Sanjay Kumar Dwivedi, J
1. Heard learned counsel appearing for the petitioners as well as the learned counsel appearing on behalf of the respondent State.
2. This petition has been filed for quashing of the entire criminal proceeding arising out of Drugs and Cosmetics Case No.12 of 2014, corresponding to C-III Case No.12 of 2014, including the order taking cognizance dated 02.01.2014 passed by learned A.C.J.M., Ranchi whereby he has been pleased to take cognizance under section 27(d) of Drugs and Cosmetics Act, 1940, pending in the court of learned Special Judge, Cyber Crime and Drugs and Cosmetic, Ranchi.
3. The complaint case has been filed alleging therein the then Drug Inspector had inspected Sadar Hospital Gumla on 03.09.2010 and collected sample of Crystal Violet I.P.250 gms. Batch No.1437 Mfg. D. Nov., 2008, Exp. Dt. Oct., 2011, Mfg. by M/s Macsen Laboratories at Village Titerdi Near Municipal Trenching Ground, Tehsil Girwa, Udaypur-2 from Medicine Godown, Sadar Hospital Gumla under provisions of section 22 of Drugs and Cosmetics Act complying requirement of section 23 of the said Act. The sample was sent to Government Analyst, Central Drug Laboratory, Kolkata on 15.09.2010. The Central Drug Laboratory, Kolkata sent its test report on24.06.2011 and found the sample of below standard giving reason that the sample does not conform to USP with respect to Water and Assay. Vide letter dated 15.07.2011, Civil Surgeon cum Chief Medical Officer, Gumla, was made available the test report, Direction was given to stop distribution of the drug and asked for the purchase invoice. Reminders were also sent to the Civil Surgeon cum Chief Medical Officer Gumla on 4.8.2011 15.9.2011 and 16.11.2011. The Civil Surgeon Gumla replied through letter that the drug had been supplied from State RCH Bhandar, Namkum, Ranchi. The State RCH Officer, Namkum Ranchi was also requested to stop distribution of drug namely Crystal Violet IP 250 grm. Batch no.1437 mfg. dt. Nov. 2008. Exp. Dat. Oct. 2011 and asked for purchase invoice of the drug vide letter dated 19.12.2011. The manufacturer, M/s Macsen Lab i.e. petitioner no.1 was also sent test report under form-13 and asked for explanation along with other required details vide letter no.768 dt.19.12.1011 and requested to collect one part of the sample from the office of complainant under section 23(4) of the said Act. The petitioner no.1 sent its explanation along with other details asked for vide its letter dt. 16.01.2012. The manufacturer company was again requested for collecting sample vide letter dt. 27.01.2012 but till date sample has not been collected. Complainant again sent reminder to the State RCG Officer Ranchi with regard to stopping of distribution of drug namely crystal violet IP 250 gms. Batch no.1437 mfg. Dt Nov. 2008 Exp.Dt Oct. 2011 and sending the purchase invoice of the drug. Director, Health Services Jharkhand, Ranchi sent reply on 3.2.2012 that drug in question had been purchased from M/s J.R. Pharma on 8.12.2008 and made available the copies purchase invoice. Then M/s J.R. Pharma was also made available to copy of test report, directed to stop distribution of medicine and asked for copy of purchase invoice vide letter dt. 11.2.2012 and reminder dt. 27.3.2012 M/s J.R. Pharma replied in turn vide letter dt. 17.4.2012 that manufacturer of medicine is M/s Macsen Lab and made available the purchase invoice dt. 25.11.2008. Complainant sent entire investigation report to Director in Chief, State Drug Control Directorate, Ranchi vide letter dt. 13.4.2012 and sought permission for taking necessary action. Reminders were also sent and asked for sanction for prosecution against manufacture company. Sanction for prosecution was accorded vide letter dated 26.12.2013. it is further alleged that M/s Macsen Lab. has violated provision of sections 18(a)(i) and 18-B of Drugs & Cosmetics Act and punishable under section 27(d) of the Drugs and Cosmetics Act.
4. Mr. Rishi Pallava, the learned counsel for the petitioners submits that the learned court has been pleased to take cognizance against the petitioners on the said complaint. He further submits that petitioner no.1 is the company which manufactures the drugs, the petitioner no.2 is proprietor of the said company and petitioner no.3 is the analytical chemist of the said company. He submits that maximum punishment prescribed under section 27(d) of the Drugs & Cosmetics Act is two years. The complaint case was registered on 02.01.2014 after three years three months and 29 days from the date of collection of sample. He submits that in view of that section 468(2) Cr.P.C the limitation of filing the complaint is only three years and in absence of any condonation petition the said complaint was filed and the learned court has taken cognizance. He further submits that the procedure prescribed under section 25(3)(4) of the Drubs & Cosmetics Act has not been followed and valuable right of the petitioners has been taken away. On this ground he submits that the entire criminal proceeding may kindly be quashed.
5. Mr. Deepankar Roy, the learned counsel appearing on behalf of the respondent State opposed the prayer and submits that after receiving the report of the Drug Analyst the complaint case was lodged and in view of that, it is within time. He submits that so far as section 25 of the said Act is concerned, the drug was tested in the Central Laboratory and in view of that there was no occasion to provide sample to the petitioners for re-examination by any other laboratory.
6. In view of above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record and finds that it is an admitted fact that as per the complaint petition itself that the sample of medicine made by the petitioner-company were collected on 3.9.2010. The reports were dated 30.05.2011, which declare the medicine to be sub-standard. The complaint case was registered on 02.01.2014 and the cognizance was taken by the learned court on 02.01.2014 under section 27(d) of the Drugs & Cosmetics Act. Thus, it is crystal clear that after more than three years three months and 29 days from the date of collection the complaint case was filed. The maximum punishment which can be imposed under section 27(d) of the said Act is of two years and the period of limitation is prescribed under section 468 Cr.P.C is three years and the complaint case has been filed beyond the period of three years and prosecution against the petitioners in view of that cannot be allowed to continue. The period of limitation is to be computed from the date the alleged occurrence is said to have taken place till the complaint is instituted and even in the said circumstances the institution of the case are said to be more than three years. In the case of Sarah Mathew v. Institute of Cardio Vascular Disease By Its Director Dr. K.M. Cherian and Others reported in MANU/SC/1210/2013: (2014) 2 SCC 62, it was held as under:
“51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale 5 which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC.”
The reply was made which is disclosed in the complaint by the petitioners stating that the drug report was provided to the petitioners after expiry of self-life of the said drug and it is not good to re-examine it at any other laboratory. Sub section 3 and 4 of Section 25 of the said Act speaks as under:
“ xxxxx xxxxx xxxxxx
(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.
(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.”
7. In view of above provision of the Act, if the accused is intend to re-examine the same right is required to be provided to the accused. In the case in hand, after expiry of the drug life, the report was provided to the petitioners and in view of that, the right of the petitioners was already taken away of re-examining the same by any other laboratory and that has occurred due to laches on the part of the prosecution. If such a situation is there, the argument of the learned counsel for the respondent State with regard to the intention of filing a petition of re-examination by another laboratory is not tenable. It was incumbent upon the prosecution to provide the said report within time and if the intention to re-examine was not shown by the company, the matter would have been otherwise. However, it is an admitted position that after expiry of the life of the said drug, the report was provided and in view of that the valuable right of the petitioners have been taken away and as such, the prosecution is bad.
8. In view of above considering the limitation period prescribed under section 468 Cr.P.C and taking away the valuable right of the petitioners under section 25 of the Drugs & Cosmetics Act, the entire criminal proceeding arising out of Drugs and Cosmetics Case No.12 of 2014, corresponding to C-III Case No.12 of 2014, pending in the court of learned Special Judge, Cyber Crime and Drugs and Cosmetic, Ranchi is hereby quashed.
9. This petition is allowed and disposed of.
10. Pending petition, if any, also stands disposed of accordingly.
