Crl. Misc. No. M-21461 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl. Misc. No. M-21461 of 2009 (O&M) Date of decision :06.04.2011 Balwan Singh .....Petitioner versus State of Punjab and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. G.S. Sandhewalia, Advocate for the petitioner. Sh. Munish Kumar, A.A.G., Punjab for respondent No. 1 -State **** RITU BAHRI , J. (Oral) The present petition has been filed under Section 482 Cr.P.C for quashing of complaint dated 09.05.2008, registered under Section 18(a) (i), 18 B read with Section 27 (c) and 28-A of Drugs and Cosmetics Act, 1940 (herein after to be referred as 'the Act') and the summoning order dated 13.05.2008 (Annexure P14) along with order dated 16.09.2004 (Annexure P11) and all subsequent proceeding in this case, pending in the Court of Chief Judicial Magistrate Kapurthala. Brief facts of the case are that the petitioner is a Director of M/s Tas Med (India) Ltd.(for brevity 'company'), registered under the Companies Act, 1956 and having three Directors since 1993 and is engaged in the business of manufacturing Drugs. The company had entered into a loan license with M/s Mefro Pharmaceuticals Pvt. Ltd. situated at F-68, Industrial Area, Phase VII, Mohali, for manufacturing drugs in their Crl. Misc. No. M-21461 of 2009 -2- premises as per the approved list and the said license was issued by the Licensing Authority and Drugs Controller Punjab on 27.07.2001. On 20.08.2001 (Annexure P1), a sample of LAM Tablets (containing Alprazolam salt) bearing Batch No. 560, Manufacturing date:August 2001 and Expiry Date: July 2004, manufactured by M/s Mefro Pharmaceuticals Pvt. Ltd for M/s Tas Med (India) Pvt. Ltd, were tken from M/s R.N. Chopra and Sons at Phagwara Distt. Kapurthala by the then Drug Inspector along with his team, vide Form No. 17-A, after payment of Rs.90/- for which a bill was prepared. Thereafter, the sample was sent to the Government Analyst Punjab Chandigarh on 21.08.2001. On 14.05.2003(Annexure P2), a report of the Government Analyst was received. This report was to the effect that the contents of Lam .25 Tablet were not having the contents of Alprazolam salt against the claim of .25 mg and therefore, the same was spurious in respect of the active ingredient of Alprazolam. On receipt of the report, the then Drugs Inspector, Kapurthala sent a notice to M/s R.N. Chopra & Sons on 02.06.2003 along with copy of Test report and intimated that they had purchased the medicine from National Medical Agencies, 9-B, Dilkusha Market Jalandhar, vide Bill dated 16.08.2001, whereupon a notice was sent to National Medical Agencies and they informed that they had purchased the drugs from M/s Aar Dee Enterprises, EK 219, Phagwara Gate, Jalandhar City, vide Bill dated 13.08.2001 and 12.09.2001 and accordingly notice was sent to M/s Aar Dee Enterprises on 12.08.2003 and they informed that vide letter dated 15.8.2003 they purchased the drug in question from the petitioner-company. Ultimately, the notice was sent to the petitioner- company at Chandigarh that the sample of the drug taken on 20.08.2001 Crl. Misc. No. M-21461 of 2009 -3- was not of standard quality and misbranded and explanation was asked from the petitioner-company, to which the reply was filed on 03.10.2003 (Annexure P4) that the drug in question was being manufactured by M/s Mefro Pharmaceuticals Pvt. Ltd F-68. Thereafter, notice dated 03.02.2004 was sent to petitioner- company c/o M/s Mefro Pharmaceuticals Pvt. Ltd. The petitioner-company gave reply to the notice on 22.02.2004 (Annexure P6) with a request for getting the drugs retested from Central Drug Laboratory, Kolkata, as per the provisions of Section 25(4) of the Act. The petitioner in the meantime got tested another sample of the same batch bearing No. 560 from an government approved Laboratory under the Act on 11.05.2004 (Annexure P7). On 27.05.2004 (annexure P9) almost three months after the request of the petitioner, an application was filed before the Chief Judicial Magistrate, Kapurthala with a prayer that the sample in question be sent to Central Drug Laboratory, Kolkata for retesting under the provisions of Section 25(4) of the Act. As the drug validity was expiring, the respondent-complainant made an effort to serve the petitioner-company in the proceeding pending for retesting on 14.06.2004, 01.07.2004 & 16.07.2004. On 16.09.2004, the Drugs Inspector made a request that the application for retesting be withdrawn as the validity of the drug in question had expired in July, 2004. The petitioner-company thereafter got the demand draft No. 91384798 cancelled and the said amount was again credited to the account of the petitioner-company on 25.01.2005. After four years, the present complaint dated 09.05.2008 (Annexure P13) came to be filed under Section 18(a) (i) punishable under Section 27 (c) of the Act against the petitioner-company and other co-accused. Vide order dated 13.05.2008 (annexure P14), the Crl. Misc. No. M-21461 of 2009 -4- petitioner-company have been summoned to face the trial. Mr. G.S. Sandhewalia, Advocate, counsel for the petitioner has vehemently argued that as per Section 25(4) of the Act, the petitioner- company has lost its valuable right of getting the sample retested from the Central Drug Laboratory, Kolkata and after the expiry of the drug in July 2004, the complaint dated 09.05.2008 is not maintainable. Learned counsel for the petitioner has placed reliance upon the judgments of the Apex Court in the cases of 'M/s Gupta Chemicals Pvt. Ltd & others v. State of Rajasthan and another, 2002(4) R.C.R. (Criminal) 762', 'Medicamen Biotech Limited and another vs. Rubina Bose, Drug Inspector, (2008) 7 SCC 196', 'State of Haryana vs. Unique Faramiad P. Ltd., 2000 (1) PLR 290' and 'Northern Mineral Limited vs. Union of India and another, (2010) 7 SCC 726'. Learned State counsel has argued that test report has been received on 14.05.2003 and the drug was declared not of sub-standard quality in respect of uniformity weight and the contents of Alprazolam was found to 0.0mg/tab against claim of 0.25 mg. In the present case, copy of drug test repot from government analyst was sent to the petitioner-company on 10.09.2003 that the sample of the drug taken on 20.08.2001 was not of standard quality and misbranded. The petitioner-company on 22.02.2004 (Annexure P6) requests for getting the drugs retested from Central Drug Laboratory, Kolkata, . The application of the petitioner in the Court of Chief Judicial Magistrate, Kapurthala under Section 25(4) for retesting the sample was filed on 27.05.2004 and the petitioner-company never appeared before the Chief Judicial Magistrate, Kapurthala to enable the Court to send the drug for retesting. The petitioner-company was not interested in getting the Crl. Misc. No. M-21461 of 2009 -5- retesting and never made an effort to contact the Court or the office before the expiry of the said drugs on 31.07.2004. The Chief Judicial Magistrate, Kapurthala did not accept the request of the Drugs Inspector, Kapurthala to take back the application of the petitioner-company for retesting and went ahead to summon the petitioner-company to face the trial. The complaint is thus not liable to be quashed. The request for second sample had been made before the Court of Chief Judicial Magistrate, Kapurthala on 27.05.2004 before the date of expiry i.e 31.07.2004 which could have been sent by the Magistrate on its own motion. That after submission of the application on 14.06.2004, fresh notice was issued on 01.07.2004. On 01.07.2004, the Presiding Officer was on leave and fresh notice was issued for 16.07.2004 with the report that summons had not been received served or otherwise and the case was adjourned to 11.08.2004 for service. These facts have not been denied in the reply filed by the officials respondents. The perusal of Zimni orders (Annexure P10) reveals that Chief Judicial Magistrate, Kapurthala had observed in its order dated 27.05.2004 that the sample was going to be expired within the next 2 months and the summons have been issued for 14.06.2004. Service could not be effected and fresh notice was issued to the petitioner-company for 01.07.2004. On 01.07.2004, the Presiding Officer was on leave and fresh notice was issued for 16.07.2004 with the report that summons had not been received served or otherwise and the case was adjourned to 11.08.2004 for service. The reminder was sent to Chief Judicial Magistrate to summon the accused for 16.09.2004. On 16.09.2004, the Chief Judicial Magistrate, Kapurthala passed the order that the Drug Inspector had made application for Crl. Misc. No. M-21461 of 2009 -6- withdrawal of application for retesting of the sample, which was declined by the Chief Judicial Magistrate and subsequently, vide order dated 09.05.2008, the petitioner was summoned to face the trial by observing that the applicant had been summoned by the Kapurthala Court number of times but the applicant did not appear in the Court and in the meantime, the date of drug got expired. After going through these orders, it clearly shows that service on the accused was never effected and valuable right under Section 25(4) was lost. Accordingly, the criminal misc. is allowed and the proceedings initiated against the petitioner are quashed. (RITU BAHRI) JUDGE April 06, 2011 G.Arora