IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE TWENTYFOURTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT: THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY CRIMINAL APPEAL No. 2 8 5 OF 2010. Between: The State of Andhra Pradesh, Represented by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. … Appellant V/s. K. Rama Rao, Proprietor, M/s. Premier Formulations, 1-32, Poranki, Vijayawada (A-1) & 2-Ors. … Respondents Counsel for the Appellant : Sri Prahalad Reddy Addl.Public Prosecutor Counsel for the Respondents : None appeared THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY CRIMINAL APPEAL No. 2 8 5 OF 2010. This Criminal Appeal has been filed by the State, represented by the Drug Inspector, Nellore, on obtaining special leave as per orders dated 18-2-2010 passed in Crl.AMP.No. 388 of 2010, assailing the judgment of acquittal recorded in CC.No. 640 of 1999 on the file of the Court of III-Additional Chief Metropolitan Magistrate at Hyderabad. 2. The Drug Inspector , Nellore, filed a complaint before III-Additional Chief Metropolitan Magistrate, Hyderabad, alleging inter alia that on 17-12-1996 he lifted samples of drug “Ibu-profen”, from the stores of M/s. DSR Headquarters Hospital, Nellore. He sent the samples for analysis to the Government Analyst, Hyderabad along with Form No.18, on 03-4-1987. The Government Analyst submitted a report stating that the sample drug is not of standard quality. Thereupon he issued notice to Superintendent, DSR Headquarter Hospital, Nellore to furnish the source of securing the tablets. The Superintendent informed him the source of securing the tablets was from M/s. Lakshmi Medical Distributors, Vijayawada. He forwarded one sealed portion of the said drug to M/s. Lakshmi Medical Distributors along with copy of the analyst report. M/s. Lakshmi Medical Distributors replied that they purchased the said drug from M/s. Premier Formulations, Vijayawada. Hence a complaint came to be presented against the A-1 K. Rama Rao, Proprietor, A-2 D.V. Nageswar Rao, A-3 N. Prasada Reddy, Analytical Chemist, A-4 M/s. Premier Formulations, represented by its Proprietor K. Rama Rao. 3. The learned Magistrate took the complaint on file as CC.No. 640 of 2010 against A-1 to A4. Pending trial, A2 died and the case against A2 came to be abated. 4. On behalf of the complainant, three witnesses were examined and 31 documents were marked. One material Object was marked as MO-1. 5. The learned Magistrate, on considering the evidence brought on record and on hearing the complainant and the accused, proceeded to find A-1, A-3 and A-4 not guilty for the offence under section 27 (d) of Drugs and Cosmetics Act and acquitted them accordingly under section 255 (1) Cr.P.C., by the judgment dated 28-10-2009. The said judgment of acquittal is assailed in this criminal appeal. 6. Heard the learned Additional Public Prosecutor for the appellant-complainant and perused the judgment impunged in the appeal. 7. The learned Additional Public Prosecutor submits that PW-1 is competent to inspect the local shops and collect samples and therefore, the findings recorded by the trial court that PW-1 is not competent to collect samples of drugs cannot be sustained. The trial court recorded the acquittal of A-1, A-3 and A-4 on the ground that PW-1 has not placed any material on record to show that he has been appointed as Drug Inspector for the area wherein M/s. DSR Headquarter Hospital, Nellore situates. Para Nos. 13 and 14 of the impugned judgment in the appeal need be noted. “13. Heard from both sides and also perused the written arguments filed by the accused. As seen from the oral and documentary evidence of the complainant, it is clear as contended by the counsel for the accused that the complainant did not properly follow the procedure laid down under the Drugs and Cosmetics Act before launching prosecution. The counsel for the accused contends that the persons who distributed the drugs also should be shown as accused. If for a moment the complainant’s argument is accepted that the drug is not that of standard quality whereas in this case no such steps were taken. The drugs were distributed through several places and through several persons, the value of the drug is likely to be deteriorated if placed under different climatic conditions that the accused cannot be held responsible for the sample lifted after some time at some other place. There is no material placed before the court to show that drug was kept in a particular temperature to preserve its ingredients, in such a situation the accused cannot be held liable for the standard of drug which was manufactured long back. His contention is that PW.1 admits that Ex.P6 is not sent with full protocols. In Ex.P8 there were no details as to the method applied for analysis of the drug. PW.1 says that he did not seize any document from accused firm and further he admits that he did not investigate regarding manufacture of the sample drug. He did not even visit the accused firm. PW.3 admits that there is no complaint from the public about the subject drug. 14. The learned counsel for the accused relied on a decision reported in 2007 Drug Cases (DC) 3 between M/s. Gaba Pharmaceuticals, Hyderabad and another Vs. State of A.P., wherein it was held by Hon’ble High Court that the provisions of Sections 20 and 21 which are mandatory should be followed by the complainant; the appointment of the analyst specifying the local area wherein the analyst can operate should be published and prosecution has to produce such gazette notification specifying the area. When the complainant failed to place such material, there is no need to adjudicate on other grounds and that itself is a lacunae. In another decision, reported in 1999 (Crl.Law Journal 4441 wherein the court observed on the same principle that without notification appointing government analyst not specifying the area wherein he can operate and analyse the appointment of such analyst also is not followed; similarly in another decision reported in 1979 Crl.Law Journal 530 furnishing protocols of test applied is mandatory under section 12 and 18 of the Act .” 8. The learned Additional Public Prosecutor has not placed before me any notification issued by the State Government appointing PW-1 as Drug Inspector for the local area wherein M/s. DSR Headquarters Hospital, Nellore, situates. In the absence of any notification, it cannot be said that he is competent to collect samples of drugs from M/s. DSR Headquarters Hospital, Nellore. The trial court having taken infraction of mandatory provisions of sections 20 and 21 of the Drugs and Cosmetics Act, 1940 proceeded to record the order of acquittal of respondents-accused. I do not see any flaw in the order impugned in this criminal appeal warranting any interference of this court. 9. Accordingly, this Criminal Appeal fails and dismissed at the admission stage. ___________________________________ JUSTICE B. SESHASAYANA REDDY. 24-02-2010. I s L THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY CRIMINAL APPEAL No. 2 8 5 OF 2010 Circulation Entry No. 20 Date: 24-02-2010 Computer No. 43 Court Master: I s L