IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.No. 29512 of 2006 and M.P.No. 1 of 2006 1.M/s.Pondy Chemicals represented by its Managing Partner, Mr.K.Meikandasamy Kanniakoil Manapet Post, Pondicherry. 2.K.Meikandasamy 3.D.D.Venkatakrishnan, Manufacturing Chemist-cum-authorised Signatory, M/s.Pondy Chemicals, Pondicherry. ... Petitioners Versus The State represented by N.Gunasekaran, Drugs Inspector, Salem I Range, O/O.The Assistant Director of Drugs, 7,Thiruvalluvar Street, Subramanian Nagar, Salem-5. ... Respondent Prayer: Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records of the proceedings in C.C.No.348 of 2006 on the file of the Judicial Magistrate No.III, Salem and quash the same. For Petitioners: Mr.s.Thirunavukkarasu For Respondent : Mr.N.Kumanan, Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioners facing prosecution for offences under Section 18(c) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act) punishable under Section 27(b)(ii) thereof and on the charge of having manufactured the Drug Povidone Iodine 5% W/V Solution I.P. without any valid licence and endorsement. In C.C.No.348 of 2006, the Judicial Magistrate No.III, Salem has issued summons against the petitioners. 2.The Drugs Inspector had taken for analysis purposes, a sample of Iodine solution 5% W/V manufactured by the first petitioner Company of which the second petitioner is the Managing Partner and the 3rd petitioner is the Manufacturing Chemist. The report of the analyst shows that the product was not of Standard quality. Subsequently, the Officials under the Act had visited the first petitioner premises and found that the first petitioner concern held a license for manufacturing drugs which was valid upto 31.12.2006. The first petitioner concern had undergone a change of constitution, from one of partnership to a sole proprietorship Concern belonging to the second. The change of constitution had not been duly informed as per the rules towards obtaining a fresh license within the stipulated period of three months. A major contravention alleged was that the licence issued to the first petitioner did not extend to production of the seized drugs. Hence, the complaint has been filed against the petitioners herein for offence under Section 18(c) of the Act for having manufactured drugs without any valid license, which was punishable under Section 27(b)(ii) and for offence under Section 18(a)(i) of the Act punishable under Section 27(d) of the Act for having manufactured drugs which were not of standard quality. 3.The learned counsel for the petitioners submitted that the drugs was supplied in June 1993 and a sample was drawn from the Kumaramangalam Medical college Hospital on 17.09.2003. The report of the Analyst is dated 15.10.2003. The complaint had been lodged on 17.10.2006. The Lower Court has taken cognizance of the offences alleged in the complaint and issued summons to the petitioners on 02.11.2006. The learned counsel for the petitioners submitted that the maximum period of punishment for offence under Section 27(b)(ii) of the Act is three years, while in respect of the offence under Section 27(d) of the Act comes the maximum punishment only was two years. Section 468 of the Criminal Procedure Code bars the taking of cognizance of any offence by any Court after the expiry of the period of limitation in respect of category of offences specified in Sub-Section (2) thereof. Sub- Section(2) informs that the period of limitation is three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Thus the complaint would https://hcservices.ecourts.gov.in/hcservices/ be out of time and the proceedings against the petitioners have to be quashed on such sole ground. 4.The reading of Sections 468 and 469(1) of CrPC would show that the limitation, "468.Bar to taking cognizance after lapse of the period of limitation.-(1)Except as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence of the category specified in Sub-Section(2), after the expiry of the period of limitation. (2)The period of limitation shall be- (a)six months, if the offence is punishable with fine only; (b)one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c)three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3)For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. 469.Commencement of the period of limitation.- (1)The period of limitation, in relation to an offence, shall commence,- (b)where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such persons or to any police officer, whichever is earlier." 5.It is the submission of the learned Government Advocate that the complainant had knowledge of the commission of the offence only on 03.11.2003, on which date the analysis report was received by the complainant. If the period of limitation is calculated from such date, the same would expire on 03.11.2006 and if that be so, cognizance taken by the Lower Court on 02.11.2006 would well be in order. The learned Government Advocate fairly submits that the said submission is made by him on instructions and that the complaint does not disclose that the report of the Analyst has been received by the complainant only on 03.11.2003. Be that as it may, https://hcservices.ecourts.gov.in/hcservices/ the proceedings in C.C.No.348 of 2006 on the file of the Judicial Magistrate No.III, Salem would be quashed for the following reasons. 6.Section 25 of the Act reads as follows: "25.Reports of Government Analysts- (1)The Government Analyst to whom a sample of any drug (or cosmetic) has been submitted for test or analysis under Sub-section(4) of Section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. (2)The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken (and another copy to the person, if any), whose name, address and other particulars have been disclosed under Section 18-A, and shall retain the third copy for use in any prosecution in respect of the sample. (3)Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken (or the person whose name, address and other particulars have been disclosed under Section 18- A) has, within twenty eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. (4)Unless the sample has already been tested or analysed in the Central drugs Laboratory, where a person has under Sub-section(3) notified his intention of adducing evidence in controversion of a Government Analyst's report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the same of the drug or cosmetic) produced before the Magistrate under Sub-section (4) of Section 23 to be sent for test or analysis to the said laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein." 7.Under Section 25(3) of the Act a right is reserved to the accused to notify in writing the Inspector or the Court before which any proceedings in respect of the sample is pending within 28 https://hcservices.ecourts.gov.in/hcservices/ days of having received the copy of the report that he intends to adduce evidence in contraversion thereof. Sub-section(4) provides that where such intent has been communicated by the accused, the Court may on its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of the drug produced before the Magistrate, under Sub-section (4) of Section 23 to be sent for test or analysis to the Central Drugs laboratory, which shall make the test or analysis and report the result thereof in writing signed by, or under the authority of its Director. Such report shall be conclusive evidence of the facts stated therein. This is the procedure to be followed unless the sample already had been tested in the Central Drugs Laboratory. Such is not the case here. 8.The right reserved in the Act to controvert the initial analysis report is a valuable right and deprivation thereof would render invalid the prosecution launched against the accused. In the instant case, the complaint merely informs that a show cause memo and a portion of sample was sent to the manufacturer, the first accused company and that there was no reply from it. It does not inform that the initial Analysis report was sent to the first accused company. When such report has not been sent to the first accused company, the prosecution against it is bad in law since it has been deprived of its valuable right to challenge the initial analysis report. 9.For the aforesaid reason, this petition shall stand allowed and the proceedings in C.C.No.348 of 2006 on the file of the Judicial Magistrate No.III, Salem shall stand quashed. Consequently, the connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mps https://hcservices.ecourts.gov.in/hcservices/ To 1.The Judicial Magistrate-III, Salem. 2.The Public Prosecutor, High Court, Madras. RSN(CO) km/23.3. Crl.O.P.No. 29512 of 2006 and M.P.No. 1 of 2006 https://hcservices.ecourts.gov.in/hcservices/