Jammu & Kashmir High Court
Reserved On: 27.02.2026 vs Peerzada Tasaduq Hussain Drug … on 9 March, 2026
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
2026:JKLHC-JMU:749
EHIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRMC No. 453/2018
Reserved on: 27.02.2026
Pronounced on: 09 .03.2026
Uploaded on: 10..03.2026
Whether the operative part or full
judgment is pronounced: Full
Sudhir Kumar, Managing Director, Jacksons Laboratories Pvt. Ltd.
Petitioner
Through: - Mr Varut Gupta Advocate
vs
Peerzada Tasaduq Hussain Drug Inspector Pulwama Srinagar
Respondents
Through: - None.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR,JUDGE
JUDGMENT
1 By way of the present petition filed under Section 561-A
CrPC, the petitioner, namely Sudhir Kumar, Managing Director of
Jacksons Laboratories Private Ltd., seeks quashing of criminal
proceedings in the complaint titled ‘State through Drug Inspector,
Pulwama, Drugs & Food Control Organisation vs. M/s J.M. Traders
and Pharmaceutical Distributors and others, filed by the respondent
under Section 18(a)(i) read with Section 28 of the Drugs and Cosmetics
Act, 1940 [” Act”), as well as the order of cognizance passed therein.
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2 Before I advert to the grounds of challenge urged and
pleaded by the petitioner, it is necessary to first set out few facts which
are necessary for disposal of this petition.
3 On 07.12.2013, the respondent inspected the business
premises of M/S J.M. Traders, Pharmaceutical Distributors, Pulwama,
and lifted sample of medicines including that of Molcin plus, Batch No.
T-3498 M having date of manufacture as April, 2013 and expiry date
March, 2016. The drug was purportedly manufactured by Jacksons
Laboratories Private Ltd. The sample was lifted for the purpose of test
and analysis as per the provisions of the Act and the Rules framed
thereunder.The sample picked up was divided into four portions and one
portion thereof was sent to the Government Analyst, Drug Laboratory,
Srinagar for test and analysis. The Government Analyst submitted its
report dated 27.12.2013 to the respondent in which the drug
tested/analysed was reported to be not of standard quality.The proprietor
of M/S J.M. Traders Pharmaceutical Distributors from whom the
sample was picked up was called upon to disclose the source of
purchase of the drug. In reply, M/S Traders Pharmaceutical Distributors
disclosed the name of Atlantic Distributors, Srinagar as the distributor
from whom he had purchased the drug in question. During further
investigation, Atlantic Distributors, Srinagar disclosed the name of J.K.
Pharma Agencies, and finally it came to be disclosed that the drug in
question was manufactured by Jacksons Laboratory Private Ltd.
4 Having found thus, the respondent issued a statutory
notice under Section 25(2) of the Act dated 16.01.2014 to the
manufacturing company Jacksons Laboratories Pvt. Ltd., and also
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informed it about the report issued by the Government Analyst, Drug
Laboratory, Srinagar. The manufacturer was also supplied a copy of the
report of the Government Analyst and a portion of the sample of the
drug which had failed in the Laboratory. The notice was responded to
by the manufacturing company through its reply dated 11.02.2014
wherein, while acknowledging the receipt of the report of the
Government Analyst and one sealed portion of the sample, the petitioner
in his capacity as Managing Director of the manufacturing company
disputed the report and claimed that the drug in question manufactured
by them met all the standards and that the report of the Government
Analyst was not correct. This was followed by another communication
of the petitioner dated 22.02.2014 wherein the petitioner again disputed
the correctness of the report submitted by the Government Analyst. The
petitioner issued a third communication on 24.02.2014 conveying to the
respondent specifically that the petitioner intended to adduce evidence
in controversion of the report of the analyst in terms of Section 25(4) of
the Act.
5 The respondent, after completing the legal formalities,
filed a formal complaint before the Court of Chief Judicial Magistrate,
Pulwama for initiating criminal prosecution against the petitioner herein
and three others. The cognizance of the complaint was taken by the
CJM on 16.11.2015 and simultaneously the process was issued for
securing the presence of the petitioner herein and three others before the
Court.The petitioner herein was served with the summons issued by the
CJM on 16.05.2016 and he caused appearance in the Court on
15.06.2016. Admittedly, by the time the petitioner appeared, the shelf
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life of the drug in question had already expired with effect from March
2016.The petitioner, though caused his appearance before the Court in
response to the summons issued, decided to challenge the proceedings
in the complaint and the order of taking cognizance by the CJM by way
of this petition by invoking the inherent jurisdiction of this Court vested
by Section 561-A CrPC on the ground that the CJM Pulwama had taken
the cognizance of the complaint which, on the face of it, was not
maintainable. It is submitted that the right of the petitioner to seek re-
examination/re-testing of the drug in question vested in him under
Section 25(3) and 25(4) of the Act was denied.It is further submitted
that the petitioner, upon receipt of the report of the Government
Analyst, had by a written communication intimated the respondent
within the prescribed period his intention to adduce evidence in
controversion of the report. The respondent, despite having
acknowledged the aforesaid communication, failed to get the sample re-
tested/re-analysed from the Central Drugs Laboratory as is mandated by
the provisions of sub-section (4) of Section 25 of the Act.It is also
submitted that the CJM failed to consider that the complaint against the
petitioner, Managing Director of the company incorporated under the
Companies Act, was not maintainable without the company being
arraigned as an accused. It is further submitted that the CJM failed to
appreciate that the liability of the Directors, if any, is vicarious and
cannot be fastened unless the company whose liability with regard to
manufacturing of the drug is direct and strict is also made an accused. It
has also been contended that the CJM failed to appreciate the mandatory
provisions of Section 34 of the Act which unequivocally prescribe that
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where an offence under the Act has been committed by a company, the
Director or any other person who is in charge of and responsible to the
company for the conduct of its business along with the company shall be
deemed to be guilty of the offence.
6 The complaint, as is apparent from its reading, does not
contain any averment to demonstrate that the petitioner was such a
person in charge of and responsible to the company for the conduct of
its business and, in the absence thereof, the petitioner could not have
been proceeded against by the respondent by filing the complaint.
7 Having heard learned counsel for the parties and perused
the material on record, the following questions arise for determination
in the present petition:
(i) Whether it is obligatory for the complainant to have the
drug sample, lifted under Section 23 of the Drugs and
Cosmetics Act, tested or analysed in the Central Drugs
Laboratory in terms of sub-section (4) of Section 25 of the
Act, where the person from whom the sample was taken or
the manufacturer disclosed under Section 18-A of the Act,
within twenty-eight days of receipt of the report of the
Government Analyst, notifies in writing to the complainant
that he intends to adduce evidence in controversion of the
report; and whether failure on the part of the complainant
to send the sample for such analysis vitiates the
proceedings in the complaint.
(ii) Whether, in a case where an offence under the Act is
alleged to have been committed by a company, a
complaint against the Managing Director alone is
maintainable without arraying the company itself as an
accused.
8 In support of his submissions with regard to question No.
1, Mr. Varut Gupta, learned counsel appearing for the petitioner, has
placed strong reliance upon the judgment of the Supreme Court in
Medicamen Biotech Ltd. v. Rubina Bose. He submits that once the
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accused notifies the Drug Inspector within the stipulated period that he
intends to adduce evidence in controversion of the report of the
Government Analyst, the Drug Inspector is under a statutory obligation
to have the sample sent to the Central Drugs Laboratory for re-analysis
and failure to do so, it is argued, deprives the accused of a valuable
statutory right.Learned counsel further submits that in the instant case
the petitioner had, through written communications, specifically
informed the respondent that he intended to challenge the report of the
Government Analyst and adduce evidence in controversion thereof.
Despite such intimation having been given within the prescribed
period, the respondent failed to send the sample to the Central Drugs
Laboratory for re-testing. It is further submitted that by the time the
petitioner appeared before the trial Court, the shelf life of the drug had
already expired in March 2016 and, therefore, the petitioner was
deprived of his valuable right to seek re-analysis of the sample.
According to learned counsel, such denial of the statutory right vitiates
the entire prosecution and renders the continuation of criminal
proceedings an abuse of the process of law.
9 Before adverting to the rival contentions, it would be
appropriate to set out Sections 23 and 25 of the Act herein-below:
Procedure of Inspectors:
(1) Where an Inspector takes any sample of a drug 1[or
cosmetic] under this Chapter, he shall tender the fair price
thereof and may require a written acknowledgment
therefor.
(2) Where the price tendered under sub-section (1) is
refused, or where the Inspector seizes the stock of any
drug or cosmetic under clause (c) of section 22, he shall
tender a receipt therefor in the prescribed form.
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(3) Where an Inspector takes a sample of a drug 1[or
cosmetic] for the purpose of test or analysis, he shall
intimate such purpose in writing in the prescribed form to
the person from whom he takes it and, in the presence of
such person unless he wilfully absents himself, shall divide
the sample into four portions and effectively seal and
suitably mark the same and permit such person to add his
own seal and mark to all or any of the portions so sealed
and marked:
Provided that where the sample is taken from premises
whereon the drug 1[or cosmetic] is being manufactured, it
shall be necessary to divide the sample into three portions
only:
Provided further that where the drug or cosmetic is made
up in containers of small volume, instead of dividing a
sample as aforesaid, the Inspector may, and if the drug or
cosmetic be such that it is likely to deteriorate or be
otherwise damaged by exposure shall, take three or four,
as the case may be, of the said containers after suitably ma
rking the same and, where necessary, sealing them.
(4) The Inspector shall restore one portion of a sample so
divided or one container, as the case may be, to the person
from whom he takes it, and shall retain the remainder and
dispose of the same as follows:-
(i) one portion or container he shall forthwith
send to the Government Analyst for test or analysis;
(ii) the second, he shall produce to the Court
before which proceedings, if any, are instituted in
respect of the drug or cosmetic; and
(iii) the third, where taken, he shall send to the
person, if any, whose name, address and other
particulars have been disclosed under section 18A.
(5) Where an Inspector takes any action under clause (c) of
section 22,-
(a) he shall use all despatch in ascertaining whether
or not the drug 1 or cosmetic contravenes any of the
provisions of section 18 and, if it is ascertained that
the drug or cosmetic does not so contravene,
forthwith revoke the order passed under the said
clause or, as the case may be, take such action as
may be necessary for the return of the stock seized;
(b) if he seizes the stock of the drug or cosmetic he
shall as soon as may be inform a Judicial Magistrate
and take his orders as to the custody thereof;
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(c) without prejudice to the institution of any
prosecution, if the alleged contravention be such that
the defect may be remedied by the possessor of the
drug 4[or cosmetic]; he shall, on being satisfied that
the defect has been so remedied, forthwith revoke
his order under the said clause.
(6) Where an Inspector seizes any record, register,
document or any other material object under clause (cc) of
sub-section (1) of section 22, he shall, as soon as may be,
inform 6[a Judicial Magistrate] and take his orders as to the
custody thereof
25. Reports of Government Analysts:
(1) The Government Analyst to whom a sample of any
drug or cosmetic has been submitted for test or analysis
under sub-section (4) of section 23, shall deliver to the
Inspector submitting it a signed report in triplicate in the
prescribed form.
(2) The Inspector on receipt thereof shall deliver one copy
of the report to the person from whom the sample was
taken 4 [and another copy to the person, if any, whose
name, address and other particulars have been disclosed
under section 18A, and shall retain the third copy for use
in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by a
Government Analyst under this Chapter shall be evidence
of the facts stated therein, and such evidence shall be
conclusive unless the person from whom the sample was
taken or the person whose name, address and other
particulars have been disclosed under section 18A has,
within twenty -eight days of the receipt of a copy of the
report, notified in writing 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.
(4) Unless the sample has already been tested or analysed
in the Central Drugs Laboratory, where a person has under
sub-section (3) notified his intention of adducing evidence
in controversion of a Government Analyst’s report, the
Court may, of its own motion or in its discretion at the
request either of the complainant or the accused cause the
sample of the drug or cosmetic produced before the
Magistrate under sub-section (4) of section 23 to be sent
for test or analysis to the said Laboratory, which shall
make the test or analysis and report in writing signed by or
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Laboratory the result thereof, and such report shall be
conclusive evidence of the facts stated therein.
(5) The cost of a test or analysis made by the Central
Drugs Laboratory under sub-section (4) shall be paid by
the complainant or accused as the Court shall direct.
10 From a reading of Section 23, it clearly comes out that a
sample of a drug taken by the Drug Inspector from any premises
wherein any drug or cosmetic is being manufactured, sold or stocked or
exhibited or offered for sale or distributed is required to be divided into
four portions and effectively sealed and suitably marked in the presence
of a person from whom it has been taken, provided that where the
sample has been taken from the premises whereon the drug or cosmetic
is being manufactured, the sample would be divided into three portions
only. As is evident from sub-section (4) of Section 23 of the Act, the
four portions of a sample so provided shall be disposed of in the
following manner:
(i) one portion of the drug shall be sent to the person from
whom it has been taken.
(ii) the second portion shall be sent to the Government
Analyst for test or analysis;
(iii) the third portion shall be produced before the Court
before which proceedings, if any, are instituted in respect of
the said drug;
(iv) the fourth portion shall be sent to the person, if any,
whose name, address or other particulars have been
disclosed under Section 18-A of the Act i.e. the
manufacturer.
11 Obviously there is some object or purpose in handing over
a portion of the sample to the person from whom it has been taken and
to the manufacturer whose name has been disclosed under Section 18-
A of the Act. There could be no better reason except that the person
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from whom the sample has been taken or the manufacturer as the case
may be are in a position to get the portion of sample tested or analysed
from an independent drug laboratory and make an informed decision
for proceeding further in terms of Section 25 of the Act.
12 As is evident from reading of Section 25 of the Act in its
entirety, the Government Analyst to whom a portion of the sample has
been sent for test analysis shall deliver to the Inspector concerned a
signed report of test or analysis in triplicate in the prescribed format.
One copy of the report shall be served upon the person from whom the
sample was taken and one copy of the report shall be given to the
person whose name, address or particulars are disclosed under Section
18-A of the Act i.e. the manufacturer. The third copy, of course, would
be retained by the Inspector for use in any prosecution in respect of the
sample. Sub-section (3) of Section 25 makes the report of the
Government Analyst conclusive evidence of the facts stated therein
unless the person from whom the sample was picked up and the
manufacturer whose name was disclosed under Section 18-A has,
within 28 days of receipt of a copy of the report, notified in writing his
intention to adduce evidence in controversion of the report.
13 It is thus abundantly clear that in case such person does
not signify his intention to adduce evidence in controversion of the
report of the Government Analyst within the prescribed period, the
report of the Government Analyst shall be conclusive evidence of the
facts stated therein. However, if he/she notifies in writing his/her
intention to adduce evidence in controversion of the report, such person
shall be well within his right to controvert the report by leading
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evidence in defence. Such evidence could be a report of some other
registered and standard Drug Laboratory or some other form of
scientific evidence holding contrary to what has been found by the
Government Analyst. Sub-section (4) of Section 25 is a significant
provision which requires careful reading and proper interpretation
keeping in view the context of the preceding sub-section and Section
23. A careful reading of sub-section (4) would throw out the following
position:
“If the sample has already been tested or analysed in the
Central Drugs Laboratory, then there is no requirement to
send it again to the same laboratory for testing and analysis
and such report shall be taken as conclusive evidence of the
facts stated therein. However, where the initial report is by
the Government Analyst and the person from whom the
sample has been lifted or the manufacturer, as the case may
be, has signified his intention in writing to adduce evidence
in controversion of the report within the stipulated period,
the Inspector (complainant), shall have the option to make a
request to the Court for sending the sample retained for the
Court for testing and analysis by the Central Drugs
Laboratory”.
14 The retesting or re-analysis of the sample which stood
already tested or analysed by the Government Analyst is always on the
request of either the complainant or the accused. The Court before
which the prosecution is launched is also empowered to act suo motu
and get the sample produced before it tested or analysed by the Central
Drugs Laboratory.To say that the moment the accused notifies his
intention in writing to the Inspector or the Court concerned that he
intends to adduce evidence in controversion of the report, it becomes
obligatory on the Drug Inspector (complainant) to pray to the Court to
have the sample produced before it retested or re-analysed by the
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Central Drugs Laboratory is an interpretation not supported by the plain
language of sub-section (4) of Section 25. The words “request” and
“discretion” used in sub-section (4) are not redundant and convey a
definite meaning. Even if a request is made by the complainant or the
accused for seeking retesting or re-analysis of the sample produced
before the Court, it always lies in the discretion of the Court to accede
to or decline such request. Undoubtedly, the exercise of discretion by
the Court would be tested on the touchstone of the parameters laid
down for the exercise of judicial discretion.
15 Be that as it may, the plain language of Section 25,
understood in the context, makes it abundantly clear that retesting or re-
analysis of the drug sample produced before the Court by the
prosecution can only be on the request of either the accused or the
complainant. The accused to whom the portion of the sample lifted
from the concerned premises has been sent is well within his right to
get that portion of the sample tested or analysed from a competent Drug
Laboratory so as to make an informed decision as to whether he should
request the Court for retesting or re-analysis of the portion of the
sample with the Court by the Central Drugs Laboratory or to controvert
the report of the Government Analyst by leading evidence in defence.If
the accused makes a choice of getting it retested or re-analysed, he
definitely runs the risk of the sample being found not of standard by the
CDL and concurring with the report of the Government Analyst and,
therefore, closing all doors of defence for such accused, for the report
of the Central Drugs Laboratory would be conclusive evidence of the
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facts stated therein and the accused would be left with nothing to offer
in defence to controvert such report.
16 It is, therefore, obvious that in case the accused, after
having got the portion of the sample supplied to him tested or analysed
by a competent Drug Laboratory, is of the view that the report of the
Government Analyst suffers from lacunae and is not correct, he may
take the risk of requesting the Court to get the portion of the sample
produced before the Court tested or analysed by the Central Drugs
Laboratory. Similarly, the complainant can also make a choice because
if he, without application of mind, seeks retesting or re-analysis of the
portion of the drug produced before the Court from the Central Drugs
Laboratory, it may be possible that the Central Drugs Laboratory gives
a report contrary to the one given by the Government Analyst. In such
situation the prosecution would fail at its inception. The provisions of
sub-section (4) of Section 25 are, thus, required to be understood in the
aforesaid manner.
17 In view of the aforesaid discussion, my answer to
Question No. 1 is that it is not obligatory for the complainant
(Inspector) to have the sample of the drug lifted under Section 23 of the
Act retested or re-analysed by the Central Drug Laboratory in terms of
sub-section (4) of Section 25 of the Act where the person from whom
the sample was taken or the manufacturer has merely notified his
intention to adduce evidence in controversion of the report of the
Government Analyst.
18 In the instant case it is seen that the petitioner had not only
notified to the Inspector that he intends to lead evidence in
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controversion of the report but he had, by his communication dated
24.02.2014, also made an indirect request to the Drug Inspector
concerned for getting the portion of the sample retained for production
before the Court to be retested or analysed by the Central Drug
Laboratory. There is, however, no direct request made either to the
Drug Inspector or to the Court but the lines in the communication dated
24.02.2014 “also please note that we have rebutted the report of the
Government Analyst under Section 25(4) of the Act and shall revert
back after receipt of the test report from CDL Calcutta” clearly signify
not only the intention of the petitioner to controvert the report of the
Government Analyst but also a latent request to have the test conducted
by CDL Kolkata.
19 In the instant case the Drug Inspector did not act with
promptitude and did not immediately and without any waste of time
launch prosecution before the Court, nor did the Drug Inspector take
any step to request the Court for causing the portion of the drug
retained for the Court to be tested or analysed by the Central Drugs
Laboratory. The shelf life of the drug expired in March 2016. The
petitioner could appear before the trial Court upon being served with
the summons only on 15.06.2016 and, therefore, was deprived of his
right to make a request to the Court for getting the retained portion of
the sample of the drug tested or analysed from the Central Drug
Laboratory.In these circumstances, it can be said that the petitioner,
who intended to have the sample of the drug retained for the Court to
be tested or analysed by the Central Drug Laboratory, could not get that
opportunity. The Drug Inspector concerned, who had already been
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intimated and requested in this regard, failed to ensure that the retained
portion of the sample for the Court is put to test or analysed by the
Central Drugs Laboratory during the currency of its shelf life.
20 For the foregoing reasons, this petition succeeds on this
solitary ground, which obviates the necessity of determining Question
No. 2 formulated in paragraph 7 of the judgment. Consequently, the
criminal proceedings in the complaint titled State through Drug
Inspector, Pulwama v. J.M. Traders and Pharmaceutical Distributors
and Others, pending before the Court of the learned CJM, Pulwama
under Section 18(a)(i) of the Act, along with the order dated
16.11.2015 taking cognizance and issuing process thereon, are hereby
quashed.
(SANJEEV KUMAR)
JUDGE
Srinagar
09 .03.2026
Sanjeev
Whether the order is speaking: Yes
Whether the order is reportable:Yes
