( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.328 OF 1999 CRIMINAL REVISION APPLICATION NO.328 OF 1999 CRIMINAL REVISION APPLICATION NO.328 OF 1999 1. Shri N.K. Gupta Director of M/s.Omega Laboratories Ltd. R/at KC-17, Kavinagar, Ghaziabad-201 002 (U.P.) 2. Shri Vipin Gupta Director of M/s.Omega Laboratories Ltd. R/at KC-17, Kavinagar, Ghaziabad-201 002 (U.P.) 3. Shri Rajiv Gupta Director of M/s.Omega Laboratories Ltd. R/at KC-17, Kavinagar, Ghaziabad-201 002 (U.P.) 4. Shri Subhash Chand Mittal Director of M/s.Omega Laboratories Ltd. R/at 5, Raj Block, Naveen Shahadra, Delhi - 32. 5. M/s.Omega Laboratories Ltd. E-13/1, Kavinagar Industrial Area, Sector - 17, Ghaziabad - 201 202 (U.P.) .. Applicants (Orig.Accused) Versus The State of Maharashtra through the Drugs Inspector, Food and Drugs Administration, (M.S.), Sadar Bazar, Camp Area, Satara - 415 001. .. Respondent (Complainant) Mr.V.A.Gangal with Mr.Ashok Gade and Mr.Prakash Kilpady for the applicants. Mr.K.V.Saste, A.P.P. for the State. ( 2 ) CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 6th May, 2008. DATED : 6th May, 2008. DATED : 6th May, 2008. JUDGEMENT :- JUDGEMENT :- JUDGEMENT :- 1. Heard Mr.V.A.Gangal, learned Advocate appearing for the applicants and Mr.K.V.Saste, learned A.P.P. for the State of Maharashtra. 2. The applicant No.5 is a company by name M/s.Omega Laboratories Limited and the business of the applicant No.5 is manufacturing drugs. Applicant Nos.1 to 4 are the directors of applicant No.5. 3. Mr.P.V.Pawar, Drugs Inspector, Food and Drugs Administration, Satara, who was empowered to work as per the provisions of Drugs and Cosmetics Act, 1940 (hereinafter referred to as the said "Act") raided a shop at Malkapur, Taluka Karad which was run in the name and style of M/s.Vishwashanti Distributors and the said Inspector Mr.Pawar seized medicine by name "AMPICLOX" having Batch No.B-147. The said sample was sent to the chemical analyst of the State Government on 17.12.1993. The test report was received wherein it was observed that the drug is "not of standard quality". The department filed complaint against ( 3 ) applicant Nos.1-5 because after the raid, investigation was carried out and it was ultimately learnt by the department that the medicine was manufactured by the applicant No.5. After the filing of the complaint on 18.2.1995, summons in regard to the said complaint was served upon the applicant Nos.1-5 in March, 1997. Application under Section 25(3) and 25(4) of the said Act was made by the applicants on 22.4.1997 requesting the Court that the sample should be sent to the Central Drug Laboratory, Calcutta. That application was decided by the learned J.M.F.C. at Karad before whom the Criminal Case No.32 of 1995 was pending. The learned J.M.F.C. granted the said application by order dated 13.6.1997 and the sample was sent to the Central Drug Laboratory, Calcutta. The said laboratory by its report dated 20.7.1997 observed that the expiry date of the drug had already expired and no opinion can be given. Based on this observation, an application for discharge was filed before the learned J.M.F.C., Karad on 3.10.1997 under Section 245(2) r/w. Section 177 of Cr.P.C. as also the provisions of Section 23(4) (iii), 25(2), (3), and (4) of the said Act. That application was decided by the learned J.M.F.C., Karad and the learned J.M.F.C., Karad rejected the said application for discharge and further directed that the organisations like M/s.Vishwashanti Distributors, ( 4 ) M/s.Himanshu Medical and M/s.Omega Laboratories Limited be joined as accused under Section 319 of Cr.P.C. 4. The applicants challenged the said order dated 3.3.1998 passed by the learned J.M.F.C., Karad by filing Criminal Revision Application No.111 of 1998 in the Sessions Court at Satara. The learned 4th Additional Sessions Judge, Satara dismissed the said revision by its Judgement dated 30.10.1999. Being aggrieved by the Judgement dated 30.10.1999 delivered by the learned 4th Additional Sessions Judge, Satara (hereinafter referred to as the learned "Sessions Judge"), the applicants have filed this revision with a view to move this Court in its revisional jurisdiction. 5. I have heard learned Advocate Mr.Gangal appearing on behalf of the applicants and learned A.P.P. Mr.Saste appearing on behalf of the State. 6. At the outset, it is required to be mentioned that it has been admitted by the respondent State that the sample of the drug "AMPICLOX Capsules" which was seized in the course of raid had Batch No.B-147 and the date of manufacture was June 1993 and the date of expiry was May, 1995 that is the drug can be used only for a period of two years i.e. up to May, 1995. This ( 5 ) point is relevant in view of the submissions which were advanced by the learned Advocate Mr.Gangal across the Bar on the question of delay in attending to the matter by the department. 7. Two contentions were raised before the learned J.M.F.C., Karad on behalf of the applicants. The first one was concerning the jurisdiction of the learned J.M.F.C., Karad to try the applicants under the said Act on the ground that the medicine was not manufactured at an area where the learned J.M.F.C., Karad was exercising jurisdiction and the second point was with reference to the delay on the part of the department which had the effect of taking away the valuable right of the accused as regards getting the samples checked by the Central Drug Laboratory at Calcutta. 8. Sofar as the question of jurisdiction is concerned, learned Advocate Mr.Gangal had submitted that the goods were manufactured beyond the State of Maharashtra and, therefore, the learned J.M.F.C., Karad had no jurisdiction. Sofar as this aspect is concerned, the learned J.M.F.C., Karad as well as the learned 4th Additional Sessions Judge, Satara has rejected the stand of the applicants and insofar as that aspect is concerned, I am inclined to accept the ( 6 ) view taken by the learned J.M.F.C., Karad as well as the learned Additional Sessions Judge, Satara because the goods came to be seized at Malkapur taluka Karad where they were placed for sale in the shop namely M/s.Vishwashanti Distributors and if at all the drugs were of a sub-standard quality, the goods would come under the relevant Sections for which the applicants were required to face the trial. To that extent, no error can be observed insofar as judgement delivered by the learned J.M.F.C., Karad as well as learned 4th Additional Sessions Judge, Satara is concerned. 9. The second point which was raised by the learned Advocate Mr.Gangal relates to the right of the accused to have the samples sent to the Central Drug Laboratory, Calcutta and the relevant aspect of causing prejudice to the accused sofar as that right is concerned. Learned Advocate Mr.Gangal relied upon the following judgements :- i) 1995 Drugs Cases 72 State of Haryana & i) 1995 Drugs Cases 72 State of Haryana & i) 1995 Drugs Cases 72 State of Haryana & Anr. v/s. A.Kumar Bansal & Ors. Anr. v/s. A.Kumar Bansal & Ors. Anr. v/s. A.Kumar Bansal & Ors. ii) 1997(2) Mh.L.J. 629 Ramanbhai B.Patel ii) 1997(2) Mh.L.J. 629 Ramanbhai B.Patel ii) 1997(2) Mh.L.J. 629 Ramanbhai B.Patel & Ors. v/s. S.R.Sharma, Drug Inspector & & Ors. v/s. S.R.Sharma, Drug Inspector & & Ors. v/s. S.R.Sharma, Drug Inspector & Anr. Anr. Anr. iii) 1999 (2) EFR 795 M/s.Zim Laboratories, iii) 1999 (2) EFR 795 M/s.Zim Laboratories, iii) 1999 (2) EFR 795 M/s.Zim Laboratories, Bombay & Ors. v/s. State of Maharashtra. Bombay & Ors. v/s. State of Maharashtra. Bombay & Ors. v/s. State of Maharashtra. 10. All the judgements relate to the very point involved in the present matter, namely, the argument ( 7 ) based on the provisions of Section 25(3) and 25(4) of the said Act. Learned Advocate Mr.Gangal had relied upon the judgement of the Supreme Court in the case of State of Haryana & Anr. v/s. Unique Farmaid P. Ltd. State of Haryana & Anr. v/s. Unique Farmaid P. Ltd. State of Haryana & Anr. v/s. Unique Farmaid P. Ltd. & Ors. reported in 2000(1) EFR 76 & Ors. reported in 2000(1) EFR 76 & Ors. reported in 2000(1) EFR 76 which was concerning the provisions of the Insecticides Act. The provisions of the Insecticides Act were para materia to the provisions of the said Act and to that extent, learned Advocate Mr.Gangal had submitted that the observations of the Supreme Court would be relevant and would be binding on this Court. 11. Learned Advocate Mr.Gangal took me through the judgement delivered by the learned J.M.F.C., Karad as well as the learned Additional Sessions Judge, Satara and submitted that both the Courts below did not appreciate the point as regards the delay in attending to the matter by the department which resulted in depriving the accused of their right in getting the report from the Central Drug Laboratory, Calcutta. Learned Advocate Mr.Gangal had drawn my attention to the fact that the alleged raid was conducted on 20.9.1993. Mr.Gangal, learned Advocate submitted that the complaint under Section 18 of the said Act came to be lodged practically after one and half year i.e. on 18.2.1995 and, thereafter, the time was taken by the department to serve the applicants and the applicants ( 8 ) could be served only in March, 1997. There was no fault on the part of the applicants in the matter of getting the summons served upon them. Learned Advocate Mr.Gangal had submitted that by that time the summonses were served upon the applicants in March, 1997, the medicine had already expired and that the applicants moved the application for sending the sample to the Central Drug Laboratory, Calcutta within the stipulated period of 28 days and to that extent, the applicants had acted in a diligent manner. Learned Advocate Mr.Gangal had submitted that the order for sending the sample to the Central Drug Laboratory, Calcutta was passed by the learned J.M.F.C., Karad on 13.6.1997 and to that extent, there was a delay of 2 months from the date when the application was filed for sending the samples to the Central Drug Laboratory, Calcutta. 12. Learned Advocate Mr.Gangal with the aforesaid details submitted that there has been a substantial delay on the part of the department in the matter of sending the sample to the Central Drug Laboratory, Calcutta and as a result of that the valuable right of the applicants was lost and that is how this Court should treat that the applicants were subjected to prejudice with reference to their right to have the sample tested from the Central Drug Laboratory, ( 9 ) Calcutta. 13. Learned Advocate Mr.Gangal had read to me the judgements mentioned above and had submitted that the High Courts have taken a consistent view that the right of an accused to have the sample tested by the Central Drug Laboratory as a paramount right and depriving the accused of such a right will have to be treated as subjecting the accused to the prejudice and once the accused shows that his right is taken away by the conduct of the department, the accused is entitled to acquittal / discharge as the case may be. 14. Learned Advocate Mr.Gangal had drawn my attention to the judgement of this Court in the case of M/s.Zim Laboratories, Bombay (supra) M/s.Zim Laboratories, Bombay (supra) M/s.Zim Laboratories, Bombay (supra) where the Court had observed that the certificate of Central Drug Laboratory supersedes the report of Government Analyst and is treated as conclusive. According to the learned Advocate Mr.Gangal if the sample would have been sent to the Central Drug Laboratory, Calcutta and if the said laboratory could have given its report, that report would have been of a great assistance to the applicants in the matter of trial and in the absence of such a report, the accused are entitled for a discharge as has been observed in the judgements which he had relied upon. Learned Advocate ( 10 ) Mr.Gangal, therefore, submitted that this aspect was not considered by the Court of J.M.F.C., Karad as well as the Court of learned 4th Additional Sessions Judge, Satara. 15. Learned Advocate Mr.Gangal drew my attention to the judgement delivered by the learned J.M.F.C., Karad and submitted that the judgement in the case of Ramanbhai (supra) Ramanbhai (supra) Ramanbhai (supra) was cited before the learned J.M.F.C., Karad. The learned J.M.F.C., Karad has not appreciated the same and has chosen to kept that judgement away by saying that the said judgement can be distinguished on facts. According to the learned Advocate Mr.Gangal, the view taken by the learned J.M.F.C., Karad was wrong and that the learned J.M.F.C., Karad ought to have applied the ratio in the case of Ramanbhai (supra) Ramanbhai (supra) Ramanbhai (supra) to the facts of this case and ought to have discharged the applicants. 16. Insofar as the judgement delivered by the learned Additional Sessions Judge, Satara is concerned, the learned Advocate Mr.Gangal submitted that it was the duty of the learned Additional Sessions Judge, Satara to verify as to whether the learned J.M.F.C., Karad has done its job correctly or not and that the learned Additional Sessions Judge, Satara at least ought to have appreciated the citing ( 11 ) of the judgement in the case of Ramanbhai (supra) Ramanbhai (supra) Ramanbhai (supra) before the learned J.M.F.C., Karad and ought to have decided the matter in favour of the applicants. Mr.Gangal, therefore, submitted that the Courts before whom the application for discharge was filed had erred in arriving at final conclusion and that the application filed by the applicants is required to be granted. 17. The learned A.P.P. appearing on behalf of the State Mr.Saste submitted that it may be that the report of Central Drug Laboratory, Calcutta was not available, however, the report of the State Laboratory was on record and that was considered by the learned J.M.F.C., Karad as well as by the learned Additional Sessions Judge, Satara and that is how the Courts below came to the conclusion that a prima facie case against the applicants is made out. Mr.Saste had, therefore, submitted that only because the Central Drug Laboratory, Calcutta gave a report that the drug cannot be tested as the expiry period had elapsed could not be a ground to discharge the applicants. Mr.Saste tried to justify the impugned orders. 18. After having considered the rival submissions and the judgements which were cited as mentioned above, I am inclined to observe that the applicants’ ( 12 ) application for discharge is required to be granted. The reasons are as under. 19. The law laid down by the High Court in the case of Ramanbhai (supra) Ramanbhai (supra) Ramanbhai (supra) was not appreciated by the learned J.M.F.C., Karad as well as by the learned Additional Sessions Judge, Satara. The point involved as regards deprivation of a valuable right of the applicants to have the sample tested by the Central Drug Laboratory, Calcutta has not been considered by the learned J.M.F.C., Karad as well as the learned 4th Additional Sessions Judge, Satara in the proper perspective and both the Courts rejected the application for discharge. It is true that a report of the State Laboratory was available and that the said report was against the applicants. The Courts below ought to have noted that the report of the Central Drug Laboratory would supersede the report of the Government Analyst and if the applicants were deprived of the said report on account of the delay on the part of the department, the valuable right of the applicants was lost and that is how the applicants were entitled for a discharge from the case. 20. Having gone through the judgement relied upon by the learned Advocate Mr.Gangal which are quoted above, I am inclined to accept the arguments advanced ( 13 ) by Mr.Gangal that the facts of this case falls within the parameters laid down by the judgements of this Court in the case of Ramanbhai (supra) as well as Ramanbhai (supra) as well as Ramanbhai (supra) as well as M/s.Zim Laboratories (supra). M/s.Zim Laboratories (supra). M/s.Zim Laboratories (supra). On the date when the raid was conducted, 3 months had elapsed with reference to the date of manufacture and the complaint came to be filed on 18.2.1995 i.e. practically after one and half year from the date of raid. As to why there was such a delay is nowhere explained and in any case, the fact remains that there was a delay and practically by the time complaint came to be filed, a period of 20 months had expired from the date of manufacture. The record shows that there was no delay on the part of the applicants in the matter of filing of application so as to request the Court to send the sample to the Central Drug Laboratory. This can be observed on the basis of the order passed by the learned J.M.F.C., Karad, who has stated that the application is filed within the mandatory period of 28 days. If this be so, there was readiness and willingness on the part of the applicants to submit to the procedure as is required under the provisions of the said Act and, therefore, there was no fault on the part of the applicants. But for delay on the part of the department, the applicants would have been in a position to have the samples tested by a laboratory whose report would supersede the report of the State ( 14 ) laboratory. There was every possibility that the said report would have been in favour of the applicants. In my view, the record clearly shows that there was a delay on the part of the department in attending to the matter which ultimately resulted in depriving the applicants of their valuable right to have the sample tested by the Central Drug Laboratory, Calcutta. This delay is fatal to the prosecution and to that extent the applicants have made out a case for discharge. 21. The two Courts below erred in not appreciating the facts in the proper perspective as well as the law laid down by this Court and were wrong in rejecting the application for discharge. 22. In view of the aforesaid discussion, the application for discharge is required to be allowed and the applicants will have to be acquitted and to that extent, this Revision application will have to be granted. For the reasons mentioned aforesaid, I pass the following order :- O R D E R O R D E R O R D E R i) Rule is made absolute. ii) Order passed by the learned J.M.F.C., ( 15 ) Karad dated 3.3.1998 below Exhibit-19 in the R.C.C. No.32 of 1995 is set aside. Similarly, the order dated 30.10.1999 passed by the learned 4th Additional Sessions Judge, Satara in C.R.A. No.111 of 1998 is set aside. The applicants are discharged from R.C.C.No.32 of 1995. Their bail bonds are cancelled. 23. Revision application stands disposed off in the above terms. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)