Warner Hindustan Ltd., Uppal, Hyderabad and Warner Hindustan Ltd., Madras. vs State

P.K. Sethuraman, J.—This is a revision filed against the order passed by the learned IVth Metropolitian Magistrate, Saidapet in Crl. M.P.

No. 139 of 1987 filed by the petitioners who are accused 1 and 3 in C.C. No. 8749 of 1987. The two petitioners along with two others are

accused in the case filed by the Drugs Inspector, Intelligence Wing, Madras and it appears the premises of the second petitioner was inspected by

the respondent on 3rd July, 1987 and samples of Tedral liquid (Batch No. 312057) were taken. Twelve bottles of samples were taken of the

same batch and the remaining 1,788 bottles of the Tedral liquid were frozen. The samples had been sent for analysis by the complainant, namely,

the respondent herein and three reports dated 16th July, 1987 had been sent by the Government Analyst, Madras and according to the petition

though the analysis related to the same batch, of the same drug, Report No. 722/D/87-88 indicated that the sample referred to was adulterated

since it was found to contain fungal hyphae with spores. The other two reports were to the effect that samples were of standard quality as defined

in the Drugs and Cosmetics Act the Rules framed thereunder. Accordingly, out of the three samples sent for analysis relating to the same batch,

one sample was found to be adulterated. A show cause memo had been sent to the third accused dated 21st July, 1987 along with the test reports

calling for certain particulars. The second petitioner is stated to have been furnished the details by the letter dated 3rd August, 1987 and 13th

August, 1987 to the concerned Drugs Inspector. The complainant had sent along with his letter dated 17th August, 1987. Three test reports to the

1st accused and it has been received by the 1st accused at Hyderabad on 24th August, 1987 and show cause memo was also issued to the first

accused. Subsequently, the complaint had been filed and the accused appeared in Court on 22nd December, 1987. Thereupon, it appears the

petition Crl. M.P. No. 139 of 1988 had been filed under Ss. 3 and 4 of the Drugs and Cosmetics Act praying the Court to send one sample of the

drug of the same batch (No. 312057) of tedral liquid to the Director of Central Drugs Laboratory. The said petition had been opposed by the

complainant contending that under the provision 25(3) of the Drugs and Cosmetics Act, the accused have to refer to the Drug Inspector within 28

days of the receipt of the copy of the analyst report, but in this case though the accused received the report with the show cause memo on 20th

August, 1987. They have filed the petition only on 22nd February, 1987 and under S. 25(3) and S. 25(4) of the Drugs and Cosmetics Act, the

petition is beyond the period and it had been filed after lapse of 123 days. Therefore, the petition is not maintainable. After hearing bothsides, the

IV Metropolitan Magistrate, Saidapet dismissed the same. Hence, the revision.

It is now mainly contended by the learned counsel for the petitioner, that the petitioners accused 1 and 3 had expressed their surprise with the

test reports and according to the learned counsel for the petitioners such communication by the petitioner would amount to their intention to

controvert the report as contemplated under S.25(3) of the Drugs and Cosmetics Act and that such communication had been sent to the Drugs

Inspector within the period of 28 days and further on the very date of appearance before the court, the petition had been filed and in such

circumstances, the dismissal of the petition by the learned Magistrate is not correct and, therefore, it was contended that the order has to be set

aside. I had been taken through the replies sent by the petitioners to the Drug Inspector after the receipt of the test reports. It may be stated that

the petitioners as such have not specifically mentioned that they intend to adduce evidence in contravention of report but it could be stated that they

had expressed surprise at the reports received. Coming to S. 25(4) of the Drugs and Cosmetics Act it is to be stated that the analysis at the first

instance had been only in the state laboratory at Madras. Therefore, it is clear that the drug had not been analysed in the Central Drugs

Laboratory. It is to be pointed out that under S. 25(4) of the Drugs and Cosmetics Act whether a person under sub-S. 3 of the Act notified his

intention of adducing evidence in contravention of Government Analyst report, the Court of its own mention or its discretion at the request either of

the complainant or the accused caused the sample of the drug to be sent for test or analysis to the said laboratory. Having regard to such wordings

in sub-S. 4 of S. 25 of the Drugs and Cosmetics Act I feel, even assuming that the petitioners had not notified their intention in so many words of

adducing evidence in contravention of the analyst report, the Court could have exercised in its discretion at the request of the petitioners to send

the sample of the drug to the Central Drugs Laboratory. I have taken this view especially in view of the fact that the learned counsel for the

petitioners submitted that even according to the first petitioner being the manufacturer the expiry date is only the 5th month of the year 1980.

While, that is so, the observation by the learned Magistrate that because the application had been made belatedly the drug itself is likely to have

been effected by other factors cannot at all be a proper reason. Accordingly, the order passed by the learned Magistrate dismissing the petition is

set aside and the learned Magistrate is directed to send the sample to the Central Drugs Laboratory at the cost of the petitioners for the report.

Ordered accordingly.