1. The present petition has been filed by the petitioner under section 482 Cr.P.C. for quashing of the criminal proceedings in a complaint under section 18(a)(i) of the Drugs and Cosmetics Act, 1940 (for short the Act), titled, Drug Inspector, Udhampur, Mumtaz Ahmed vs M/s N. K. Medical Hall and others pending before the learned Chief Judicial Magistrate, Udhampur (hereinafter to be referred as the trial court) as also the order dated 30.11.2017, whereby the learned trial court has taken cognizance and issued process against the petitioner.

2. The brief facts as they emanate from the complaint are that on 22.08.2016, the respondent-Sh. Vikram Singh Bhau, the then Drug Inspector, Udhampur during routine inspection at the premises of M/s N. K. Medical Hall, Sudha Memorial Complex, Hospital Road, Udhampur conducted detailed inspection. Thereafter, he expressed his intention to lift samples of drugs for test/analysis for Government Analyst and filled Form No. 17 in this regard and then lifted the samples of Aceclotide-SP Tablets (Batch No. T-1650) Mfg. date 01/2016, Exp. Date 12/2017 (quantity 1x4x5x10 Tablets), manufactured by M/s PDC Healthcare, petitioner herein. Thereafter, the Drug Inspector further divided the drugs so lifted as samples into four portions each and sealed and one portion of drug in question was sent to the Government Analyst, Udhampur, Combined Food and Drugs laboratory for its test and analysis and in this regard, Form No. 18 was also filled by the then Drug Inspector. The test report dated 30.12.2016 received from the Government Analyst, CFDL, Udhampur under section 25(1) of the Act on Form No. 13, declared the drug in question as ‘Not of Standard Quality. It is further stated that after finding that the drug sample in question was not of standard quality, the respondent vide letter dated 31.12.2016 directed the M/s N. K. Medical Hall (supra) to disclose the source of the purchase of the drug along with relevant record. The respondent also furnished the copy of the test report of Government Analyst to M/s N. K. Medical Hall i.e. retailer. M/s N. K. Medical Hall, the retailer vide letter dated 07.01.2017 stated that the drugs in question have been purchased by him from M/s Kailash Agencies, Amar Market, Raghunath Bazar, Jammu vide invoice No. 3995 dated 17.06.2016 and invoice No. 7797 dated 01.09.2016. Copy of the report of the Government Analyst along with sealed sample portion was handed over to M/s Kailash Agencies and it was directed to furnish the name of the manufacturer from whom the drugs in question have been purchased. M/s Kailash Agencies vide letter dated 19.01.2017 stated that the drugs in question were purchased from the petitioner vide invoice No. 00629 dated 24.02.2016. During the course of investigation, it was found that the drugs in question were lying in the premises of M/s M. K. Medical Hall which were further seized by the complainant/respondent on 31.12.2016 and the copy of the Form No. 16which was filled in this regard was also handed over to M/s N. K. Medical Hall in presence of the witnesses. Thereafter, vide letter dated 21.01.2017 along with reminder dated 02.03.2017, the complainant respondent herein, asked the petitioner to produce the total quantity of drugs in question manufactured along with three number of copies of the batch manufacturing record, total quantity of the said drugs lying in the stock and three copies of the statement of sale giving the name of dealers but no reply was received within a statutory period of 28 days, as provided under section 25(3) of the Act.

3. It is further stated in the complaint that vide letter dated 09.08.2017 the petitioner replied that it was not satisfied with the report of the Government Analyst, CFDL, Udhampur and stated that it will challenge the same. Vide letter dated 1.08.2017 and letter dated 09.09.2017, the respondent duly informed the Assistant Controller Drugs, Udhampur/ Reasi/ Ramban about the whole investigation and further requested for prosecution permission from the Controlling Authority in the said case. Thereafter, from the office of the Controller Drugs and Food Control Organization, J&K vide letter dated 27.09.2017, sanction/prosecution permission was granted in favour of the respondent to proceed further in the matter as per the procedure of the Act and thereafter, the impugned complaint was filed before the learned Chief Judicial Magistrate, Udhampur on 28.11.2017 and in the said complaint, prayer was also made to get the sample re-tested/reanalyzed, for which the said drugs may kindly be sent to the Central Drug Laboratory, Kolkata as provided under section 25(4) of the Act.

4. The learned trial court after the filing of the complaint vide order dated 30.11.2017 took the cognizance of the matter and issued the process against the petitioner and other accused.

5. The petitioner has sought quashing of the criminal proceedings on the ground that the petitioner’s right of retesting of drugs in question has been violated as it is settled law that the complaint under the Act is liable to be dismissed in case statutory right of adducing evidence (reanalysis) under section 25 of the Act is denied to the prejudice of a person who has shown his intention to disagree with the report of the analyst and asked for re-examination under section 25(3) of the Act. It is further averred that the learned trial court while taking cognizance and issuing summons, disregarded the statutory provisions by ignoring the prayer made by none other than the respondent-complainant to forward the sample to the CDL, Kolkata for its opinion. The another ground for quashing the complaint is that the complaint against the partners or directors does not lie in absence of specific averments against the partners whereas the complainant has failed to establish the extent of liability or their specific role against any person/partners in terms of section 34 of the Act.

6. Mr. Varut Kumar Gupta, learned counsel for the petitioner has reiterated the grounds those have been taken in the main petition.

7. On the contrary, Mr. H. A. Siddiqui, Sr. AAG has vehemently argued that the complaint in question has been filed after due compliance with the provisions of the Act, as such, the present proceedings cannot be quashed.

8. Heard learned counsel for the parties.

9. Before appreciating the rival contention of the parties, it would be appropriate to extract the relevant part of the sections Nos. 23 and 25 of the Act and the same are reproduced as under:

“23 Procedure of Inspectors.

(1)…………

(2)………..

(3)…………

(4) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows:—

(i) one portion or container he shall forthwith send to the Government Analyst for test or analysis;

(ii) the second he shall produce to the Court before which proceedings, if any, are instituted in respect of the drug [or cosmetic]; and

iii) the third, where taken, he shall send to the person, if any, whose name, address and other particulars have been disclosed under section 18A.]

(5)…………..

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 18A], 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 18A] 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 subsection (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 sample 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.

(5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4)shall be paid by the complainant or accused as the Court shall direct.”

10. A perusal of section 23(4) of the Act reveals that the Inspector shall send the third sample to the person, if any, whose name, address and other particulars have been disclosed under section 18-A of the Act. Further section 25(3) of the Act provides for that any document purporting to be a report signed by the Government Analyst shall be the evidence of the fact stated therein unless the person from whom the sample was taken or the person whose particulars have been disclosed under section 18-A of the Act, has within 28 days of the report receipt the copy of the report, notifies in writing the inspector or the court where any proceedings in respect of the samples are pending that he intends to adduce evidence in controversion of the report. Further section 25(4) of the Act obliges the Magistrate on the request of the complainant or the accused or on his own motion to send the sample produced before the Magistrate under section 23 (4) of the Act for fresh testing to the Director of the Central Drugs Laboratory.

11. Now coming to the facts of the instant case, it is evident from the record that no sample as envisaged by section 23 (4) (iii) of the Act has been sent to the petitioner as there is no reference of sending the sample in the letter dated 21.01.2017 by virtue of which the report of Government Analyst was sent to the petitioner and also there is no reference of sending the samples in reminder dated 02.03.2017. The petitioner was under legal obligation to respond to the said letter within 28 days demonstrating its intention to adduce evidence in controvention of the report but instead, the petitioner vide letter dated 09.08.2017 contested the test report and the respondent conceded his request in the complaint and in response thereof a prayer was made in the complaint itself filed before the trial court that the sample be duly re-tested/re-analysed and for that purpose the samples may be sent to the Central Drugs Laboratory Kolkata. The learned trial court, while taking cognizance, has not bothered to consider the said prayer and took the cognizance of the offence on 30.11.2017 whereas the shelf life of the drugs were going to expire on 12/2017, thus, the petitioner has been deprived of his valuable right of retesting under sections 25(3) and 25(4) of the Act. Reliance is placed upon the judgment of the Apex Court in Laborate Pharmaceuticals India Limited and others v State of Tamil Nadu, 2017 AIR (SC) 2423 and the relevant paragraph Nos. 6 to 8 are reproduced as under:

“6. A reading of the provisions of Sections 23(4) and 25 of the Act would indicate that in the present case the sample having been taken from the premises of the retailer had to be divided into four portions; one portion is required to be given to the retailer; one portion is required to be sent to the Government Analyst and one to the court and the last one to the manufacturer whose name, particulars, etc. is disclosed under Section 18-A of the Act. In the present case, admittedly, one part of the sample that was required to be sent to the appellant (manufacturer) under Section 23(4)(iii) of the Act was not sent. Instead, what was sent on 22-3-2012 was only the report of the Government Analyst. When the part of the sample was not sent to the manufacturer, the manufacturer could not have got the same analysed even if he wanted to do so and, therefore, it was not in a position to contest the findings of the Government Analyst. In the present case, the sample was sent to the appellant manufacturer on 10-8-2012 and on 13-9-2012 the appellant had indicated its desire to have another part of the sample sent to the Central Laboratory for reanalysis. This was refused on the ground that the aforesaid request was made much after the stipulated period of 28 days provided for in Section 25(3) of the Act.

7. The cognizance of the offence(s) alleged in the present case was taken on 4-3-2015 though it appears that the complaint itself was filed on 28-11-2012. According to the appellant the cough syrup had lost shelf life in the month of November 2012 itself. Even otherwise, it is reasonably certain that on the date when cognizance was taken, the shelf life of the drug in question had expired. The Magistrate, therefore, could not have sent the sample for reanalysis by the Central Laboratory.

8. All the aforesaid facts would go to show that the valuable right of the appellant to have the sample analysed in the Central Laboratory has been denied by a series of defaults committed by the prosecution; firstly, in not sending to the appellant manufacturer part of the sample as required under Section 23(4)(iii) of the Act; and secondly, on the part of the Court in taking cognizance of the complaint on 4-3-2015 though the same was filed on 28-11-2012. The delay on both counts is not attributable to the appellants and, therefore, the consequences thereof cannot work adversely to the interest of the appellants. As the valuable right of the accused for reanalysis vested under the Act appears to have been violated and having regard to the possible shelf life of the drug we are of the view that as on date the prosecution, if allowed to continue, would be a lame prosecution.”

12. More so, the instant complaint was filed on 30.11.2017 and admittedly the shelf life of the drugs in question was having expiry as 12/2017 and within short period it would have been impossible to get the sample retested before its expiry. In an identical situation when the complaint was filed on 02.07.2002 and shelf life was having expiry of 08/2002, the Hon’ble Apex Court in Medicamen Biotech Ltd. v Drug Inspector, (2008) 7 SCC 196 has held:

“18. ..........It is also clear that the complaint had been filed on 2-7-2002 which is about a month short of the expiry date of the drug and as such had the appellantaccused appeared before the Magistrate even on 2-7- 2002 it would have been well-nigh impossible to get the sample tested before its expiry.

19. In the affidavit filed to the petition by Dr. D. Rao, Deputy Drugs Controller, and in arguments before us, it has been repeatedly stressed that the delay in sending of the sample to the Central Drugs Laboratory had occurred as the appellant had avoided service of summons on it till 9-5-2005. This is begging the question. We find that there is no explanation as to why the complaint itself had been filed about a month before the expiry of the shelf life of the drug and concededly the filing of the complaint had nothing to do with the appearance of the accused in response to the notices which were to be issued by the Court after the complaint had been filed. Likewise, we observe that the requests for retesting of the drug had been made by the appellant in August/September 2001 as would be clear from the facts already given above and there is absolutely no reason as to why the complaint could not have been filed earlier and the fourth sample sent for retesting well within time. We are, therefore, of the opinion that the facts of the case suggest that the appellants have been deprived of a valuable right under Sections 25(3) and 25(4) of the Act which must necessitate the quashing of the proceedings against them.”

13. So in the instant case, the statutory right of the petitioner for retesting the drugs in question under sections 25(3) and 25(4) of the Act has been violated by the respondent and the learned trial court has also proceeded in utter disregard of section 25(4) of the Act.

14. So it is evident that the petitioner has been deprived of valuable right under section 25(3) and 25(4) of the Act, and as such, this Court has no other option but to quash the proceedings and as such, criminal proceedings in complaint under section 18(a)(i) of the Act titled, Drug Inspector, Udhampur, Mumtaz Ahmed vs M/s N. K. Medical Hall and others pending before the learned Chief Judicial Magistrate, Udhampur as also the order dated 30.11.2017 whereby the learned trial court has taken cognizan

ce and issued process against the petitioner, are quashed. 15. Before parting, this Court would like to observe that there has been lapses on the part of the respondent in filing the complaint. It is not understandable as to when the sanction for filing the complaint was granted to the respondent by the Controller, Drug and Food Control Organization, J&K, Srinagar on 27.09.2017, then why the concerned Drug Inspector slept over the matter and did not proceed to file the complaint earlier and the complaint was filed only on 28.11.2017 whereas the shelf life of the drugs in question was expiring on 12/2017 and within such short possible time, it was not possible for the retesting the sample as well. It seems either the respondent was hands in gloves with the petitioner or the concerned respondent was ignorant of the provisions of the Act. 16. This Court has come across numerous such matters in which complaints under the Act are filed just before the expiry of the shelf life of the drugs or the complaint has been filed against the directors/partners without specifying their role. The Controller, Drug and Food Control Organization is required to impart training to Inspectors with regard to the compliance of procedure for initiating proceedings under the Act against the violators. Either because of connivance of the concerned drugs Inspectors with the violators or because of lack of knowledge of the procedure prescribed under the Act, many complaints are being quashed at the very initial stage for violation of mandatory procedure. It is expected that the Controller, Drug and Food Control Organization J and K would take corrective steps so as to ensure that the procedure prescribed under the Act is duly complied with while launching prosecutions in future. 17. Registry is directed to send a copy of this judgment Controller, Drug and Food Control Organization, Jammu and Kashmir for follow up action.