27.02.2026 vs State Of Jammu And Kashmir on 9 March, 2026

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    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,
     CRMC No.402/2013                     2
    
    
    
    
                                                                              2026:JKLHC-JMU:748
    
    
    
    
              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

    SPONSORED

    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
    CRMC No.402/2013 19

    2026:JKLHC-JMU:748

    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
    CRMC No.402/2013 20

    2026:JKLHC-JMU:748

    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
    CRMC No.402/2013 21

    2026:JKLHC-JMU:748

    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
    CRMC No.402/2013 22

    2026:JKLHC-JMU:748

    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
    CRMC No.402/2013 23

    2026:JKLHC-JMU:748

    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.

    CRMC No.402/2013 24

    2026:JKLHC-JMU:748

    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
     



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