Dismissed

Pradeep Kumar Tandon Alias Pradeep Tandon v. the State of Jharkhand

Jharkhand HC6 Oct 2023Cr.M.P./740/2020

Case brief

AI extract

What is this about?

The High Court held that inordinate delay in sample dispatch did not justify quashing criminal proceedings where analysis was completed before drug expiry. Since the Central Drugs Laboratory tested the sample initially, the statutory provision for re-testing by CDL if a Government Analyst first examined the sample was not applicable.

What did the court decide?

Criminal miscellaneous petition dismissed as no infirmity found in impugned order.

Pradeep Kumar Tandon Alias Pradeep Tandon Vs the State of… — Quashing and FIR | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 3028 of 2022

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------ Kunj Bihari Goyal .... .... …. Petitioner Versus The State of Jharkhand .... .... .... Opp. Party

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WITH Cr.M.P. No. 740 of 2020 ------

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Pradeep Kumar Tandon @ Pradeep Tandon

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.... .... …. Petitioner

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Versus

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State of Jharkhand .... .... .... Opp. Party

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioners : Mr. Rakesh Kumar Singh, Advocate (In Cr.M.P. No.3028 of 2022) Mr. Rajesh Kumar, Advocate Mr. Amit Kumar, Advocate Mr. Maninder Kumar Sinha, Advocate (In Cr.M.P. No.740 of 2020) For the State : Mr. Vineet Kumar Vashistha, Special P.P. (In Cr.M.P. No.3028 of 2022) Mr. Shiv Shankar Kumar, A.P.P. (In Cr.M.P. No.740 of 2020)

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------

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Order No.08 Dated : 06.10.2023

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These criminal miscellaneous petitions arise out of Drug and Cosmetic Case No.187 of 2010, as such, both are being heard together and shall be disposed of by this common order.

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Both the cases are for quashing of the order taking cognizance as well as the entire criminal proceeding taken under Section 27 (d) of Drug and Cosmetic Act, 1940 (for short D.C. Act) for contravention of Section 18(a)(i)(vi), 18 (b) of D.C Act .

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The petitioner in Cr.M.P. No.740 of 2020 is the Manufacturer and in Cr.M.P. No.3028 of 2022 is the Distributor of eye ointment being sold in the name of Chloramphenicol. The drug that was seized, on chemical examination was found to be of not of standard quality. The sample did not confirm to the I.P. with respect to test of “particle size”.

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Petitioners' case hinges on some bizarre delays in the process of dispatch of sample and its receipt by the Central Drugs Laboratory, Kolkata (for short CDL). The Drug Inspector collected samples of Chloramphenicol ointment cream from the State RCH office, Namkum and sent the samples as detailed therein for examination to the Central Drug Laboratory, Kolkata on

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13.03.2008 after seizure of the sample. The same was dispatched for analysis to Central Drug Laboratory, Kolkata on 29.09.2008 and it was received by Central Drug Laboratory on 13.07.2009 and the report of the analysis was received on 11.09.2009. The said drug was supplied by M/s J.R. Pharma to R.C.H and Petitioner Kunj Bihari Goyal is the proprietor of M/s J.R. Pharama.

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The first ground of challenge is that there is non-compliance of mandatory requirement of Rule 23(4)(i) Drugs and Cosmetics Act, 1940. 6. It is further argued that cognizance has been taken on 1^st May, 2010 i.e. the date after expiry of the drug. Because of the delay in taking cognizance, the petitioner was deprived of opportunity to move the learned Court below to send the sample for re-testing. It is further argued that sample of the drug was not provided to the manufacturer. Reliance is placed on Laborate Pharmaceuticals India Ltd. & Others Versus State of Tamil Nadu , (2018) 15 SCC 93 para 6. One portion of the sample was sent for chemical analysis to State R.C.H. Officer, Namkum, Ranchi vide office letter no.518 dated 08.11.2009 in compliance of Section 23(3)(iii) of Drugs and Cosmetics Act, 1940. This portion was sent to CDL, Kolkata after six months from the date of seizure on 29.09.2008 which was received by CDL lab, Kolkata and the sample was tested on 24.07.2009. Reliance is placed on (2008) 7 SCC 196 para 4, 5 & 9.

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Learned A.P.P. has defended the impugned order. It is submitted that the seizure was made on 13.03.2008 which was dispatched on 29.09.2008 and was received by CDL, Kolkata on 13.07.2009. As per the report, “the sample did not conform to IP with respect to the test for ‘Particle Size”. It is further submitted that the period for expiry of the said drug was December, 2009 whereas the test was conducted on 24.07.2009 , before the expiry of the said medicine. As there did not exist any Government Analyst in the State therefore, sample was directly sent for analysis to the Central Drug Laboratory Kolkata.

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For better appreciation following list of dates is set out on the basis of undisputed facts.

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a. 13.03.2008 — Drug samples collected.

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b. 29.09.2008—Sample dispatched for analysis to Central Drug Laboratory, Kolkata.

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c. 13.07.2009 — received by Central Drug Laboratory, Kolkata.

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d. 06.11.2009 — One portion of the sample was sent for chemical analysis to State R.C.H. Officer, Namkum, Ranchi vide office letter no.518 dated 11.09.2009—CDL report with a finding of the eye

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ointment to be sub-standard as the sample did not conform to IP with respect to the test for “ Particle size”.

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e. 10.11.2009— Manufacturer requests the re-testing of the sample by CDL Kolkata.

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f. 3.12.2009—Samples dispatched to CDL for re-testing on the request of the manufacturer M/s Anod Pharma Pvt. Ltd.

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g. 15.12.2009—CDL Kolkata refused to retest the sample and reiterates the finding in its earlier report.

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h. December 2009 and January 2010—Expiry date of drug.

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i. 29.04.2010—Cognizance is taken which is quashed in Cr.M.P. No.1112/2019 and the learned Court below is directed to pass cognizance order afresh.

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j. 29.01.2020—Cognizance is taken, which is under challenge in the instant petition.

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Mandate of law under Section 23 of D.C. Act is clear and unambiguous. It requires sampling of the drugs into four parts and one portion is required to be given to the retailer; one to be sent to the Government Analyst, one to the Court and the last one to the manufacturer whose name, particulars, etc. is disclosed under Section 18-A of the Act. Further, under Section 25, a copy of the report of the drug analysis is to be given to the parties concerned from whom sample has been taken. Right of the Party from whom the sample is taken or the one whose name appears as under Section 18-A, for getting in retested is unequivocal, u nless the sample has already been tested or analysed in the Central Drugs Laboratory. Report shall be conclusive evidence of the facts stated therein. It has been held in Glaxosmithkline Pharmaceuticals Ltd. & Another v. State of M.P. , (2011) 13 SCC 72

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7. We have heard the learned counsel for the parties and perused the records. The issue involved herein is no more res integra. The issue has been examined time and again. It is a settled legal proposition that the report of the analyst is conclusive. It means that no reasons are needed in support of conclusion given in the report, nor is it required that the report should contain the mode or particulars of the analysis.

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10 . From the above, it is apparent that after receiving the report of the Goverenment analyst, accused has a right of getting the sample tested by Central Drugs Laboratory. This requirement shall not apply logically and practically to those cases where the drug has been tested by the CDL in the very first instance, which is precisely the case at hand. Jharkhand having no facility of drug testing by Government analyst, sample was sent directly to the CDL which gave report that the drug was of sub-standard quality. Therefore, there was no requirement of re-testing, and so when the sample was again sent

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for testing, request for re-testing was turned down by CDL. There was no illegality to refuse the request for re-testing, as there is no such provision for re-testing by CDL, when it had already done the test and submitted its report. The provision of re-testing applies specifically to cases where the same has been done by Government Analyst at the first instance and then request is received for its re-testing by CDL.

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11 . Provision for re-testing under Section 25 (4) arises when after the receipt of the report of the Government Analyst, the person from whom the sample is taken or the one whose name appears under Section 18 A intends to controvert the evidence of analysts report. In the present case, as the report of analysis was by the CDL, Section 25(3) for re-testing shall have no application, as the same is expressly barred under Section 25 (4). What has been laid down by judicial precedents including Medipol Pharmaceutical (India) (P) Ltd. v. Post Graduate Institute of Medical Education & Research & Another , (2021) 11 SCC 339 is that there is a valuable right of the accused to get the samples of drugs is to get the sample analyzed, but it nowhere said that once the said sample has been tested by CDL the same need to reexamined by it. It has been held in Ram Shankar Misra v. State of U.P. , (1980) 1 SCC 255 : 1980 SCC (Cri) 217 at page 257 4.

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The mode prescribed under Section 25(4) is one method of sending it to the Director of the Central Drugs Laboratory. The other method is by the Drugs Inspector sending it direct as contemplated under the first part of Section 25(1). It is significant that sub-section (4) starts with the words “unless sample has been tested or analysed in the Central Drugs Laboratory”. These words clearly indicate that apart from the mode prescribed in Section 25(4), the sample can be sent for analysis to the Central Drugs Laboratory. (emphasis supplied)

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12 . Admittedly, there had been unexplained inordinate delay in dispatch of the samples and receipt of it at the CDL. It took almost six months from collection of sample to its dispatch and then about 10 months after its dispatch to reach CDL. After the said receipt of sample, analysis was completed and by CDL the report was sent in two months.

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13 . This Court is of the view that mere delay in the process of dispatch cannot be a ground for quashing the cognizance, unless it has occasioned in prejudice to the accused or there is reasonable ground to infer that it had resulted in the deterioration of the quality of the drug.

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In the present case the samples were tested by the Central Drugs Laboratory before the expiry of the shelf-life. As discussed above, since the

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sample was tested by CDL in the first instance, therefore it cannot be contended that because of the delay in taking cognizance, petitioners could not send the sample for re-testing to the CDL.

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Facts of the present case is different from Laborate Pharmaceuticals India Ltd. & Others (supra), where sample was sent for analysis by the Government Analyst and in view of the inconsistency between its report with the report from the private laboratory, petitioner moved the court for re-testing of the sample by CDL. The said request was refused on the ground that under Section 25 (3) the manufacturer was required to exercise the aforesaid option within 28 days from the date of receipt of the sample. Against this factual background it was held,

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6. 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.

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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.

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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.

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(Emphasis supplied)

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With regard to the plea of deterioration in sample quality of the drugs

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seized for not being stored in proper conditions, no such inference can be drawn regarding poor storage conditions unless there is some materials on record in support of it. This is an issue which the petitioners’ will be at liberty to raise at the stage of trial by leading evidence in the point.

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Under the aforesaid facts and circumstance of the case and for the reasons discussed above, this Court is of the view that admittedly there had been delay in dispatch of the sample and its receipt by CDL, but this did not cause any prejudice to the petitioners and since the samples were tested before the expiry of the drugs, therefore, it cannot be said to have impacted report of the analysis.

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This Court does not find any infirmity in the impugned order. Criminal miscellaneous petition accordingly stands dismissed.

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(Gautam Kumar Choudhary, J . )

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Sandeep/Anit

Pradeep Kumar Tandon Alias Pradeep Tandon v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Pradeep Kumar Tandon Alias Pradeep Tandon v. the State of Jharkhand

Case brief

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