Dr. Johns Pvt. Ltd vs State Of J&K on 10 July, 2026

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    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

    SPONSORED

    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 been

    CRM(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



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