Seelam Koti Reddy Vs. State of A.P. and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/950268
CourtAndhra Pradesh High Court
Decided OnAug-17-2012
Case NumberCrl.P.No.652 of 2010
Judge G. KRISHNA MOHAN REDDY
AppellantSeelam Koti Reddy
RespondentState of A.P. and Another
Excerpt:
this criminal petition is filed under section 482 cr.p.c. to quash order dated 26-10-2009 passed in crl.m.p.no.287 of 2009 in c.p.r.no.227 of 2009 on the file of i additional judicial magistrate of first class, nizamabad. 2. whereas the petitioner herein is the accused the second respondent herein is the complainant in the proceedings before the court below. for the sake of convenience, i refer the parties as arrayed in the proceedings before the court below. 3. the facts of the case are as follows: the accused is the proprietor of m/s. seeko biotics, krishna nagar, tadepalli mandal, guntur district, which is the manufacturer and supplier of a drug by name ‘fyte’. on 20-10-2008 the complainant, being the drug inspector, visited the shop of the accused and collected samples of the said drug observing necessary formalities. the complainant sent one of the samples to the government analyst, drugs control laboratory, hyderabad, for analysis and report. subsequently analyst report was received therefrom with the endorsement “not of standard quality”. therefore, the complainant issued a notice dated 24-08-2009 to the accused informing about the outcome of the analysis of the sample which was received by the accused on 07-09-2009. consequently, the accused sent a letter dated 01-10-2009 to the complainant notifying that he was intending to challenge the analyst report under section 25(3) of the drugs and cosmetics act, 1940 (for short ‘the act’), but no consequential action was taken. thereafter the accused filed the petition in question praying to send the second sample for analysis and report to the central drugs laboratory, kolkatta, under section 25(3) of the act. 4. upon considering the material available, it is observed by the court below as follows. by virtue of section 25(3) of the act, the accused should have challenged the report furnished to him by the complainant within 28 days of receiving the copy of the report. as per the material available, the accused received a copy of the report along with notice on 07-09-2009, thereby he had to approach the court under section 25(3) of the act on or before 04-10-2009, but he filed the petition at a belated stage which cannot be permitted. the court below also referred to a decision in amery pharmaceuticals v. state (air 2001 sc 1303) with regards to the question of delay. with those observations, the court below dismissed the petition. thereby the present petition has been filed. 5. learned counsel for the accused would contend that by virtue of clause (3) of section 25 of the act, upon receiving a copy of the analyst report together with notice, the accused got a right to notify in writing the complainant or the court about his intention to adduce evidence in controversion of the report following which either the complainant or the court got obligation to send the second sample to the central drug laboratory for analysis and report for the purpose of deciding the complicity of the accused in the matter finally. but even though the accused issued the proceedings giving his intention to do so within the stipulated time, no action was taken either by the complainant or by the court by reason of which the accused lost a valuable right of establishing his innocence in the case as a result of which the proceedings are liable to be quashed. 6. learned additional public prosecutor contends that by virtue of clause (4) of section 25, the accused also got an obligation to file an application before the court for the purpose of sending the second sample to the central drugs laboratory, but he failed to do so, whereby non-fulfillment of the obligation by the complainant or the court cannot be taken as a circumstance to quash the proceedings. according to him the court below properly appreciated the matter and no grounds are made out to quash the proceedings. 7. therefore, it is to be seen as to whether by virtue of clauses (3) and (4) of section 25, there was incumbency on the part of the accused to take steps for approaching the court and file an application seeking to send the second sample to the central food laboratory for analysis and report in order to establish his innocence as against the analyst report sent by the state government analyst irrespective of whether the court or the complainant had taken such measures or not. 8. for better appreciation of the matter, it is necessary to extract section 25 of the act, which reads as follows: “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 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 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.” 9. section 25 of the act provides procedure for taking samples and also the consequential steps to be taken. it lays certain obligations as well as provides safeguards for a person from whom a drug has been seized for analysis or testing. 10. there is absolutely no dispute between the parties that the accused served a notice upon the complainant within the stipulated time i.e., by 01-09-2010 giving his intention to send the second sample to the central food laboratory for necessary analysis and report in order to prove his innocence after he received the notice on 07-09-2009 about the report given by the government analyst. it is also admitted that no action was taken by the complainant consequently. therefore it is to be seen as to whether the accused got obligation to approach the court and file an application for the said purpose though he sought the complainant to take necessary measures. in this context the purport of clause (3) is to be examined. it clearly enjoins that (1) any document purporting to be a report signed by a government analyst under this chapter shall be the evidence of the facts stated therein, and (2) 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 18-a 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. thereby mere notifying 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 creates a bar to accept the report as conclusive evidence of the facts stated therein subject to establishing the controversy. this clause does not specify as to whether the person aggrieved by the report of the state government analyst has to establish the controversy by himself taking necessary measures. in fact this clause infers that the moment the court or the complainant is notified to that effect the party aggrieved ceases to have any further obligation whereas either the complainant or the court would be under obligation to take necessary steps. thus it also infers that when the party aggrieved notified his intention to the complainant, the latter should have approached the court to send another sample to the central drugs laboratory for analysis and report. in clause (4), it is clearly enjoined that upon notifying such intention of the aggrieved party, which definitely includes that communicated through the complainant 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 clause (4) of section 23 to be sent for test or analysis to the central drugs laboratory. this clause is to be read in the light of the observations made above. 11. similar question was considered by the apex court in medicamen biotech limited v. drug inspector ((2008) 7 scc 196) following another decision in state of haryana v. unique farmaid (p) ltd. ((1999) 8 scc 190) which was also a case under insecticides act. in that latter case also, the accused concerned therein made a request to the inspector also concerned therein for sending one of such samples for retesting within the prescribed time limit, but that request was not accepted by reason of which a question arose as to whether the accused lost an important right of proving his innocence of the corresponding charge. the supreme court observed: “12. it cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the central insecticides laboratory under sub-section (4) of section 24 of the act. under sub-section (3) of section 24 report signed by the insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the insecticides inspector or the court before which proceedings are pending that they intend to adduce evidence to controvert the report. in the present cases the insecticides 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.” 12. this decision holds good here. it is not in dispute that the expiry date of the sample was 29-10-2009. therefore, in any case, because of the expiry of the life period of the product or because of the failure of the complainant to take measures, the valuable right of the accused to prove his innocence was lost. hence, in these circumstances, the impugned proceedings against the accused are untenable. the court below failed to appreciate the matter properly. 13. in the result, the criminal petition is allowed quashing the order dated 26-10-2009 passed in crl.m.p.no.287 of 2009 in c.p.r.no.227 of 2009.
Judgment:

This Criminal Petition is filed under Section 482 Cr.P.C. to quash order dated 26-10-2009 passed in Crl.M.P.No.287 of 2009 in C.P.R.No.227 of 2009 on the file of I Additional Judicial Magistrate of First Class, Nizamabad.

2. Whereas the petitioner herein is the accused the second respondent herein is the complainant in the proceedings before the Court below. For the sake of convenience, I refer the parties as arrayed in the proceedings before the Court below.

3. The facts of the case are as follows:

The Accused is the Proprietor of M/s. Seeko Biotics, Krishna Nagar, Tadepalli Mandal, Guntur District, which is the manufacturer and supplier of a drug by name ‘FYTE’. On 20-10-2008 the complainant, being the Drug Inspector, visited the shop of the accused and collected samples of the said drug observing necessary formalities. The complainant sent one of the samples to the Government Analyst, Drugs Control Laboratory, Hyderabad, for analysis and report. Subsequently analyst report was received therefrom with the endorsement “Not of standard quality”. Therefore, the complainant issued a notice dated 24-08-2009 to the accused informing about the outcome of the analysis of the sample which was received by the accused on 07-09-2009. Consequently, the accused sent a letter dated 01-10-2009 to the complainant notifying that he was intending to challenge the analyst report under Section 25(3) of the Drugs and Cosmetics Act, 1940 (for short ‘the Act’), but no consequential action was taken. Thereafter the accused filed the petition in question praying to send the second sample for analysis and report to the Central Drugs Laboratory, Kolkatta, under Section 25(3) of the Act.

4. Upon considering the material available, it is observed by the Court below as follows. By virtue of Section 25(3) of the Act, the accused should have challenged the report furnished to him by the complainant within 28 days of receiving the copy of the report. As per the material available, the accused received a copy of the report along with notice on 07-09-2009, thereby he had to approach the Court under Section 25(3) of the Act on or before 04-10-2009, but he filed the petition at a belated stage which cannot be permitted. The Court below also referred to a decision in AMERY PHARMACEUTICALS v. STATE (AIR 2001 SC 1303) with regards to the question of delay. With those observations, the Court below dismissed the petition. Thereby the present petition has been filed.

5. Learned counsel for the accused would contend that by virtue of clause (3) of Section 25 of the Act, upon receiving a copy of the analyst report together with notice, the accused got a right to notify in writing the complainant or the Court about his intention to adduce evidence in controversion of the report following which either the complainant or the Court got obligation to send the second sample to the Central Drug Laboratory for analysis and report for the purpose of deciding the complicity of the accused in the matter finally. But even though the accused issued the proceedings giving his intention to do so within the stipulated time, no action was taken either by the complainant or by the Court by reason of which the accused lost a valuable right of establishing his innocence in the case as a result of which the proceedings are liable to be quashed.

6. Learned Additional Public Prosecutor contends that by virtue of clause (4) of Section 25, the accused also got an obligation to file an application before the Court for the purpose of sending the second sample to the Central Drugs Laboratory, but he failed to do so, whereby non-fulfillment of the obligation by the complainant or the Court cannot be taken as a circumstance to quash the proceedings. According to him the Court below properly appreciated the matter and no grounds are made out to quash the proceedings.

7. Therefore, it is to be seen as to whether by virtue of clauses (3) and (4) of Section 25, there was incumbency on the part of the accused to take steps for approaching the Court and file an application seeking to send the second sample to the Central Food Laboratory for analysis and report in order to establish his innocence as against the analyst report sent by the State Government Analyst irrespective of whether the Court or the complainant had taken such measures or not.

8. For better appreciation of the matter, it is necessary to extract Section 25 of the Act, which reads as follows:

“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 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 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.”

9. Section 25 of the Act provides procedure for taking samples and also the consequential steps to be taken. It lays certain obligations as well as provides safeguards for a person from whom a drug has been seized for analysis or testing.

10. There is absolutely no dispute between the parties that the accused served a notice upon the complainant within the stipulated time i.e., by 01-09-2010 giving his intention to send the second sample to the Central Food Laboratory for necessary analysis and report in order to prove his innocence after he received the notice on 07-09-2009 about the report given by the Government Analyst. It is also admitted that no action was taken by the complainant consequently. Therefore it is to be seen as to whether the accused got obligation to approach the Court and file an application for the said purpose though he sought the complainant to take necessary measures. In this context the purport of clause (3) is to be examined. It clearly enjoins that (1) any document purporting to be a report signed by a Government Analyst under this Chapter shall be the evidence of the facts stated therein, and (2) 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 18-A 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. Thereby mere notifying 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 creates a bar to accept the report as conclusive evidence of the facts stated therein subject to establishing the controversy. This clause does not specify as to whether the person aggrieved by the report of the State Government Analyst has to establish the controversy by himself taking necessary measures. In fact this clause infers that the moment the Court or the complainant is notified to that effect the party aggrieved ceases to have any further obligation whereas either the complainant or the court would be under obligation to take necessary steps. Thus it also infers that when the party aggrieved notified his intention to the complainant, the latter should have approached the Court to send another sample to the Central Drugs Laboratory for analysis and report. In clause (4), it is clearly enjoined that upon notifying such intention of the aggrieved party, which definitely includes that communicated through the complainant 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 clause (4) of Section 23 to be sent for test or analysis to the Central Drugs Laboratory. This clause is to be read in the light of the observations made above.

11. Similar question was considered by the Apex Court in MEDICAMEN BIOTECH LIMITED v. DRUG INSPECTOR ((2008) 7 SCC 196) following another decision in STATE OF HARYANA v. UNIQUE FARMAID (P) LTD. ((1999) 8 SCC 190) which was also a case under Insecticides Act. In that latter case also, the accused concerned therein made a request to the Inspector also concerned therein for sending one of such samples for retesting within the prescribed time limit, but that request was not accepted by reason of which a question arose as to whether the accused lost an important right of proving his innocence of the corresponding charge. The Supreme Court observed:

“12. It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub-section (4) of Section 24 of the Act. Under sub-section (3) of Section 24 report signed by the Insecticide Analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases the Insecticides 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.”

12. This decision holds good here. It is not in dispute that the expiry date of the sample was 29-10-2009. Therefore, in any case, because of the expiry of the life period of the product or because of the failure of the complainant to take measures, the valuable right of the accused to prove his innocence was lost. Hence, in these circumstances, the impugned proceedings against the accused are untenable. The Court below failed to appreciate the matter properly.

13. In the result, the Criminal Petition is allowed quashing the order dated 26-10-2009 passed in Crl.M.P.No.287 of 2009 in C.P.R.No.227 of 2009.