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Judgment
Anand Byrareddy, J.—Heard the learned counsel for the petitioners and the learned Additional State Public Prosecutor for the respondent. The petitioners are arraigned as Accused no. 1 and 2, respectively, in a complaint filed by the Assistant Drugs Controller, Bangalore Circle-IV, alleging offences punishable u/s 18(a)(i) of the Drugs and Cosmetics Act, 1940 (Hereinafter referred to as the ''DC Act'', for brevity). It is alleged that Accused no 1 is a manufacturing unit and Accused no. 2 is claimed to be responsible for the day to day management of the business. It is alleged that Accused no. 3 is the manufacturing Chemist, who has manufactured the subject drug, which is not of standard quality and thereby has violated the aforesaid provision of law. Accused no. 4 is said to be the Analytical Chemist of Accused no. 1 and is equally culpable.
It is claimed that on 11.4.2007, the complainant had drawn 4x2x5x10 tablets of Zefran 250 (Ciprofloxacin Hel tablets I.P.) B. no. ZRT6001, M/D Nov/06 D/E OCT/2008, Manufactured by: M/s. GMH Laboratories, Plot no. 13, Industrial Township, Bhatolikalam District, Solan H.P. for test and analysis, from the premises of M/s. P H Associates, B/27-A 6th Cross, Kathriguppe Main Road, Vinayakanagar, Bangalore, in accordance with the provisions of the DC Act, and obtained a credit invoice no. 3, dated 11.4.2007.
On 11.4.2007, the complainant had sent a sealed portion of the drug to the Government Analyst, Bangalore, for test and analysis. It is further claimed that on 5.7 2007, the complainant had issued notice u/s 18-A and 18-B of the said Act, along with the original test report in Form-13 to a partner of M/s. P.H. Associates and instructed the firm not to dispose of stocks until further orders by issuing a prohibitory order on-24.7.2007, 10X2007; and 31.9.2007.
Based on the above complaint, the Special Court for Economic Offences, Bangalore had taken cognizance of the offence against the accused u/s 27(d) of the DC Act and registered a case against the accused and issued summons. It is that which is sought to be questioned in this petition.
It is the primary contention of the counsel for the petitioner that the alleged sample of the sub-standard said to have been drawn for analysis and the report obtained thereto was never furnished to the petitioners and therefore were deprived of an opportunity to have the sample analysed by the Central drug Laboratory, before the shelf life of the drug had expired. In this regard it is highlighted that the sample was drawn on 11.4.2007. Cognizance of the offence was taken by the trial Court on 24.1.2009, much after the date of expiry of the drug, namely, October 2008. And the court having issued summons as on 24.1.2009, it is contended that the proceedings are clearly vitiated and liable to be quashed. In this regard reliance is placed on the following authorities:-
a) Jhajhan Lal Gupta, Director and Another Vs. State of Haryana,
b) State of Punjab Vs. National Organic Chemical Industries Ltd.,
c) Northern Mineral Ltd. Vs. Union of India (UOI) and Another,
On the other hand, the learned Additional State Public Prosecutor would contend that on analysis, the concerned drug had failed the dissolution test. It was in this regard that notice had been issued to the petitioners as on 16.7.2007 and to the stockists of the product to explain as to why the drug was not of standard quality. A copy of the same is also said to have been sent to the manufacturer. It is further contended that the petitioners had addressed a letter to the Assistant Drugs Controller, Bangalore on 29.2.2009 stating that they had received notice from the respondent complainant and that they had informed the manufacturer to explain the reason the drug was sub-standard. Therefore it is sought to be contended that the petitioners were fully aware of the finding, well within the prescribed time and hence it was not open to the petitioners to challenge the proceedings on the ground that there was no notice of the proceedings.
It is also highlighted that the petitioners had addressed a letter to the Drug Inspector, Solan District, HP, admitting that the drug manufactured was found to be sub-standard on their own analysis, and with a request not to take any action as they were taking immediate steps to withdraw the drug from the market. This was a clear admission of the violation alleged.
It is also pointed out that the drug was manufactured as on 11/2006 and the date of expiry was 10/2008. The notice which was sent to the petitioner was as on 16.7.2007, to which there was even a response by the petitioners as on 29.2.2008. This would clearly belie any argument that the petitioners are deprived of an opportunity of seeking a further analysis report of the drug, from the Central Drug Laboratory, before the expiry of the shelf life of the drug.
Therefore, it is contended that the cases relied upon by the learned counsel for the petitioners would not be of assistance, having regard to the above circumstances of this case.
It is to be seen in the light of the above rival contentions that the respondent has produced copies of the relevant documents such as the copy of notice issued to the petitioners and the manufacturer as well as the reply issued by the petitioners clearly admitting that the drug was indeed of sub-standard quality. The petitioners have not chosen to file any rejoinder to the statement of objections and have not denied the said copies of documents relied upon by the respondent. Therefore, there is no substance in the challenge on the basis of the grounds raised in the petition. In any event there is no warrant for interference by this court, the proceedings before the trial court would necessarily have to run its course.
Accordingly the present petition is dismissed.