Excelsior Correspondent
SRINAGAR, Sept 8: High Court has ruled that a drug manufacturer has a right to dispute the correctness of the report of the Government analyst within the statutory period of 28 days from the date of the receipt of the report as per the mandate of Section 25 (3) of the Drugs and Cosmetics Act, 1940.
The observation was made by a bench of Justice Rajnesh Oswal while hearing a plea in terms of which the petitioner had challenged proceedings pending against them before the court of Chief Judicial Magistrate, Jammu.
The petitioner challenged the complaint primarily on the ground that trial court without application of mind took cognizance against the petitioner when the substantial right of the petitioner for getting the drug in question re-tested/re-analysed by the Central Drug Laboratory Kolkata as envisaged in Section 25 (3) and Section 25 (4) of the Act was denied to the petitioner by the deliberate conduct of the respondents and also by failure on its part to supply one sealed sample portion of drug in question to the petitioner as required under Section 23 (4).
The petitioner further contended that the trial court without application of the mind took cognizance against the petitioner in light of the fact that the present complaint was filed very shortly before the expiry of shelf life of the drug in question and by that time the petitioner received summons, the drug in question had already expired. The petitioner, as such, has lost its valuable right of getting the drug in question reanalyzed/retested from the Central Laboratory Kolkata, the counsel submitted.
Justice Oswal noted that the perusal of the report of the Government analyst dated 31.10.2011 reveals that the drug in question has been found to be not of standard quality and the petitioner has admitted the receipt of communication dated 18.11.2011 whereby, the test report along with the sample was sent to the petitioner.
“The petitioner had a right to dispute the correctness of the report of the Government analyst within the statutory period of 28 days from the date of the receipt of the report as per the mandate of Section 25 (3) of the Act and the letter dated 20.12.2011 relied upon by the petitioner was allegedly sent through courier and in the courier receipt dated 20.12.2011 relied upon by the petitioner neither the designation nor the address of the respondent is correct, as such, no reliance can be placed upon the letter at this stage particularly”, the bench observed.
Accordingly, Justice Oswal observed that whether the letter dated 20.12.2011 was sent to the respondent at his correct address or not and further whether the same was received by the respondent or not becomes a disputed question of fact and the same cannot be adjudicated by this court while exercising jurisdiction under Section 482 CrPC.
Buttressing the position of law as mandated under Section 25(3) of the Drugs and Cosmetics Act, the bench found it worthwhile to record the observations of Supreme Court in Glaxosmithkline Pharmaceuticals Ltd. Versus State of MP”.
Accordingly, High Court found no merit in the petition and dismissed it, leaving the petitioner free to raise the issues before the trial court.
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