D. P. Sengupta, J.
1. The revisional application (Criminal Revision No. 143 of 1997) is for quashing of a proceeding before C.R. Case No. 1169/ 96 under sections 27 and 28A of the Drugs and Cosmetics Act, 1940 now pending in the Court of Judicial Magistrate, Barasat, North 24 Parganas.
2. The present petitioner No. 1 is the works Manager in M/s. Caplet India Private Limited, a company registered under the Companies Act and the petitioner No.2 is the chemist in the said company, which is engaged in manufacturing and sale of different kinds of medicines. Amongst its various products the company also manufacture 'Paracetamol i.P.500 mg.' tablets.
3. The complainant Sri Sambunath Dey, inspector of Drugs (O.P. No.l herein) had taken samples of the said Paracetamol tablets of 2000 In numbers in four containers each containing 50 tablets from the District Reserve Stores, Chief Medical Officer of Health. Burdwan on 23rd December, 1992. The said samples were thereafter sent to the Government Analyst for test and analysis was done on 3.11.92 after a lapse of 11 days from the date of taking such samples. The Government Analyst of the Central Drugs Laboratory on analysis found Paracetamol totally absent in the sample which according to him was spurious, misbranded and adulterated vide his report in Form 13 under No. 13-2/92 P & P/W.B. 92 dated 13.1.93. The Government Analyst forwarded the said report to the complainant/opposite party No.l under letter No.l3/2/92-P & P/W.B.-90/6779 dated 5.2.93. it appears that the said report was received by the complainant on 16.7.96 and copy of the same was sent to the accused manufacturing company on 25.7.96 and another copy was sent to the District Reserve Stores, Burdwan.Having received the said report the complaint was filed in the Court of the learned Chief Judicial Magistrate, Barasat alleging commission of offences under sections 27 and 28A of the Drugs & Cosmetics Act, 1940. On receipt of such petition of complaint the learned Magistrate by his order dated 4.12.96 took cognizance of the offence and on a prayer made by the complainant issued search warrant for recovery of some documents. it is at this stage the petitioner came up before this Court praying for quashing of the proceeding.
4. Mr Sekhar Basu, learned advocate a appearing for the peliUoners submits that in taking samples drug the complainant (Inspector of Drugs) committed serious illegalities. According to Mr. Basu the Inspector of Drugs look samples of Paracetamol tablets from the District Reserve Stores, Chief Medical Officer of health, Burdwan and the said tablets are alleged to have been manufactured by the accused petitioners company. Sample was taken in four containers and he should have sent one portion of the said sample to the manufacturer of said product as per the provision of sub-section (4) of section 23(4) of the Drugs and Cosmetics Act, 1940. According to Mr. Basu non-compliance of the said provision has vitiated the entire proceeding and the instant proceeding is liable to be quashed on this score alone. Mr. Bose draws the attention of the Court to the provision of section 23(4) of the Drugs and Cosmetics Act, 1940, which runs as follows :
'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 of container he shall forthwith send to the GovernmentAnalyst for test or Analyst:
(ii) the second he shall produce to the Court it 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 18-A.
5. Mr. Basu further submits that the aforesaid mandatory provision has been prescribed to safeguard the interest of the person from whom the sample has been taken and also of the manufacturer of the said drug. Any breach of such mandatory provisions vitiates the whole proceeding, clause (iii) of sub-section (4) of section 23 of Drugs and Cosmetics Act clearly provides that out of the portions of sample, the third portion is to be sent to the manufacturer whose name is to be disclosed in terms of section 18A of the said Act. In the instant case the third portion of the sample was not sent to the manufacturer as required by the said provision. Due to non compliance of the said provision of the Act the manufacturer did not get any opportunity to defend and to identity the stock either to be their own or to have been fabricated and tampered with during the process of sampling and/or testing.
6. In support of his contention Mr. Basu relies on a Judgment of the Hon'ble apex Court reported in : 2000CriLJ2962 , which is a case under the insecticides Act. 1968. In the said Judgment it was held by the Hon'ble apex Court as follows :--
'The procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has the right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from the Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. in the present case, by the time the respondents were asked to appear before the Court, the expiry date of the insecticide was already over and sending of the sample to the Central insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. in State of Punjab v. National Organic Chemical Industries Ltd. this Court in somewhat similar circumstances said that the procedure laid down under section 24 of the Act deprived the accused to have the sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost despatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the Court did not allow the criminal complaint to proceed against Hie accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question....
In the present cases the Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the Court, the shelf life of the sample had already expired and no purpose would have been served informing the Court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case the accused have been deprived of that right, thus, prejudicing them in their defence.
In these circumstances, the High Court was right in concluding that it will be an abuse of the process of the Court if the prosecution is continued against the respondents, the accused persons. The High Court rightly quashed the criminal complaint. We uphold the order of the High Court and would dismiss the appeals.'
7. It would be partisent to mention herein that in the instant case the Director of Drugs Control issued a show cause notice to the petitioner's company asking it to show cause as to why its licence for manufacturing drugs should not be suspended and any legal action should not be taken against the said company. Challenging the aforesaid show cause notice a writ application was moved in this Court. By a judgment dated 24th December, 1998 the said writ application was allowed and it was held by this Court as follows :--
'Bemuse such irregularities and/or illegalities as referred to above and also because of the admitted non-compliance of the provisions of clause (iii) of sub-section (4) of section 23 of the Drugs and Cosmetics Act, 1940 which are mandatory in nature, in my view, the impugned proceeding is wholly vitiated and as such, cannot be sustained in law and therefore,stands quashed and so also all consequential orders passed in the said enquiry proceeding including the final order passed therein, if there be any, as well as the decision dated 12th of December, 1996 declared by the Director of the Drugs Control, Slate of West Bengal and Secretary, Licensing Authority, State of West Bengal, in respect of the impugned enquiry proceeding, which also stands set aside.
The writ application accordingly succeeds and is allowed without any order as to costs.'
8. Mr. Basu, learned advocate of the petitioners produced a copy of the Judgment of the writ Court as stated above. I have carefully gone through the said Judgment, from which it becomes evident that the points agitated in this revisional application were also dealt with in the said J udgment.
9. Considering the facts and circumstances of the case I am of the view that there is much substance in the contention of Mr. Basu. In the present case sub-section (4) of section 23 of the Drugs and Cosmetics Act, 1940 directs the Drugs Inspector the manner in which he is to dispose of the portions of sample taken by him and clause (Hi) of the sub-section (4) of section 23 of the Act in specific terms provides that the Drug inspector is to send ihe third portion of the sample to the manufacturer. When the Statute has directed that the portions of sample are to be disposed of in a particular way the Drugs inspector has to follow the said directions and he cannot act in a different way. Therefore, the Drugs inspector in not complying with the said procedure has clearly violated the mandatory provisions of law provided in clause (iii) of sub-section (4) of section 23 of the Act, thereby causing serious prejudice to the accused and vitiating the entire proceeding. In my considered opinion the instant proceeding should be quashed on this score alone.
10. In view of the discussions made above the revisional application succeeds and the same is allowed. The impugned proceeding being C.R. No. 1169/96 under sections 27 and 28A of the Drugs and Cosmetics Act is hereby quashed.
This Judgment will also govern the other revisional application being Criminal Revision No. 144 of 1997 which was moved, challenging the same proceeding, on behalf of the accused Company, namely, M/s. Caplet India Private Limited and 7 others being the Directors of the said Company.
11. Application Succeed.