IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.295 of 2009 M/S GROWMED PHARMACEUTICALS ON ITS INCORPROATION UNDER THE INDIAN COMPANIES ACT, 1956 , NOW BEING KNOWN AS M/s GUJARAT GROWMED MARKETING INDIA PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT BISCOMAN COLONY, SANDALPUR ROAD, WEST M.G.S. ROAD, NORTH OF KUMHARAR GUMTI, GULJARBAGH, PATNA-800 007 AND ENGAGED IN THE MANUFACTURING OF MEDICINES AND OILS BEING REPRESENTED THROUGH ZONAL SALES MANAGER (AUTHORIZED TO REPRSENT THE COMPNAY) BIRENDRA PRASAD SINGH AGED 40 YEARS S/O LATE SIYA RAM SINGH, RESIDING AT BEGUM KI HAWELI, KHAJEKLAN, POLICE STATION-KHAJE KLAN, PATNA CITY, BIHAR ……………PETITIONER Versus 1. STATE OF BIHAR REPRESENTED THROUGH THE PRINCIPAL SECRETARY, HEALTH AND SERVICES, BIHAR, PATNA 2. THE DRUG CONTROLLER, BIHAR, PATNA 3. DRUG INSPECTOR, AURANGABAD, BIHAR ………….OPPOSITE PARTY ----------- For the Petitioner : Mr.Shivaji Pandey, Sr.Advocate M/s Avinash Kumar, Ajit Kumar For the State :Mr.R.S.Singh, AC to A.A.G.6 8 9.8.2010 The petitioner seeks quashing of the entire criminal prosecution including order taking cognizance, dated 15.1.2002 passed by the Chief Judicial Magistrate, Aurangabad under section 18(a)(1) of the Drugs and Cosmetics Act, 1940(hereinafter referred to as „the Act,1940”) in Complaint Case bearing G.O.No.267 of 2001 filed against the petitioner and others by Smt. Kamala Kumari, Drug Inspector, Aurangabad. The petitioner is a Company engaged in manufacture of medicines and oils. On 14.7.1999, the then Drug Inspector, Aurangabad inspected the medicine shop, namely M/s Magadh Medical Hall, Barun, Aurangabad. He took samples of A.D.Vitamin Baby oil, expiring dated being January, 2001 along with other medicines for the purpose of test/analysis in Form 17. 2 The chemical examination report of Government Analyst, C.I.P.L., Ghaziabad dated 29.12.2000 showed that the substance was of standard quality. However, the Government Analyst sent a corrigendum on 20.2.2001 stating that the seized A.D.Vitamin Baby Oil was not of standard quality and on that basis the instant prosecution has been launched against the petitioner and others. The first report dated 29.12.2000 is contained in Annexure-4 and the second report dated 20.2.2001 is contained in Annexure-5. The petitioner submits that the respondents utterly failed in complying with section 23(3) and (4) of the Act, 1940 and as such the cognizance is bad. He further submits that admittedly the second report, which indicted the quality of seized A.D.Vitamin Baby Oil was received beyond the expiry date and as such the valuable right of the petitioner to challenge the same was lost. According to him, the quality of an item can be guaranteed only up to the expiry period and no one can vouch the sustainability and its standard beyond expiry period. In support of his submission, he relied upon a decision of the Apex Court in the case of M/s Medicamen Biotech Ltd. & anr Vs Rubina Bose, Drug Inspector, reported in A.I.R. 2008 SC 1939. Learned State counsel submits that by mistake the first report dated 29.12.2000 stated that items seized was of standard quality and accordingly corrigendum was issued on 20.2.2001. He submits that the report is just and proper and the petitioner can take all these points at the time of trial. 3 From the pleadings of the parties, the following facts stand admitted. The sample was taken on 14.7.1999 and its expiry date was January, 2001. The first chemical report, dated 29.12.2000 of Government Analyst, C.I.P.L. Ghaziabad confirmed it to be of standard quality. However, a corrigendum was issued on 20.2.2001 by the Government Analyst that in fact the material was of sub-standard, and on account of bonafide mistake it was stated earlier on 29.12.2000 that the same was of standard quality. As the second report indicting the quality of seized A.D.Vitamin Baby oils was received beyond the period of expiry, the right of the petitioner to challenge the same was lost. The Apex Court in the case of M/s Medicamen Biotech Ltd. (supra), also under the Drugs and Cosmetics Act, held that as the test report of the sample was given belatedly and very close to the expiry date, the valuable right of the petitioner to challenge the same is lost. The case of the petitioner is better in the sense that the second test report which had cast doubt on the standard of the seized items was received much beyond the expiry period. Further more, the impugned order taking cognizance is also not sustainable as there has been violation of section 23(3) and (4) of the Act, 1940 which is quoted herein below: “23(3) Where an Inspector takes a sample of a drug (or cosmetic) for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he willfully absents himself, shall divide the sample 4 into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked: Provided that where the sample is taken from premises whereon the drug (or cosmetic) is being manufactured, it shall be necessary to divide the sample into three portions only: Provided further that where the drug (or cosmetic) is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug (or cosmetic) be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same and, where necessary sealing them”. Section 23(4) states that in case the sample is taken from the premises of the manufacturer, the same would be divided into only three parts, otherwise the same would be divided into four parts. The provisions thus enjoins upon the respondents to remit a sample of the seized items to the person from whose premises it is collected as well as to the manufacturer and to the court concerned beside tendering a sample for being sent to the Analyst for chemical examination. It would appear from the counter affidavit that the sample along with Form 13 was sent to the manufacturer in April 2001 after three months of its expiry, which denies the right of the manufacturer to challenge the authenticity of the sample. In this respect, reliance can be further based in the case of Core Health 5 KHAN Care Ltd., Ahmadabad Vs State of Bihar & Ors, reported in 2000(2) P.L.J.R. 324, particularly paragraph 18 which reads as under: “18. Therefore it is incumbent upon the Inspector while purporting to carry on inspection, test and analysis of the drug in question, to send a notice either to the petitioner Company or to its agent mentioned in paragraph 5 and also to send a sample of the same. A report has also to be sent to either the petitioner Company or its Agent mentioned in paragraph 5 of the writ petition. Admittedly the said procedure has not been followed. Therefore, the entire procedure relating to seizure and analysis and test of the drugs in question have been made in a manner which is not contemplated in law”. For the reasons stated above, the impugned order taking cognizance dated 15.1.2002 and the criminal prosecution against the petitioner are quashed. In the result, this writ application is allowed. (S.P.Singh,J)