Govt Analyst's Report U/S 25 Drugs & Cosmetics Act Not "Conclusive" If It Is Not Supplied To Person From Whom Sample Was Collected: J&K&L High Court

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 Drugs Inspector against them and the co-accused before the Court of Chief Judicial Magistrate, Srinagar, alleging commission of offences under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940.

The petitioner premised his challenge on the ground that the manufacturer had a statutory right to controvert the report of the Government Analyst by adducing evidence but in his case the said right of the petitioners had been violated.

The petitioner contended that the respondent Drugs Inspector had not issued any notice to the petitioners under Section 23 and 25 of the Drugs and Cosmetics Act nor a portion of the sample was sent to the petitioners and the impugned complaint had been filed by the respondent Drugs Inspector at a time when there was no time left for the date of expiry of the drug in question and, as such, the petitioners had no opportunity of applying to the Court with a request for retesting.

Perusal of the record revealed that as per the report of the Government Analyst, Chandigarh, the sample of the drug manufactured by the petitioners was found to be of standard quality.

After receipt of the report of the Government Analyst, Chandigarh, the sample was sent for reanalysis to Central Drugs Laboratory , Kolkata , under the directions of the High Court.

Dealing with the question as to whether in such circumstances, when the sample has been tested by the Central Drugs Laboratory, a manufacturer or any other person has a right to seek a direction for reanalysis of the sample, the bench observed that Sub-sec (4) of Section 25 of the Act is amply clear that that once a manufacturer or the person from whom the sample was taken notifies his intention of adducing evidence in controversion of the report of Government Analyst, the sample of the drug has to be sent for test or analysis to the Central Drugs Laboratory and once such report is received, the same becomes conclusive evidence of the facts stated therein.

Answering the difficulty that arises in cases where the sample has already been analyzed by the Central Drugs Laboratory, the bench explained that the provision begins with the expression "unless the sample has already been tested or analyzed in the Central Drugs Laboratory" means that if the sample has already been tested or analyzed in the Central Drugs Laboratory, the same cannot be sent for re-analysis again to the same laboratory or to any other laboratory.

Dealing with the other contention of the petitioner that to whether the right of a person from whom the sample has been collected or of the manufacturer of the drug to adduce evidence in controversion of the report of Central Drugs Laboratory would get defeated and violated once the sample is sent directly for analysis to the said laboratory, the bench observed that it is clear that while a manufacturer has a valuable right of getting the sample re-tested/re-analyzed by the Central Drugs Laboratory so as to adduce evidence in controversion of the report of the Government Analyst but once the sample has been tested by the Central Drugs Laboratory, there is no occasion for sending the sample again for testing to the same laboratory.

Deliberating on the term "Conclusiveness" used in sec 25(3) of the Act the bench explained that the conclusiveness meant in Section 25(3) of the Act has reference to the person referred to in the said sub-section, meaning thereby that the facts stated in the report of the Government Analyst would become conclusive only against the person who despite having been provided a copy of the report, has failed to notify his intention to adduce evidence regarding facts stated therein within a period of 28 days.

"This conclusiveness of the facts stated in the report would not come into play in a case where the manufacturer or any other person has either not been provided the copy of the report or where such manufacturer or person had no occasion to notify his intention to adduce evidence in controversion of the report," said the court.

Applying the said position of law to the instant case the bench recorded that since the manufacturers/petitioners were not provided the copy of the report of the CDL, Kolkata, or if at all the same was provided, the petitioners/manufacturers could not ask for reanalysis of the sample as the same had already been tested by Central Drugs Laboratory. Therefore, the report would not be conclusive against the petitioners and the petitioners would be at liberty to adduce evidence in controversion of the said report before the trial court, underscored the bench.

For the foregoing reasons, the bench found the petition devoid of any merit and accordingly dismissed the same.

Case Title : M/s Swiss Garner Life Sciences & Ors Vs Union of India.

Citation : 2022 LiveLaw (JKL) 202

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