the Public Analyst, Chandigarh and after receipt of the report of the Whether the reporters of Local Papers may be allowed to see the Judgment? public analyst, he filed the complaint as against respondent No.1 who was present there, respondent No.2 the owner of the shop in question and against respondents No.3 to 5 the alleged manufacturers of the drugs in question. 3. The complaint was filed under Section 18(a)(i) of the Act and all the respondents were tried by the learned trial Court leading to their acquittal. 4. I have heard the learned counsel for the parties and have also gone through the record. 5. The learned Addl. Advocate General for the appellant has not specifically challenged the findings of the acquittal recorded as against respondents No.3 to 5 the alleged manufacturers since the complainant had failed to proved that these drugs were purchased from respondents No.3 to 5 by respondent No.2 and the learned trial Court had given sound reasoning under point No.3 in this regard. No infirmity could be pointed out during the course of arguments in regard to the findings recorded under point No.3 as to the responsibility to be fastened on them and, as such, those findings do not call for an interference by this Court. 6. Coming to the charges as against respondent Nos. 1 and 2, a specific plea has been taken during the course of arguments that the complainant was not authorized to take the sample within the District Una. According to the assertions made in the complainant, the complainant was authorized to take the samples for Solan and Sirmaur as per the notification dated 25.7.1992 Ex.CW-1/A. This clearly shows that he was authorized to take the sample under the provisions of the Act within the area of Solan and Sirmour districts. The complainant has placed on record, a copy of the notification Ex.CW-2/A dated 17.12.1992 vide which he was authorized for the Solan and Sirmaur area and not for Una. The sample in question was taken on 20.8.1992. There is no notification on the file to prove from the statement of the complainant vide which he was authorized to take sample within District Una on the date, the sample was taken by him. Once his jurisdiction was confined to Solan and Sirmaur and he was not authorized to take the sample within District Una, it cannot be said that he was competent to take the sample from the respondents. 7. According to Rule 21 of the Act, the State Government can appoint the persons to be the inspectors for such area, as may be assigned to them by the Central or the State Government as the case may be. From a perusal of Sections 22 and 23 of the Act, it is clear that the powers can be conferred upon the inspectors to be exercised by them within the area to be specified but since the complainant was never assigned the area of Una, nor any notification in this regard has been placed on record, I accordingly hold that that the complainant was not competent to take the sample from the shop of the respondents. Therefore, the procedure followed by him for taking the sample and seeking the report of the Public Analyst cannot be linked with the respondents so as to hold them guilty. 8. Apart from the above, it has come on record, as per the statement made by CW-1 Navneet Marwah that he never sent any copy of the report of the public analyst to respondent No.2. There is no postal receipt on record to show that such copy of the report was dispatched to respondent Nos. 1 and 2. However, he has stated that he personally delivered the copy to the Public Analyst to respondent No.1 at the spot and also obtained a receipt from him which has been proved in evidence as Ex.CW-1/K. A perusal of the notice Ex.CW-1/K shows that he has issued a show-cause notice to the firm of respondent No.2, namely, M/S G.R.D.Medicines, Saloh District Una, H.P. and they had been asked to reply to the show-cause notice within 28 days. The notice is in the form of a show-cause notice, however, this notice never specified that respondent Nos. 1 and 2 were informed of their right to get the sample analyzed if they are not satisfied with the report of the Public Analyst Therefore, it cannot be said that the provisions of the Act were fully complied with. Notice was issued to the Company and it was received by Respondent No.1 and no separate notice was issued to him though the sample was taken from him, therefore, there is nothing to establish that the report of the public analyst was sent to them and they were apprised of their right to get the sample analyzed. 9. Apart from the above, the learned counsel for the respondents had submitted that there is nothing on record to show that the sample was duly sent to the Public Analyst and any postal receipt or Acknowledgment Due has been placed on record by the complainant. The complainant in his statement has stated that he does not recollect how he sent the sample to the office of the Public Analyst meaning thereby that there is nothing to show if it was delivered to the office of Public Analyst at Chandigarh and it was sent by post since no postal receipt or AD has been placed on record. However, in the complainant he has stated that it was sent though registered post. The sample in question was not sent on the date it was taken i.e. 20.8.1992 but according to the report dated 24.8.1992 the report of the Public Analyst Ex.CW-1/J, it is clear that it was received in the office of the Public Analyst on the same date i.e. 24.8.1992 and the specimen impression of the seal was also sent separately on the same date. Therefore, it is highly improbable that the sample was received on the same date when it was dispatched either from Una where the Sample was taken or from Solan where the complainant was posted and it is difficult to hold that the sample reached the office of the Public Analyst on the same day. There is nothing to establish on record that the sample could be sent and received in the office of the Public Analy8ist on the same day when judicial notice of the fact can be taken that Chandigarh is at a Distance of 120 KMs. from Una and in case the same had been sent from Solan the distance is about 80 KMs and there is nothing to establish that the sample or the registered letters sent are delivered at Chandigarh on the same date. The complainant should have produced the postal receipts on record to remove the ambiguity or doubt in the mind of the Court that the sample was duly sent to the Public analyst. 10. In view of the above discussions, I accordingly hold that the final findings recorded by the learned trial Court that that the prosecution has failed to prove its case, cannot be said to be perverse calling for an interference by this Court. 11. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds stand discharged forthwith. October 22, 2010 ( V.K. Ahuja ), (SDS) Judge