IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF NOVEMBER, TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1460 OF 2009 Between: The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND 1. M/s. Indo American Advanced Pharmaceuticals Ltd. 2. Sri T. Ramakrishna ..... Respondents/Accused The Court made the following: JUDGMENT: This Criminal Appeal, under Sections 378 (1) & (3) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed by the State against the judgment of acquittal, dated 06.09.2008, in C.C.No.208 of 2004, passed by the learned Judicial Magistrate of I Class, Tadipatri, whereunder and whereby the Respondents/Accused Nos.1 & 2 were acquitted of the offences punishable under Section 18 (a) (i) of the Drugs and Cosmetics Act, 1940 (for short, “the Act”). 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: P.W.1-Drug Inspector inspected the premises under the name and style of “M/s.Himabindu Medical & General Stores”, situated at 16/411-A, RF Road, Nandalapadu, Tadipatri, on 14.02.2001. On inspection, P.W.1 found Alax I.P. 0.5 mg tablets and observed that on outer cover, it was printed as Alprazolam U.S.P., and on the strip, Alprazolam I.P. was printed and also the name of the manufacturer and manufacturing license number was printed. P.W.1, after following due procedure under Section 23 of the Act, picked up two types of drugs on the same day for analysis and sent one sample containing 8 x 10 tablets of Alex I.P. 0.5 mg, Batch No.AL 5001 with manufacturing Date 02/2000 and expiry date 01/2003 manufactured by M/s.Indo American Advanced Pharmaceuticals Ltd., Gowwravaram, to the Senior Scientific Officer i.e., the Government Analyst, Drugs Control Laboratory, Hyderabad. The Government Analyst, Drugs Control Laboratory, Hyderabad, after analysis, opined that the sample was declared as not of standard quality as the sample did not meet the labeled claim in respect of Alprazolam content. Thereafter, P.W.1 addressed a letter to Accused No.1 as contemplated under Sections 18A & B of the Act. The Accused No.1 gave a reply stating that the samples were acquired from M/s.Praveena Agencies, situated at 8-2-19, Brindavan Street, Kavali, Nellore District, vide Credit Invoice No.06/72, dated 11.10.2001. Duly following Rule 96(vii) of the Act, the date of expiry for Alax I.P. 0.5 mg tablets, Batch No. AL 5001, was labeled 01/2003 i.e., the drug is recommended till the last day of the month of January, 2003, as per the explanation given to Rule 96 and in view of the nearing expiry date on 06.01.2003, under Section 23 (4) (ii) of the Act, the second sample was produced before the learned Judicial Magistrate of I Class, Tadipatri, with a request to forward the same to the Director, Central Drug Laboratory, Calcutta. P.W.1 further stated that M/s.Praveena Agencies, Kavali, submitted sale bill, distribution particulars and purchase bill for Alax 0.5 mg, Batch No. AL 5001 tablets. On 26.06.2003, the second sample was forwarded to the Director, Central Drug Laboratory, Calcutta, who reported on 17.10.2003 thus: “No opinion could be given regarding standard and quality of the sample as per drugs and Cosmetics Act and rule as the sample was received and tested after date of expiry (1/2003).” After completion of formalities and obtaining necessary sanction, the present complaint was filed. 3. When the accused were examined under Section 251 of Cr.P.C. for the offences punishable under Section 18 (a) (1) of the Act, they denied the offences, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 3 and got marked Exs.P1 to P52 besides case property M.O.1. 5. After closure of the prosecution evidence, the accused were examined under Section 313 of Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same and reported no evidence. 6. The trial Court, after considering the evidence on record, found the Accused No.2 not guilty of the offence punishable under Section 18 (a) (i) of the Act, as he was not the Director at the relevant point of time of manufacturing of the Alax I.P. 0.5 mg tablets and the report given by the Director, Central Drug Laboratory, Calcutta, supercedes the report of the Government Analyst, Drugs Control Laboratory, Hyderabad, and accordingly acquitted the accused. Challenging the same, this Criminal Appeal is filed by the State. 7. Now the point for determination is whether the complainant proved its case beyond all reasonable doubt against the accused of the offences punishable under Section 18 (a) (i) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel appearing for the learned Public Prosecutor contended that the evidence of P.W.1 would clearly go to show that P.W.1 purchased the drug in question from the shop of M/s.Himabindu Medical & General Stores who inturn purchased the same from M/s.Praveena Agencies, Kavali, and the dealer stated that Accused No.1 was the manufacturer of the said drug that the Analyst opined that the drug was not of standard quality and therefore, she prays to set aside the judgment of acquittal. 9. There cannot be any dispute that in dealing with the Criminal Appeals against the order of acquittal, the Appellate Court has got full power to reappreciate the evidence available on record, but it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt and that presumption of innocence is further strengthened by an order of acquittal. Unless the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 10. The drug in question i.e., Alax I.P. 0.5 mg, was analysed by the Government Analyst, Drug Control Laboratory, Hyderabad, and the Analyst opined that the sample was declared as not of standard quality as the sample did not meet the labeled claimed in respect of Alprazolam content. There cannot be any dispute that sub-standard quality is an offence punishable under Section 18 (a) (i) of the Act. It is also not in dispute that Accused No.1 is the manufacturer of the drug in question. Accused No.1 exercised his right to send the second sample to the Director, Central Drug Laboratory, Calcutta, for analysis. It is also not in dispute that Ex.P20-Notice, dated 17.12.2002, was received by Accused Nos.1 and 2 on 26.12.2002 and Accused No.2 gave a reply under Ex.P34 on 18.01.2003 and the same was received by P.W.1 on 23.01.2003 under Ex.P32. Therefore, the manufacturer viz., Accused No.1, exercised his right within 28 days as contemplated under Section 23 (4) (ii) of the Act to send the second sample to the Director, Central Drug Laboratory, Calcutta, for analysis. The Director, Central Drug Laboratory, Calcutta, analysed the sample and opined thus: “No opinion could be given regarding standard and quality of the sample as per drugs and Cosmetics Act and rule as the sample was received and tested after date of expiry (1/2003).” So, there was a delay in sending the sample to the Director, Central Drug Laboratory, Calcutta, for the second analysis. 11. It is an admitted fact that the report of the Government Analyst, Drug Control Laboratory, Hyderabad, is not a conclusive proof, whereas the report that may be given by the Director, Central Drug Laboratory, Calcutta, is a conclusive proof of evidence. Therefore, the accused lost their valuable right in view of the fact that the samples have not been deposited by P.W.1 within time. P.W.1 has not informed in time about depositing the second sample to the accused. It is his duty to inform Accused No.1 soon after the deposit of second sample to the Court. There was no fault on the part of the accused in making such a request to the learned Magistrate to send the second sample of drug to the Director, Central Drug Laboratory, Calcutta. After expiry of the manufacturing date, the drug in question has been sent to the Director, Central Drug Laboratory, Calcutta, thereby depriving the right of the accused. Therefore, the acquittal of Accused No.2 is sustainable. 12. As far as Accused No.1 is concerned, the perusal of Ex.P50-renewal of the license would go to show the names of the Manufacturing Chemists and Analytical Chemists working from 01.01.2001 to 31.12.2002. Accused No.2 was admittedly appointed as the Director of Accused No.1 company on 07.01.2001. The drug in question was manufactured in the month of February, 2000. So, by the date of manufacturing of the drug in question, Accused No.2 was not a Director. He was not incharge of, and responsible for, the manufacturing of the drug in question. Therefore, the trial Court rightly acquitted Accused No.2. The said order of acquittal does not suffer from any infirmities so as to call for interference by this Court. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 13. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 06.09.2008, in C.C.No.208 of 2004, on the file of the learned Judicial Magistrate of I Class, Tadipatri. _______________ (K.C. BHANU, J) Date: 5th November, 2009 KL