Rakesh Kumar vs State of U.P. and Another

The instant revision has been filed against the order dated 22.07.2024 passed by learned Additional Sessions Judge, Court No. 1, Pilibhit in S.T. No. 381 of 2020, upon application under Section 245(2) Cr.P.C. arising out of Complaint Case No. 381 of 2020 (Original Case No. 6985 of 2016), under Section 17B/27 of Drugs and Cosmetics Act, 1940, Police Station Sungarhi, District Pilibhit by which the discharge application of the revisionist has been dismissed.

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Learned counsel for the revisionist has submitted that the company is a registered company and also have license to manufacture the medicines. As per Section 25 of the Act, it is provided that once the sample found "not of standard" or otherwise does not pass the test of the Government Analyst, then the Drugs Inspector shall send report of the sample to the manufacturer asking him, whether he desired to say anything for sending the sample for retesting and if the, manufacturer request for retesting the sample same may be sent for retesting to CDL Kolkata. Learned counsel for the revisionist has further submitted that, even from perusal of the entire complaint false allegations have been levelled against the revisionist, therefore, he cannot be prosecuted. Revisionist is not among responsible person of the company and an employee of the company cannot be prosecuted, unless any specific allegation is levelled. Since no allegation is levelled against the revisionist hence, he cannot be prosecuted, even from perusal of the entire complaint. Learned counsel for the revisionist has next submitted that incident took place in Pilibhit, but the complaint was filed in Bareilly. Further the

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complaint was filed before Special Judge, Drugs and Cosmetic Act, who is Sessions Judge and was not competent to take cognizance directly, as per provision of Section 197 of Cr.P.C. Therefore, summoning order is without jurisdiction hence, illegal. Learned counsel for the revisionist has further submitted that, from perusal of the entire complaint it can be seen that, there is no allegation against the revisionist and in these circumstances, the revisionist cannot be summoned. Once there is no allegation against the revisionist, then the director or any employee cannot be made accused, therefore, the order of summoning is illegal and without jurisdiction, therefore, revisionist is liable to be discharged from offence and he prayed that the present revision is liable to be allowed. Learned counsel for the revisionist has also relied upon the judgment of Hon'ble Apex Court in the case of Union of India Vs. Ashok Kumar Sharma and Others reported in AIR 2020 SC 5274 the said case cited by the revisionist does not help, as the said case deals with the powers of Police Officers viz a viz the powers of Inspector appointed under Drugs and Cosmetics Act.

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Per contra, learned A.G.A. appearing for the State has submitted that the order passed by the learned Additional Sessions Judge, Pilibhit is legal and not arbitrary and the same has been passed in accordance with the procedure and law. The learned Additional Sessions Judge, Pilibhit, while passing the order under challenge has considered the material on record. The plea of the revisionist is that Section 25 has not been complied with, which is totally false and baseless, as much as, the revisionist submitted his representation dated 13.01.2016 in respect of show cause notice issued by the competent authority dated 28.12.2015. Thereafter competent authority vide reminder show cause notice dated 28.01.2016 informed the revisionist regarding the sample, which was analyzed by the Government Analyst, Lucknow and stated therein that, if the revisionist intend to file any representation, he can to do so within the stipulated period, but no detailed reply was ever received from the revisionist and the revisionist barely submitted a letter dated 13.01.2016 just denying the failure of sample. Learned A.G.A. has next submitted that revisionist in his reply dated 13.01.2016 stated that other samples have been declared to be of a standard quality by the Government Analyst, Lucknow and the revisionist shall submit the said test reports of samples in due course, but thereafter, no such report were ever submitted by the revisionist and, therefore, the competent authority proceeded further in accordance with law.

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Having regard to the rival contentions made by learned counsel for the parties and perusal of record Section 25 of Drugs and Cosmetic Act, 1940 as amended from time to time is reads as under:-

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"Reports of Government Analysts.—(1) The Government Analyst to whom a sample of any drug 1[or cosmetic] has been submitted for test or analysis under subsection (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.

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(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken 4[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.

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(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 5[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.

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(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (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 1[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.

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

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The plea of the revisionist is that, no reasonable and adequate opportunity was given to him for adducing evidence in his support, cannot be found convincing, as as the Competent Authority vide notice dated 28.12.2015 informed the report in writing that, if the revisionist intends to submit anything in his defence or adduce evidence therein, then the same shall be considered in accordance with law. In response to the said show cause notice dated 28.12.2015 stating therein that, the revisionist shall submit other reports in sample of commodity have been found correct and valid. However, the revisionist failed to do so and thereafter opportunity vide letter dated 28.01.2016 was afforded to the revisionist to submit evidence or documents whatsoever supporting his case and to substantiate the fact that the other samples collected from his premises were in order, to the revisionist failed to do so as required under Section 25(3) of the said Act,

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thereafter the Competent Authority was at liberty to proceed in the matter, as provided in Section 25(4) of the Drugs and Cosmetics Act, hence, despite the fact that revisionist was afforded adequate reasonable and ample opportunities, to defend his case or adduce any evidence as provided under law, but he failed to do so, thereafter the Competent Authority have proceeded in accordance with law. The plea of the revisionist that he is the chemist in the company and not a director, whereas the director is responsible to conduct the affairs of the business of the company, is not tenable, since, it is the chemist, who is the best and appropriate person to examine and analyze the quality of product, and once the quality of the product is in order, then everything would be put in order. Hence, the chemist of the company is more responsible in checking, examining and analyzing the product of the company, therefore, has to held accountable, if any sample of the drugs goes wrong or deviates from the normal standards of quality.

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Having regard to the above facts, no infirmity is found in the order dated 22.07.2024 passed by learned Additional Sessions Judge, Court No. 1, Pilibhit.

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The present revision is devoid of merit and is accordingly dismissed .

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October 9, 2025 Vikram

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(Harvir Singh,J.)

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Digitally signed by :- VIKRAM SINGH High Court of Judicature at Allahabad

Rakesh Kumar v. State of U.P. and Another

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Rakesh Kumar v. State of U.P. and Another

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