IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50922 of 2006 5 29.1.2010 H.C.Sen & Co. (Mfg.), a partnership firm, 5, A/1 Ansari Road, Daraganj, New Delkhi through Sri Nirmal Kishore Kapoor, Partner and representative Appointed by the Partners of the firm ... Accused- Petitioner VERSUS 1. The State of Bihar and 2. Drug Inspector, At/PO/PS- Supaul, District Supaul .... Complainant- Opposite parties WITH Cr.Misc. No.50929 of 2006 Prakash Kumar Sikaria S/o Sri Jagdish Prasad Sikaria, R/o Old Exchange Road, P.S. Raxaul, P.O. Raxaul, District East Champaran, Prop. M/s Supreme Pharma ..... Accused – Petitioner VERSUS 1. The State of Bihar and 2. Drug Inspector, At/PO/PS- Supaul, District Supaul .... Complainant- Opposite parties -------- For the Petitioner : M/s Umesh Prasad Singh, Sr Advocate & Raghwendra Kr. Singh, Advocate For the State : Dr Maya Nand Jha, APP -------- Heard learned counsel for the petitioners in both these quashing applications and leaned counsel for the State. Both the cases arise out of Complaint Case No. 5(C) /2005 (State v. H.C.Sen & Company) pending before the Chief Judicial Magistrate, Supaul wherein cognizance has been taken against the petitioners and one another on 2 6.5.2006. The prayer is to quash the complaint case as well order of cognizance on the ground that although sample of the drug in question was taken from M/s Godavari Medical Agency on 29.8.2003 at Supaul, as would appear from enclosure to the complaint petition, the Analyst’s Report which has been enclosed as Annexure-6, the sample sent by the Inspector through memorandum dated 30.8.2003 was examined belatedly by the Bihar Drugs Control Laboratory, Government of Bihar on 2.4.2004 and the report itself indicates that the drug was to expire in April 2004. Learned counsel for the petitioners in both the cases has relied upon a judgment of the Supreme Court in the case of Medicamen Biotech Limited v. Drug Inspector, reported in (2008) 7 SCC 196 and has submitted that as per law indicated by the Supreme Court in that judgment it was necessary for the prosecution to comply with Section 25 of the Drugs and Cosmetics Act, 1940 and give copy of Analyst’s Report to the person from whom the sample was taken as well as to the petitioner, H. C. Sen & company, the manufacturer of the drug whose 3 name was disclosed under Section 18A of the Act so that they could have the opportunity of contesting the report within 28 days of receipt of a copy of the same. From the facts mentioned in the complaint petition which is available on record, it is clear that although name of the manufacturer was allegedly disclosed under Section 18A of the Act but no copy of the Analyst’s Report was furnished to the manufacturer. It is also apparent from the report contained in Annexure-6 that shelf life of the drug which was seized as a sample expired in April 2004 itself and such belated Analyst’s Report prepared in April 2004 created a situation where the affected parties could not have challenged the correctness of the report and sent other parts of the sample for analysis to the Central Drugs Laboratory. In the aforesaid facts and circumstances apparent from the record, the principle laid down by the Hon’ble Supreme Court in the case of Medicamen Biotech Limited (supra) is clearly attracted. The petitioners’ right under Sections 25(3) and 25(4) was lost due to delay in testing the sample drug and in filing the 4 complaint. In that view of the matter, this Court has no option but to allow both the applications and quash the complaint case in question and also the order of cognizance under challenge. Accordingly, both the applications are allowed. (Shiva Kirti Singh,J.) sk