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

The observations were made by Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had challenged the complaint filed by respondent No.1/Drugs Inspector alleging commission of offences under Sections 18 read with Section 27(d) and Section 18 B read with Section 28 of the Drugs and Cosmetic Act, 1940 and the proceedings initiated thereon.

The petitioner in his plea submitted that there is discrepancy between the particulars of the sample collected by respondent No.1 from the premises of the co-accused and the particulars of the sample, that was analyzed and tested by the Government Analyst and according to the petitioner, the sample collected from the premises of the co-accused was not the same as was analyzed by the Government Analyst, as in the Form No.17 issued by the Drugs Inspector, sample in the shape of strips containing 15 tablets were collected but as per Form No.13 annexed with the complaint, the Government Analyst has analyzed and tested the sample in the shape of strips containing 10 tablets.

The petitioner also contended that it was in this regard that the petitioner time and again sought clarification from the complainant, so that it could exercise its right under Section 25(3) of the Act but no response was given by the complainant/respondent in this regard, thus, depriving the petitioner of its valuable statutory right available in terms of the aforesaid provision.

While dealing with the first contention of the petitioner with regard to the discrepancy between the sample collected and the one which was analysed, the court dismissed the arguments of the respondent that it was a mere clerical mistake. There is a serious doubt as to the fact whether the sample that was collected from the premises of the co-accused is the same that was subjected to analysis and test by the Government Analyst and the report of the Government Analyst is lynchpin of the prosecution case relating to the offences which are subject matter of the impugned complaint, the court stated.

"When the report itself is shrouded in serious suspicion and it is not sure as to whether the report of the Government Analyst relates to the sample lifted from the premises of the co-accused, the very basis of the prosecution case gets knocked down", Justice Dhar maintained.

Deliberating on the rights of the accused under sec 25(3) of the Drugs and Cosmetics Act the bench observed that Section 25(3) of the Act provides that a report signed by the Government Analyst would be evidence of the facts stated therein and such evidence would be conclusive unless the person from whom the sample was taken or the person, whose name, address and other particulars etc have been disclosed has, within twenty eight days of the receipt of the report, notified in writing to 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.

Thus, the bench explained that a valuable statutory right has been conferred upon the manufacturer, retailer etc. to adduce evidence in controversion of the report of the Government Analyst and failure to exercise such right makes the test report conclusive evidence against such manufacturer, dealer etc.

Buttressing the said position of law the bench placed firm reliance on the judgment of supreme court in Medicamen Biotech Limited and another v. Rubina Bose Drug Inspector, (2008) wherein SC quashed the proceedings on the ground that the accused in the said case had been deprived of valuable right under Section 25(3) and 25(4) of the Drugs and Cosmetic Act.

Applying the law in vogue to the instant matter the bench observed that the official respondents did not clarify it to the petitioner as to why there was a discrepancy between the sample collected from the premises of the co-accused and the sample subjected to analysis by the Government Analyst. Had it been clarified to the petitioner well in time, it could have exercised its right under Section 25(3) of the Act regarding which the petitioner had repeatedly expressed its intention, the bench recorded.

As a result of foregoing analysis, the bench stated that the valuable right of the accused to adduce evidence in controversion of the Government Analyst's report had been defeated due to acts and omissions of the Drugs Inspector, prosecution against the accused deserved to be quashed.

Case Title : Cipla Ltd Vs State of J&K

Citation : 2022 LiveLaw (JKL) 172

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