Jammu & Kashmir High Court – Srinagar Bench
Dr. Johns Pvt. Ltd vs State Of J&K on 10 July, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT
JAMMU
Reserved on: 07.07.2026
Pronounced on: 10.07.2026
Uploaded on: 10.07.2026
Whether the operative part or full
judgment is pronounced: Full
CRM(M) No.461/2022
DR. JOHNS PVT. LTD. ...PETITIONER(S)
Through: - Mr. Mujeeb Andrabi, Advocate.
Vs.
STATE OF J&K ...RESPONDENT(S)
Through: - Mr. Hakeem Aman Ali, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner, through the medium of present petition,
has challenged the complaint filed by respondent Drugs
Inspector Zone-3, Srinagar, alleging commission of offences
under Section 18(a)(i) and 18(B) read with Section 27(d) of the
Drugs and Cosmetics Act, 1940 (for short “the Act”), and the
proceedings emanating therefrom.
2) It appears that respondent Drugs Inspector has filed the
impugned complaint against the petitioner and co-accused
before the Court of learned Chief Judicial Magistrate,
Srinagar. On the basis the basis of said complaint, the
learned Magistrate has, vide order dated 17.04.2018, issued
process against the petitioner as well as other co-accused.
CRM(M) No.461/2022 Page 1 of 11
3) In the complaint it has been alleged that on 9th January,
2014, the respondent Drugs Inspector conducted routine
inspection of the premises of M/S JAF (accused No.1) and
lifted six number of drug samples including sample of the
drug, namely, “CADCAL capsules (4x5x10 caps)” with batch
No.SCDCL-009, date of manufacturing 05/2013, date of
expiry 04/2015, manufactured by the petitioner company, for
the purpose of analysis. The sample was sent to the
Government Analyst after it is sealing and a report bearing
No.L/DA/2014-15/1095, dated 31.10.2014, was rendered by
the Government Analyst, wherein it was indicated that the
sample of the drug, namely, CADCAL capsules, is not of
standard quality. Accordingly, accused No.1 was asked to
furnish the purchase record and other relevant information.
After obtaining the said information, the matter was taken up
with accused No.2, M/S Sane Enterprises, vide
communication dated 01.12.2014, and various details were
sought from it. In response thereto, it was informed by
accused No.2 that it had purchased the stock of the drug in
question from M/S King Fisher Pharma, accused No.3. The
matter was taken up by the complainant with accused No.3,
vide communication dated 06.04.2015 but even after
repeated reminders, no response was received from accused
No.3.
CRM(M) No.461/2022 Page 2 of 11
4) It has been further submitted in the complaint that vide
communication dated 02.06.2015, the matter was also taken
up with accused No.4, the petitioner herein, the manufacturer
of the drug in question, and relevant information was sought.
It has been submitted that on 08.12.2016, a representative of
the petitioner company visited the office of the complainant
but failed to give anything in writing.
5) It has further been submitted in the impugned
complaint that after obtaining the sanction for launching
prosecution against the accused persons from the controlling
authority, vide letter dated 30.06.2017, the impugned
complaint came to be filed before the learned trial Magistrate.
6) The petitioner has challenged the impugned complaint,
primarily, on two grounds; one, that the learned trial
Magistrate has taken cognizance of the offences when the
period of limitation for filing prosecution against the
petitioner for the alleged offences had already expired and,
therefore, cognizance of the offences taken by the learned
Magistrate is not sustainable in law; secondly, it has been
contended that the date of expiry of the drug, which is subject
matter of the impugned complaint, was April 2015, whereas
the impugned complaint came to be filed on 16.04.2018, as a
result of which the petitioner has been deprived of exercising
its right under Section 25(3) of the Act, which provides for
CRM(M) No.461/2022 Page 3 of 11
right of an accused to adduce evidence in controversion to the
report of the Government Analyst.
7) I have heard learned counsel for the parties and perused
the case.
8) As per the impugned complaint, the petitioner is alleged
to have committed offences under Section 18(a)(1),
punishable under Section 27(d) as also offences under
Section 18B of the Act. Section 27(d) provides that a person
who manufactures for sale or for distribution or sells or stocks
or exhibits or offers for sale or distributes any drug in
contravention of any provision of Chapter IV of the Act, is to
be to be punished with imprisonment for a term which may
not be less than one year but which may extend to two years,
and with fine which shall not be less than Rs.20,000. Thus,
the maximum punishment carried by the offence which is
alleged to have been committed by the petitioner in this case
is imprisonment of two years.
9) Section 538-B of J&K Cr. P. C, which is applicable to the
present case, creates a bar to taking cognizance after the
lapse of period of limitation. As per sub-section (1) of aforesaid
provision, a Court cannot take cognizance of an offence after
the expiry of period of limitation. Sub-section (2) of Section of
Section 438-B provides limitation of three years if the offence
CRM(M) No.461/2022 Page 4 of 11
is punishable with imprisonment for a term exceeding one
year but not exceeding three years.
10) In the present case, the fact that sample of the drug
collected from the premises of accused No.1 was found not to
be of standard quality came to the notice of the
respondent/complainant when the report of the Government
Analyst was received by the Drugs Inspector on 11.11.2014.
This is clearly spelled out in para (5) of the impugned
complaint. Thus, limitation for taking cognizance of offence
would commence from 11.11.2014. As already stated, the
offence alleged to have been committed by the petitioner and
other accused carries maximum punishment of two years
imprisonment. Therefore, cognizance of such offence can be
taken within a period of three years from the date of
commission of the offence. In the present case, as already
stated, the impugned complaint came to be presented before
the learned trial Magistrate only on 16.04.2018, which is after
a period of more than three years. Therefore, there was a legal
and statutory bar to the learned trial Magistrate to take
cognizance of the offences against the petitioner on the basis
of the impugned complaint.
11) Although Section 538-G of the J&K Cr. P. C, a Court is
vested with power to take cognizance of an offence even after
expiry of period of limitation, but for that purpose, the Court
CRM(M) No.461/2022 Page 5 of 11
has to be satisfied on the facts and in circumstances of the
case that the delay has been properly explained or that it is
necessary so to do in the interest of justice. However, in the
present case, the complainant has not stated anything in the
complaint as to under what circumstances delay was
occasioned in filing the impugned complaint nor the learned
trial Magistrate has recorded any reasons for entertaining the
complaint even after the expiry of period of limitation.
Therefore, the order impugned dated 17.04.2018, whereby
the learned trial Magistrate has taken cognizance of the
offences and issued process against the petitioner, is legally
not sustainable.
12) That takes us to the second contention raised by the
petitioner. Section 25(3) of the Act provides that a report
signed by the Government Analyst would be evidence of the
facts stated therein and such evidence would be conclusive
unless the person from whom the sample was taken or the
person whose name, address and other particulars, etc. have
been disclosed, has, within 28 days of receipt of the report,
notified in writing to the Inspector or the Court before which
any proceedings in respect of the sample are pending, that he
intends to adduce evidence in controversion of the report.
Thus, a valuable statutory right has been conferred upon the
manufacturer, seller, retailer etc. to adduce evidence in
CRM(M) No.461/2022 Page 6 of 11
controversion of the report of the Government Analyst.
Failure to exercise such right makes the test report conclusive
evidence against such manufacturer, dealer, etc.
13) In the instant case, the petitioner was informed about
the test report by the Drugs Inspector vide communication
dated 02.06.2015. The date of expiry of the drug in question
was April 2014. Thus, by the time the petitioner was informed
about the report of the Government Analyst, which provided
that the sample of the drug was found to be not of standard
quality, the drug in question had already expired. Besides
this, the complaint, as already stated, was filed before the
learned trial Magistrate on 16.04.2018. Therefore, by the time
the complaint was filed against the petitioner, the drug in
question had already expired. The petitioner, therefore, could
not have exercised his right to adduce evidence in
controversion of the report of the Government Analyst by
seeking an order of retesting of the sample after filing of the
complaint or by notifying in writing to the Drugs Inspector,
its intention to adduce evidence in controversion of the report.
14) The Supreme Court has, in the case of Municipal
Corporation of vs. Ghisa Ram, AIR 1967 SC 970, while
dealing with a similar issue, made the following observations:
“It appears to us that when a valuable right is
conferred by s. 13 (2) of the Act on the vendor to
have the sample given to him analysed by the
CRM(M) No.461/2022 Page 7 of 11
Director of the Central Food Laboratory, it is to be
expected that the prosecution will proceed in
such a manner that that right will not be denied
to him. The right is a valuable one, because
the certificate of the Director supersedes the
report of the Public Analyst and is treated as
conclusive -evidence of its contents. Obviously,
the right has been given to the vendor in order
that, for his, satisfaction and proper defence, he
should be able to have the sample kept in his
charge analysed by a greater expert whose
certificate is to be accepted by Court as
conclusive evidence In a case where there is
denial of this right on account of the deliberate
conduct of the prosecution, we think that the
vendor, in his trial, is so seriously prejudiced that
it would not be proper to uphold his conviction on
the basis of the report of the Public Analyst, even
though that report continues to be evidence in
the case of the facts contained therein.”
15) Similarly, in Nikson Pharmaceuticals and Ors. V.
State of Rajasthan and Ors, 2008 (3) Crimes 573 (Raj.), the
High Court of Rajasthan has observed that expiry date of
sample is relevant and in order to safeguard the rights of
accused to have sample tested from Central Insecticide
Laboratory, it is incumbent upon the prosecution to file
complaint expeditiously so that right of accused is not lost.
16) Again, in Shiv Narain Bansal and another v. State of
Haryana and another, 1996 Cri. L. J. 338, a Single Judge of
Punjab and Haryana High Court, while dealing with a similar
situation, made the following observations:
“12. In view of my discussion above. I find force in
the argument of the learned counsel for the
petitioners that the petitioners had informed the
Drugs Inspector in time for sending their sample
to get it tested from the Central Drugs Laboratory
CRM(M) No.461/2022 Page 8 of 11
but it was the fault of the Inspector that the
sample could not be sent to the Central Drugs
Laboratory in time and it was sent only after its
expiry date. The petitioners obviously have been
deprived of their right given to them under
Section 25(3) of the Act.
13. In this view of the matter, the petition is
allowed. The complaint as well as other
proceedings taken in pursuance thereof
including the charge against the petitioners, is
quashed.”
17) In State of Haryana v. Unique Farmaid (P) Ltd., (1999)
8 SCC 190, the Supreme Court while dealing with a case
under the provisions of Insecticides Act, which are analogous
to the provisions contained in Section 25(4) of the Act, has
observed as under:-
“12. It cannot be gainsaid, therefore, that the
respondents in these appeals have been
deprived of their valuable right to have the
sample tested from the Central Insecticides
Laboratory under sub- section (4) of Section 24
of the Act. Under sub-section (3) of Section 24
report signed by the Insecticide analyst shall be
evidence of the facts stated therein and shall be
conclusive evidence against the accused only if
the accused do not, within 28 days of the receipt
of the report, notify in writing to the Insecticides
Inspector or the Court before which
proceedings are pending that they intend to
adduce evidence to controvert the report. In the
present cases Insecticide Inspector was
notified that the accused intended to adduce
evidence to controvert the report. By the time
the matter reached the court, shelf life of the
sample had already expired and no purpose
would have been served informing the court of
such an intention. The report of the Insecticide
Analyst was, therefore, not conclusive. A
valuable right had been conferred on the
accused to have the sample tested from the
Central Insecticides Laboratory and in the
circumstances of the case accused have beenCRM(M) No.461/2022 Page 9 of 11
deprived of that right, thus, prejudicing them in
their defence.
13. In these circumstances, High Court was right
in concluding that it will be an abuse of the
process of court if the prosecution is continued
against the respondents the accused persons.
High Court rightly quashed the criminal
complaint. We uphold the order of the High
Court and would dismiss the appeals.”
18) Relying upon the aforesaid observations, the Supreme
Court in the case of Medicamen Biotech Limited and
another v. Rubina Bose Drug Inspector, (2008) 7 SCC 196,
quashed the proceedings on the ground that the accused in
the said case had been deprived of valuable right under
Section 25(3) and 25(4) of the Drugs and Cosmetic Act.
19) From the foregoing analysis of the legal position, it is
clear that once it is established that valuable right of the
accused to adduce evidence in controversion of the
Government Analyst’s report is defeated due to acts and
omissions of the Drugs Inspector, prosecution against the
accused deserves to be quashed.
20) In the instant case, the sequence of events, as narrated
in the preceding paras, shows that the respondent-Drugs
Inspector has failed to adhere to the mandatory requirements,
inasmuch as he has not taken steps with reasonable dispatch
so that the petitioner could have availed its right to get the
sample re-tested in accordance with the its right under
Section 25(3) of the Act. There has been delay on the part of
CRM(M) No.461/2022 Page 10 of 11
the Drugs Inspector in informing the petitioner about the
report of the Government Analyst and there has also been
inordinate delay on the part of the Drugs Inspector in filing
the impugned complaint. This clearly depicts inaction and
negligence on the part of the respondent, which has resulted
in loss of valuable right to the petitioner.
21) For what has been discussed hereinabove, the petition
is allowed and the impugned complaint and the proceedings
emanating therefrom, to the extent of petitioner herein, are
quashed.
22) A copy of this order be sent to the learned trial
Magistrate for information and compliance.
(Sanjay Dhar)
Judge
SRINAGAR
10.07.2026
“Bhat Altaf-Secretary”
Whether the judgment is reportable: YES/NO
CRM(M) No.461/2022 Page 11 of 11
