IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 04.11.2011 Coram THE HONOURABLE MS.JUSTICE K.B.K.VASUKI CRIMINAL APPEAL No.1114 of 2001 State by Drugs Inspector Intelligence Wing, O/o. The Director of Drugs Control, Chennai - 6. represented by Public Prosecutor, High Court, Madras. ... Appellant -Vs.- 1. M/s. Asher Pharmaceuticals Private Limited, C-25, SIDCO Pharmaceuticals Complex, Alathur, Thiruporur. Through : Magendira B.Jain, Managing Director. 2. Magendira B.Jain 3. Rajesh B.Jain ... Respondents Appeal against the judgment of acquittal dated 22.06.2001 made in C.C.No.5026 of 1995 on the file of the X Metropolitan Magistrate, Egmore, Chennai. For Appellant : Mr.C.Balasubramanian Additional Public Prosecutor For Respondents : M/s.P.Ramesh Kumar ------- J U D G M E N T The appeal is filed by the complainant / State represented by Drugs Inspector, Intelligence Wing, Chennai, against the order of acquittal of the respondents / accused 1 to 3 from the charges constituting the offences punishable under Sections 18(a)(1) r/w.27 (d), 18(a)(1) r/w.17(A)(a) r/w.27(b)(1) of Drugs and Cosmetics Act. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution is that PW.1 and PW.2 are the Drug Inspectors attached to the Intelligence Wing of Directorate of Drugs Control and on information, they inspected Kasthuri Bai Gandhi Government Women and Children Hospital at Triplicane, Chennai on 27.07.1994 and found Cotrimoxazole Pediatric Suspension with foul smell and on due verification, it was found out that the same was manufactured by M/s.Asher Pharmaceuticals Private Limited and purchased from M/s.Eureka Pharma. PW.1 and PW.2 in the course of their surprise visit to M/s.Asher Pharmaceuticals Private Limited and its manufacturing unit found out that the same was of inferior quality and was manufactured without using raw materials and the same was also found to be adulterated and thereby the complaint is filed against the manufacturer - cum - dealer for the offences under Sections 18(a)(1) r/w. 27(d), 18(a)(1) r/w. 17(A)(a) r/w.27(b)(1) of Drugs and Cosmetics Act, 1040. 3. The prosecution in order to prove the guilt of the accused examined the Drug Inspectors and Drug Keeper at Drug Store in the hospital and the staff attached to the hospital, the owner of M/s.Eureka Pharma and seizure witnesses as PW.1 to PW.6 and produced the gazette publication for appointing PW.1 and PW.2 as Drug Inspectors, Form 17 and Form 18, acknowledgment for receipt of the sample by the Government Analyst, report of the Analyst, Certificate issued by the Government Analyst and the communication sent to the Government Hospital, M/s.Eureka Pharma and the invoices, in which the drug was purchased, the reply issued by the owner of M/s.Eureka Pharma, invoice of M/s.Asher Pharmaceuticals Private Limited for selling the same to M/s.Eureka Pharma, show cause notice issued to M/s.Eureka Pharma, reply received from the same and the communication sent by A1, A3 (different officials), Register and delivery challan and search list relating to A1 Company, communications between the officials and the Government Hospital, M/s.Eureka Pharma and M/s. Asher Pharmaceuticals Private Limited, sanction for prosecution and other documents as Exs.P1 to P53, besides the sample bottles and the remaining bottles drawn and seized from the Government Hospital as M.O.1 and M.O.2. 4. The trial Court on the basis of the available records found that the samples are not drawn in accordance with the procedure laid down under Section 23 and the copy of the Government Analyst report was not delivered to the person from whom the sample was taken, as contemplated under Section 23 and the Analyst report was not duly sent in the prescribed form as contemplated under Rule 6 of the Drugs and Cosmetics Rules and arrived at a conclusion that the violation of the procedure laid down and the relevant provision of law as referred to vitiated the entire proceedings and acquitted the accused. Hence, this appeal by the complainant / State before this Court. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned Government Advocate (Crl. Side) has sought to question the finding of acquittal recorded by the trial Court on the basis of the oral and documentary evidence adduced before the trial Court. But the learned Government Advocate (Crl. Side) is not able to deny the findings of the trial Court regarding the manner in which the samples were drawn and the failure of the Drugs Inspectors to send the copy to the person, from whom the sample was drawn and the failure of the Government Analyst to send the report in the prescribed form to the Inspector, all in violation of the mandatory provisions as above referred to. 6. It is well settled law that when specific procedure is laid down under any Special Act, the violation of the same will result in greater prejudice to the accused and would render the entire prosecution vitiated. Here, the relevant provisions of law under Section 25 of the Act reveals that the report signed by the Government Analyst shall be, as per Section 25(3)of the Act, evidences of the facts stated therein, and such evidence shall be conclusive in nature. However, the person from whom the sample was taken or any other person whose name, address and other particulars have been disclosed under Section 18(A)of the Act intends to adduce evidence in contravention of the report has the right to send the same to the Central Drugs Laboratory to be tested and analysed in the Central Drugs Laboratory and as and when such report is available, the same prevails upon the Government Analyst report and shall be conclusive evidence of the facts stated therein. The relevant provisions of law under Section 25 of the Act further reveals that the person, from whom the sample was drawn, shall have originally no right of defence unless he, within 28 days of the receipt of copy of the Analyst report from the Inspector, notifies in writing his intention to adduce evidence in contravention of the report. Thus his right to adduce evidence before the Inspector or Court accrues only after the report of the Government Analyst is received by him and any failure on the part of the Drug Inspectors to send the copy of the Government Analyst Report will deprive the accused of his valuable right of defence. In this case, when admittedly the Analyst Report was not sent to the person concerned, the right of the accused to have it tested and analysed by the Central Drug Laboratory is lost to the accused and the same is in serious violation of the mandatory and statutory requirement and the same renders the entire prosecution to be illegal, ineffective and vitiated. That being the legal and factual position, the order of acquittal of the trial Court on the ground that the accused is deprived of his valuable right of defence, deserves no interference. https://hcservices.ecourts.gov.in/hcservices/ 7. In the result, the appeal stands dismissed. Sd/- Asst.Registrar // True Copy// Sub Asst.Registrar mra To 1 The X Metropolitan Magistrate, Egmore, Chennai. 2 The Chief Metropolitan Magistrate, Egmore, Chennai. 3. The Public Prosecutor, Madras. Crl.A.No.1114 of 2001 PA(CO) KP(08.11.2013) https://hcservices.ecourts.gov.in/hcservices/