Jammu & Kashmir High Court
Reserved On: 27.02.2026 vs State Of Jammu And Kashmir on 9 March, 2026
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
2026:JKLHC-JMU:748
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRMC No.402/2013
Reserved on: 27.02.2026
Pronounced on: 09 .03.2026
Uploaded on: 09.03.2026
August Remedies Village-Ogli, Nahan Road, Kala Amb,
Distt. Sirmor-1730033 (H.P.) India through its Parnter
Sh. Sanjay Taneja, Age 45 years S/o sh. M.L.Taneja.
...Petitioners(s)
Through:-
Mr. Sachin Gupta, Advocate.
Versus
1. State of Jammu and Kashmir, Through Deputy Controller,
C/o Office of Drugs & Food Control Organization Muthi,
Jammu.
2. Drug Inspector, Jammu (Zone-V),
Sh.Gagan Bhardwaj,
C/o Office of Drugs & Food Control Organization, Muthi,
Jammu
....Respondents
3. Surjit Singh
S/o Shukar Singh
C/o M/s Shiv Shakti Medicos,
Sure Chak, Phallan Mandal, Jammu.
4. Koushal Jain (Competent Person)
C/o M/s J.K.Pharma,
Shalimar Road, Jammu.
5. Pankaj Pharma,
C/o B-11, First Floor, Commercial Complex,
Dr. Mukherjee Nagar, delhi-110009
Through its Proprietor/Partner
6. Amro Pharma,
C/o 105-A, 29/30, Jaina House,
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Commercial Complex, Dr. Mukherjee Nagar,
Delhi-110009
Through its Proprietor/Partner
...Proforma-Respondent(s)
Through:- Mr. Raman Sharma, AAG with
Ms. Jagmeet Kour, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. The petitioner invokes inherent criminal jurisdiction vested in
this Court under Section 561-A of the Code of Criminal
Procedure, 1898, which was then in force and now repealed, and
seeks to challenge proceedings in complaint titled State through
Drug Inspector v. Surjit Singh and others, pending trial before
the learned Chief Judicial Magistrate, Jammu [“the trial Court”].
2. Before we advert to the grounds of challenge urged by Mr.
Sachin Gupta, learned counsel appearing for the petitioner, we
deem it appropriate to notice, briefly, few facts, as are germane
to the disposal of this petition. The respondent No.2, in his
capacity as Drug Inspector appointed under Drugs and
Cosmetics Act, 1940 [“the Act”] and duly empowered by the
Government in terms of SRO 288 dated 28.07.1989, lifted
samples of Drug “Tab CEFAM-250” (Batch No.349, Mfd date-
09/2009, Exp. Date-08/11, on 22.02.2010 from the premises of
M/s Shiv Shakti Medicos, situated at Sure Chak, Phallan
Mandal, Jammu.
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3. The sample was picked up during random/routine inspection
carried out by respondent No.2. The drug was found to have
been manufactured by the petitioner-August Remedies, Ogli
Nahan Road, Kala Amb-173033 (Himachal Pradesh). He filled
up Form No.17 on spot and intimated to M/s Shiv Shakti
Medicos about its intention of lifting sample for the purposes of
test and analysis from the government analyst i.e. CDFL,
Jammu. Respondent No.2 divided the lifted sample of the drug
in question into four portions and sealed them as per the
procedure under the Act. All the four portions were sealed in the
presence of proprietor of M/s Shiv Shakti Medicos, accused
No.1 in the complaint. Copy of Form No.17 along with one
sealed portion of the sample of the drug in question was handed
over to accused No.1 in the complaint against proper receipt.
Price of the drugs lifted was also tendered to the accused No.1.
One portion of the sample of the lifted drug in question was sent
to the government analyst for examination and analysis by
respondent No.2. The government analyst sent his report dated
19.07.2010 to respondent No.2 and, as per the report, the sample
portion of the drug in question, which was subjected to analysis
and examination, was declared not to be of standard quality as
defined in the Act. The report further declared the sample
portion of the drug having failed in assay of Cefuroxime.
Accordingly, respondent No.2 informed accused No.1, from
whom sample was lifted, about the report of the government
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analyst and also provided him a copy thereof. He was also asked
to stop sale of the drug in question as also to disclose the name
of persons/Company from whom he had purchased such drug.
Accused No.1 disclosed that he had purchased the drug in
question from respondent No.2 i.e. M/s J.K.Pharma, who, in
turn, informed that he had purchased it from accused No.3 i.e.
Pankaj Pharma, Delhi. Both, J.K. Pharma and Pankaj Pharma,
accused No.2 and 3 were also given notice along with report of
government analyst, as warranted by law. They were also asked
to stop the sale of drug in question.
4. Accused No.3, M/s Pankaj Pharma, Delhi informed respondent
No.2 that he had purchased the drug in question from the
distributor i.e. accused No.4-Amro Pharma, Delhi. Resultantly,
respondent No.2 issued notice under Section 18-A of the Act to
M/s Amro Pharma Delhi and also informed it about the report of
the government analyst by providing him copy of the said report
as warranted under law. On receipt of particulars of
manufacturer from the accused No.4 in the complaint,
respondent No.2 issued notice dated 28.08.2010 to the petitioner-
manufacturing company through registered post and informed it
about the test report of the drug in question manufactured by it.
5. Petitioner herein being the manufacturing company of the drug
in question was directed to immediately furnish sale and stock
record of the drug in question with a further direction to recall
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the drug from the market and to furnish list of the dealers to
whom the drug in question had been supplied. Consequently,
respondent No.1, after seeking sanction from the competent
authority, filed the complaint before the trial Court.
6. All the accused including the petitioners were summoned. The
petitioner herein appeared in the trial Court pursuant to the
summons issued on 10.07.2012 and by that time the shelf life
period of drug in question already stood expired w.e.f. August,
2011.
7. Feeling aggrieved, the petitioner first challenged the proceedings
on the complaint filed by respondent No.2, by filing a criminal
revision before the 2nd Additional Sessions Judge, Jammu, which
revision petition came to be dismissed by the Revisional Court
vide its order dated 05.08.2013. This is how the petitioner is
before this Court with the same grievance, he had projected
before the Revisional Court.
8. Proceedings in the complaint filed by respondent No.2, which is
pending trial before the trial Court, are challenged inter alia on
the following grounds:
i) That as required by Section 25(3) and Sectio 25(4)
of the Act read with Section 23(4)(iii), supply of
one portion of the sample of the drug lifted for
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analysis to the Manufacturer, so as to give him an
opportunity to controvert the report of the
government analyst, is sine qua non for initiating
proceedings on a complaint filed for commission of
offences under Section 27(d) read with Section
18(a)(i) of the Act.
ii) That the procedure followed by the government
analyst has not been carried out as per the standard
prescribed test, in that, the drug in question being a
United State Pharmacopeia drug ought to have been
tested, examined and analyzed according to the
guidelines issued by the United State Pharmacopeia.
9. Per contra, Mr. Raman Sharma, learned AAG appearing for
respondent Nos. 1 and 2, would argue that the issues which are
sought to be raised by the petitioner in this petition are
essentially mixed questions of fact and law, which are required
to be determined by the trial court on the basis of evidence,
which may be led by the parties before it and that this Court in
the exercise of its inherent criminal jurisdiction would not go
into these questions of fact and determine as to whether the
prescribed tests were applied by the government analyst while
examining and analyzing the drug in question.
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10. With regard to the failure of respondent No.2 to supply portion
of the sample to the petitioner, Mr. Raman Sharma would submit
that whether or not a portion of the sample lifted drug was
supplied to the petitioner is again a question of fact, which
would require evidence for determination and such evidence can
only be led during trial. He would, therefore, pray for dismissing
this petition having raised disputed questions of fact, the
determination whereof falls within the domain of the trial Court.
11. Having heard learned counsel for the parties and perused the
material on record, it is necessary to first take notice of few
salient provisions of the Act, which are relevant in the context of
the controversy raised in this petition. The Act, as its preamble
reveals, is enacted to regulate import, manufacture, distribution
and sale of drugs and cosmetics. The main object of the Act
obviously is to prevent sub-standard drugs to be manufactured
and sold in the market presumably for maintaining high
standards of medical treatment.
12. Chapter-IV of the Act, in particular, deals with manufacture, sale
and distribution of drugs and cosmetics. Section 16, which may
be relevant for our purposes, is set out below:
“16. Standards of quality. –(1) For the purposes of this Chapter,
the expression “standard quality” means–
(a) in relation to a drug, that the drug complies with the
standard set out in the Second Schedule, and
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(b) in relation to a cosmetic, that the cosmetic complies with
such standard as may be prescribed.
(2) The Central Government, after consultation with the Board and
after giving by notification in the Official Gazette not less than three
months’ notice of its intention so to do, may by a like notification
add to or otherwise amend 5[the Second Schedule] for the purposes
of this Chapter, and thereupon the Second Schedule shall be deemed
to be amended accordingly.”
13. From a plain reading of Section 16, it is evident that a drug
would be of standard quality if it complies with standards set out
in the Second. The Second Schedule enumerates different classes
of drugs and provides for the standards to be complied with.
Clause 5(a) of Second Schedule pertains to the drugs included in
Indian Pharmacopoeia and prescribed standards to be complied
with and such standards are as prescribed in Indian
Pharmacopoeia for the time being in force. In respect of the
drugs for which standards are not specified in the Indian
Pharmacopoeia for the time being in force, the same shall be
determined as per the standards, which were prescribed in the
Indian Pharmacopoeia immediately preceding the Indian
Pharmacopoeia in force. Clause 5(b) of the Second Schedule
deals with drugs not included in the Indian Pharmacopoeia but
which are included in the official pharmacopoeia of any other
Country and it provides that standards of identity, purity and
strength of such drugs shall be determined as per the edition of
such official pharmacopoeia of any other country etc etc.
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14. Section 23 of the Act deals with procedure to be followed by the
Inspectors of Drugs while taking out a sample of drug for the
purposes of test or analysis. Section 23 reads thus:-
“23. Procedure of Inspectors.–(1) Where an Inspector
takes any sample of a drug 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.
(3) Where an Inspector takes a sample of a drug 2[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 willfully 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 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
marking 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 dispatch in ascertaining whether
or not the drug 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;
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(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;
(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 1[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 a Judicial Magistrate and take his orders as to the
custody thereof.”
15. From a reading of Section 23, it clearly comes out that where an
Inspector lifts any sample of drug from any premises, whether it
is of manufacturer or seller, he shall tender the fair price of such
lifted drug sample. The Inspector shall be under an obligation to
intimate to the Incharge of the premises concerned the purpose
of lifting of the drug sample in writing in the prescribed Form
and thereafter shall divide the sample into four portions and
effectively seal and suitably mark the same and permit the
person from whose premises the sample had been lifted to add
his own seal and mark to all or any of the portions so sealed and
marked. However, where the sample is picked up from the
premises where the drug is being manufactured, the lifted sample
shall be divided into three portions only. Upon apportionment of
the lifted sample, Inspector shall handover one portion of the
sample to the person from whom the sample had been picked up
and shall retain the remainder and dispose of the same in the
following manner:-
i) One portion shall be sent to government analyst for
test or analysis;
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ii) Second portion shall be produced before the Court
before which proceedings, if any, are initiated in
respect of such drug; and
iii) The third portion shall be sent to the manufacturer
where it has not been lifted from the premises of the
manufacturer, and the particulars whereof are
disclosed under Section 18A of the Act.
16. Section 25 of the Act is the next important Section for our
purposes and the same is set out below:-
“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 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 under the authority of,
the Director of the Central Drugs 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.”
17. As is clearly prescribed in Section 25, the government analyst,
who has received the sample from the Drug Inspector concerned
for test or analysis under Section 23(4) of the Act, shall deliver
its signed report in triplicate in the prescribed form to the
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Inspector. The next step is that the Inspector shall deliver one
copy of the report to the person from whom sample was taken
and another copy to the person, if any, whose name and address
and other particulars have been disclosed under Section 18A i.e.
manufacturer. He shall retain third copy for use in any
prosecution in respect of the sample. Section further provides
that if any document purporting to be a report signed by the
government analyst under Chapter-IV is tendered in the Court of
law, the same shall be admissible evidence of the facts stated
therein and such evidence shall be conclusive, unless, of course,
person from whom sample was taken or the manufacturer
referable to Section 18A has within 28 days of receipt of copy of
analysis report notifies in writing to the Inspector or the Court
concerned that he intends to adduce evidence in controversion of
the report.
18. If the person from whom the sample was taken or manufacturer,
as the case may be, gives such intimation of intention to adduce
evidence in controversion of government analyst report, the
Court where the prosecution is launched, may, of its own motion
or in its discretion, on the request of either of the complainant or
the accused, cause the sample of the drug produced before the
Court under Section 23(4) to be sent for test or analysis by the
Central Drug Laboratory. The drug sample shall not be sent if
the same has already been tested or analysed by the Central Drug
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Laboratory. Section further provides clearly that once report
from the Central Drug Laboratory comes, same shall be the
conclusive evidence of fact stated therein and the parties shall
not be entitled to dispute the same. This is the scheme of things
to be done before launching the prosecution against the accused
found guilty of commission of offence under Chapter-IV of the
Act.
19. From a plain reading of Sections 23, 24 and 25, following
procedural requirements for launching prosecution under
Chapter-IV are deducible:-
i) Inspector within the local limits of the area for which he is
appointed is empowered to take any sample of drug or
cosmetic under Chapter-IV of the Act after tendering fair
price thereof to the person from whom it is taken.
ii) Inspector, who takes a sample of drug or cosmetic for the
purposes of test or analysis shall intimate such purpose in
writing in the prescribed form to the person from whom he
has lifted it.
iii) The lifted sample shall, in the presence of such person, be
divided into four portions and effectively sealed and
suitably marked. However, if the sample is lifted from the
premises of the manufacturer, it shall be divided into three
portions only.
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iv) One portion of the sample, so divided, shall be
restored/handed over to the person from whom it has been
taken and the remaining three portions shall be retained by
the Inspector to be disposed in the following manner:-
a) One portion shall be sent to the government analyst for
test and analysis;
b) Second portion shall be produced in the court before
which proceedings, if any, are instituted in respect of
such drug;
c) Third portion shall be sent to the person, if any, whose
name and other particulars are disclosed under Section
18A of the Act i.e. manufacturer.
d) After the signed report in triplicate in the prescribed
form from the government analyst in respect of the
sample sent to him for test or analysis is received, the
Inspector shall deliver one copy of the report to the
person from whom it has been taken and another copy
to the person whose name and other particulars have
been disclosed under Section 18-A i.e. the
manufacturer. He shall retain the third copy of the
analysis/report for use in any prosecution in respect of
the sample.
e) The government analyst’s report tendered in evidence
shall be conclusive evidence of the facts stated therein
unless the person from whom the sample was taken or
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the manufacturer within 28 days of receipt of copy of
the report notifies in writing to the Inspector or the
Court that he intends to adduce evidence in
controversion of the report.
f) If notice of intention to adduce evidence in
controversion of the report is given by the person
aforesaid, the Court may of its own motion or in its
discretion on the request of either of the complainant or
the accused, cause sample of the drug produced before
it by the Inspector under Section 23(4) of the
Act to be sent for test or analysis to the Central Drug
Laboratory, provided it is not already
tested or analyzed by such laboratory. The report of the
Central Drug Laborary given in this manner shall be
the conclusive evidence of the facts stated therein.
20. In view of the aforesaid position emerging from the scheme
underlying Sections 23 and 25 of the Act, it is not debatable that
as and when a sample of drug is lifted by the Inspector from the
premises where it is sold or manufactured, it shall, apart from
complying with other formalities, divide the sample into four or
three portions, as the case may. Four portions in case the sample
is lifted from a person other than the manufacturer and three
where sample has been lifted from the manufacturer. It is, thus,
clear that if the sample is lifted from the premises of a person
other than the manufacturer, it has to be divided into four
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portions or containers, as the case may. One portion has to be
delivered to the person from it is lifted; one to be sent to the
government analyst for test and analysis and the one is required
to be sent to the manufacturer. The fourth one is to be retained to
be produced in the Court where the proceedings in respect of the
drug are filed by the Inspector/complainant.
21. Section 25(2) unequivocally prescribes that the government
analyst’s report received by the Inspector in respect of the
sample of Drug alone is to be furnished to the person from
whom it has been lifted or to the manufacturer as the case may
be. There is, thus, no statutory obligation on the Inspector to
send the portion of sample along with the report of the
government analyst to be served upon the manufacturer in terms
of section 25(2) of the Act. As is clearly provided in sections
23(4)(iii), the third portion of the lifted sample is required to be
sent to the manufacturer simultaneously with sending of one
portion to the government analyst for test and analysis and this is
for a purpose and the purpose is to enable the manufacturer to
put that portion of the sample to test and analysis by an
independent Drug Laboratory, so that if the sample fails and an
adverse report from the government analyst comes, he may make
an informed decision as to whether he should adduce evidence in
controversion of the report or take an appropriate defence in the
complaint that may be filed by the Inspector on the basis of such
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report of the government analyst. I am, therefore, not in
agreement with the learned counsel for the petitioner that along
with the report of the government analyst, a sample portion is
also required to be provided to the manufacturer. The supply of
portion of the lifted sample before the report of analyst is
received is compliance of Section 23(4)(iii) and a precursor for
the manufacturer to get the lifted sample tested and analyzed by
the drug laboratory of his choice.
22. As is evident from a reading of Subsection (3) of Section 25 of
the Act, the report of the government analyst in respect of the
sample of drug tested and analyzed by it submitted to the
Inspector concerned is conclusive evidence of the facts stated
therein, if same is not controverted by the person from whom the
sample had been lifted or the manufacturer, as the case may be.
The procedure for controverting the report is that such person
must within 28 days of receipt of copy of the report notify to the
Inspector or the Court concerned that he intends to adduce
evidence in controversion of the report. He may not seek
reference of the sample produced before the Court concerned by
Inspector under Section 23 of the Act and choose to contest the
report of the government analyst by adducing evidence in
controversion thereof. Sending of the sample to the Central Drug
Laboratory in a case where it has been tested or analyzed by the
government analyst cannot be claimed either by the complainant
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or the accused (Manufacturer), as a matter of right. It is left to
the discretion of the Court to either suo moto send such sample
to the Central Drug Laboratory for test or examination or it may
in its discretion send the same for test and analysis to the Central
Drug Laboratory on the request of either of the complainant or
the accused. However, once the Court on its own motion or at
the request of the complainant or the accused, as the case may
be, sends the drug sample to the Central Drug Laboratory for test
and analysis and the report comes, such report, in terms of
Subsection (4) of Section 25 shall be the conclusive evidence of
the facts stated therein and the complainant or the accused shall
be left with no discretion or option but to accept it without any
protest or objection.
23. Viewed, thus, we can say that even in a case where the person
from whom the sample of drug is lifted or manufacturer of such
drug, as the case may be, has not exercised its intention to
adduce evidence in controversion of the report within the
prescribed period, he shall not be debarred from contesting the
complaint and leading its defence but he shall be precluded from
adducing evidence in controversion of the report.
24. Similarly, notwithstanding that the Court may have refused to
refer the portion of sample produced before it by the Inspector
under Section 23(4) to the Central Drug Laboratory for test and
analysis, report of the analyst shall be liable to be controverted
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by the accused by adducing its evidence and such evidence could
be the report from another Drug Laboratory or some scientific
evidence. The provisions of Sections 23 and 25 are, therefore,
required to be understood in the manner aforesaid.
25. Now coming to the case on hand, it is seen that though at the
time of lifting of sample of the drug in question, the Inspector
divided it into four portions in the presence of accused No.1 i.e.
Shiv Shakti Medicos but it is not discernible from reading of the
complaint that a portion of such sample lifted from the premises
of M/s Shiv Shakti Medicos was ever sent to or supplied to the
manufacturer whether before or simultaneously with government
analyst report. As a matter of fact, the notice to the manufacturer
was given only after his particulars in terms of section 18A of
the Act were disclosed by the Amro Pharma i.e. accused No.4.
There is no whisper in the complaint that the portion of sample
retrained and meant for manufacturer was ever supplied to him.
On the contrary, it is a specific case of the petitioner that he was
never supplied with a portion of the sample lifted from the
premises of M/s Shiv Shakti Medicos. It is, thus, beyond any
pale of doubt that a valuable right of the petitioner to get the
sample tested from an independent Drug Laboratory so as to
make an informed decision to adduce evidence in controversion
of the report of the government analyst relied upon by the
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complainant, was taken away and as such a serious prejudice
was caused to it.
26. Hon’ble Supreme Court in paragraph Nos. 7, 8 and 9 of
Laborate Pharmaceuticals India Ltd. and others v. State of
Tamil Nadu, (2018) 15 SCC 93 has observed thus:
“7. A reading of the provisions of Section 23(4) and 25
of the Act would indicate that in the present case the sample
having been taken from the premises of the retailer had to be
divided into four portions; one portion is required to be iven
to the retailer; one portion is required to be sent to the
Government Analyst and one to the Court and the last one to
the manufacturer whose name, particulars, etc. is disclosed
under Section 18A of the Act. In the present case, admittedly,
one part of the sample that was required to be sent to the
appellant(manufacturer) under Section 23(4)(iii) of the Act
was not sent. Instead, what was sent on 22nd March, 2012
was only the report of the Government Analyst. When the
part of the sample was not sent to the manufacturer, the
manufacturer could not have got the same analyzed even if
he wanted to do so and, therefore, it was not in a position to
contest the findings of the Government Analyst. In the
present case, the sample was sent to the appellant-
manufacturer on 10th August, 2012 and on 13th September,
2012 the appellant had indicated its desire to have another
part of the sample sent to the Central Laboratory for re-
analysis. This was refused on the ground that the aforesaid
request was made much after the stipulated period of 28
days provided for in Section 25(3) of the Act.
8. The cognizance of the offence(s) alleged in the
present case was taken on 4th March, 2015 though it appears
that the complaint itself was filed on 28th November, 2012.
According to the appellant the cough syrup had lost shelf life
in the month of November, 2012 itself. Even otherwise, it is
reasonably certain that on the date when cognizance was
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taken, the shelf life of the drug in question had expired. The
Magistrate, therefore, could not have sent the sample for
reanalysis by the Central Laboratory.
9. All the aforesaid facts would go to show that the
valuable right of the appellant to have the sample analysed
in the Central Laboratory has been denied by a series of
defaults committed by the prosecution; firstly, in not sending
to the appellant-manufacturer part of the sample as required
under Section 23(4)(iii) of the Act; and secondly, on the part
of the Court in taking cognizance of the complaint on 4th
March, 2015 though the same was filed on 28th November,
2012. The delay on both counts is not attributable to the
appellants and, therefore, the consequences thereof cannot
work adversely to the interest of the appellants. As the
valuable right of the accused for re-analysis vested under
the Act appears to have been violated and having regard to
the possible shelf life of the drug we are of the view that as
on date the prosecution, if allowed to continue, would be a
lame prosecution.”
27. That apart, the sample was received by the government analyst
on 23.02.2010 and the government analyst submitted its report to
the Inspector on 19.07.2010 i.e. after nearly five months,
whereas Rule 45 of the Drugs and Cosmetics Rules, 1945 fixes a
timeline of sixty days for the government analyst to furnish its
report of the result of test or analysis from the date of receipt of
the sample. This timeline was, however, inserted in Rules vide
GSR 103(E) dated 02.02.2017 w.e.f. 02.02.2017 and, therefore,
may not be applicable to the case on hand. However, even in the
absence of a given timeline, it is the obligation of the
government analyst to act with promptness and furnish report of
the test or analysis within reasonable time so that the accused are
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in a position to approach the Court concerned in time i.e. before
the shelf life of drug in question expires for seeking reference of
the drug sample produced in the Court for test and analysis of
the Central Drug Laboratory after notifying their intention to
adduce evidence in controversion of the report of the
government analyst.
28. Although, the complainant-Inspector has, in his complaint,
averred that he issued notice to the accused-manufacturer i.e.
petitioner herein on 28.08.2010 through registered post
informing the petitioner about the test report of the drug in
question manufactured by it, yet there is no proof placed on
record that the report was sent on correct address and was
actually received by the petitioner. It is unequivocal assertion of
the petitioner before me that it has never received the report of
the government analyst, as is stated to have been sent to it by the
Drug Inspector vide communication dated 28.08.2010. It is
submitted that Company came to know about the report of the
government analyst only when pursuant to the summons issued
by the trial Court on 10.07.2012, the petitioner appeared before
the trial Court and was confronted with the report of the
government analyst. Copy of the communication dated
28.08.2010 whereby the Drug Inspector concerned claimed to
have sent the report of the government analyst to the petitioner
would show that it has been addressed to August Remedies,
Ogli-Nahan Road, Kala Amb (H.P.), which, on the face of it, is
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not a complete address. District where the manufacturing unit of
the petitioner is situated is not indicated. Receipt of the
registered letter also indicates the same address, whereas from all
the communication on record and the documents in possession of
the accused No.1, complete address of the petitioner herein is
Auguest Remedies, Vill. Ogli, Nahan Road, Kala Amb, District
Sirmour (H.P.).
29. In view of the aforesaid, a serious doubt is created in the mind of
the Court with regard to the actual service of the report of the
government analyst on the petitioner and if that be the case, a
vital right of the petitioner to intimate its intention to adduce
evidence in controversion of the report of the government
analyst within a period of 28 days of the receipt of the
government analyst’s report is taken away and clearly violated
and denied.
30. That apart, failure of the complainant to supply a portion of the
lifted sample to the petitioner has also deprived the petitioner of
its right to get it tested or analyzed from any independent
laboratory and making an informed decision to adduce evidence
in controversion of the report of the government analyst and
conveying its intention to do so to the Drug Inspector or the
Court. It was also deprived of its right to apply to the Court for
sending the retained portion of the sample for its test or analysis
to the Central Drug Laboratory.
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31. Viewed from any angle, the complaint filed by respondent No.2
was not maintainable in law and, therefore, proceedings taken in
such complaint are completely vitiated. Allowing such complaint
to proceed and putting the petitioner to trial would be sheer
abuse of the process of law and, therefore, cannot be
countenanced.
32. For all these reasons, I find merit in this petition and the same is,
accordingly, allowed. The complaint filed by respondent No.2,
pending trial before the Court of Chief Judicial Magistrate,
Jammu along with all proceedings taken thereon is quashed.
(Sanjeev Kumar)
Judge
JAMMU
09.03.2026
Vinod Whether the order is speaking : Yes
Whether the order is reportable: No