Right To Controvert Government Analysts' Report U/S 25 of Drugs & Cosmetics Act Is An Indefeasible Right: Himachal Pradesh High Court

The Himachal Pradesh High Court recently held that a report of the Government Analyst under Section 25 of the Drug and Cosmetics Act is a conclusive evidence of facts unless the person, from whom the sample was taken, notifies within 28 days of receipt of a copy of the report that evidence in controversion will be adduced.

Justice Satyen Vaidya held that such right to controvert the report is an indefeasible right of the accused.

"The right under Section 25 (4) of the Act is valuable and indefeasible right, which cannot be easily taken away. In criminal prosecution, the right to defend oneself is an absolute and unbridled right."

The petitioner, an accused in a complaint case, had approached the court for setting aside an order of the Additional Chief Judicial Magistrate rejecting the plea to send the seized sample for analysis to Central Drugs Laboratory, Kolkata.

The Union of India filed a case against the petitioner-accused under the Drugs and Cosmetics Act, 1940 for not manufacturing standard quality of drug samples, as revealed from the report of the Government Analyst. During the pendency of the complaint, the accused-petitioner approached the Additional Chief Judicial Magistrate, Nalagarh seeking to send the second sample for analysis to the Central Drugs Laboratory, Kolkata on the ground that the complaint does not disclose even a prima-facie case against the petitioner.

However, the said prayer was rejected on the ground that the petitioner earlier had expressed that he does not intend to challenge the FDA results, thereby forfeting the claim to challenge the Government Analyst Report.

On the other hand, it was the petitioner's claim that he had not given up its right to challenge the Government Analyst Report. Moreover, he was well within his right to  invoke the remedy under Section 25 (4) of the Act, by making a prayer before the trial Court to send the seized sample for testing by Central Drugs Laboratory, Kolkata. He submitted that the communication, when read as whole, would show that the intention of the petitioner was not to admit the report.

As per contention of petitioner, merely because he had communicated his wish not to challenge the FDA results at that stage cannot be construed to be an act of giving up of its right under Section 25 (3) and (4) of the Act.

On a perusal of the communication by the petitioner, the Court held that it cannot be construed as an act of petitioner to give up its right under Section 25(4) of the Act. It observed,

"Additional Chief Judicial Magistrate has clearly erred in not appreciating in right perspective the severable relation between sub-Section (3) and sub-Section (4) of Section 25 of the Act...The seized sample, lying in custody of learned trial Court is ordered to be sent to Central Drugs Laboratory Kolkata at the cost of petitioner forthwith, so as to obtain the report from such laboratory before the date of expiry of the sample. "

Also Read: Drugs & Cosmetics Act | Defeating Accused' Right To Adduce Evidence U/S 25(3) In Controversion of Govt Analyst's Report Vitiates Prosecution: J&K&L HC

Case Title: M/S Hetero Labs Limited & Anr v. Union of India

Citation: 2022 LiveLaw (HP) 35 

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