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Vilco Laboratories Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1975CriLJ965
AppellantVilco Laboratories
RespondentThe State of Gujarat and anr.
Cases Referred and Beldevji Krishnaji v. State.
Excerpt:
- .....under sub-seqtion (3) notified his intention of adducing evidence in controversies 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 produce 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 authourity of, the director of the central drugs laboratory the result thereof, and suck report shall be conclusive evidence of the. facts stated therein.'6. it is pointed out by the learned advocate for the accused that, even though, the report of the governmemt analyst was received in this case in the year 1968, the.....
Judgment:

C.V. Rane, J.

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5. Section 23 of the Act relates to the procedure to be followed by the Inspectors while taking samples of drugs for th,e purpose of being forwarded to the Government Analyst. Sub-section (4) of Section 23 of the Act .which is relevant for our purposes, inter alia provides that; one of the portions of the sample is to be sent to the Government Analyst for test or. analysis, the second portion is to be produced before the court before which proceedings, if any, are instituted and the third portion is to be sent to the person concerned. Sub-section (1) of Section 25 of the Act provides 'The Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis under Sub-section (41 of Section 23. shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.' According to Sub-section (2) of Section 25,-the Inspector on receipt, thereof has to 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 18-A and he should retain the third copy, for use in any prosecution in jespect of that sample. Subsections (3) and (4) of Section 25, which are important for our purposes, read as under:

(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 18-A 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 bar under sub-seqtion (3) notified his intention of adducing evidence in controversies 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 produce 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 authourity of, the Director of the Central Drugs Laboratory the result thereof, and suck report shall be conclusive evidence of the. facts stated therein.'

6. It is pointed out by the learned advocate for the accused that, even though, the report of the Governmemt Analyst was received in this case in the year 1968, the prosecution was launched against the accused as late as in the year; 1972. According to him, if the prosecution was launched immediately on the receipt of the.report of the Government Analyst, the accused would have requested the court to cause the sample of the drug to be sent to the Central Drugs Laboratory for test or analysis as contemplated by Sub-section (4) of Section 25 of the Act. According to Sub-section (4) Section 25, the report of the Central Drugs Laboratory is the conclusive evidence of the facts stated therein. It is, therefore, urged by the learned advocate for the accused that, as an opportunity to take action under Sub-section (4) pi Section 25 has been denied to the accused, no importance can be attached to the report of the Government Analyst. According to the labels affixed on the tins in question, the potency of the drug was limited to one year i. e. till 23-5-1958. As the prosecution was launched in the year 1972,5t is argued by the learned advocate for the accused that, no Useful purpose would have been served by requesting the court to forward the sample to the Central Drugs Laboratory in the year 1972. It is found from the evidence om record and it is not disputed that, vitamin B-1 is liable to deteriorate in quality and also to decompose by efflux of time. It,. therefore, cannot be denied that, in the year 4972 vitamin B-1 contents pf the tablets were not fit for analysis in the-Central Drugs Laboratory for the purpose of finding out as to whether they were ot standard quality on or before 23-5-1961. In support of his above argument, the learned advocate for the accused has relied on the decisions in the cases of Municipal Corporation of Delhi v. Ghisa Ram. : 1967CriLJ939 and Beldevji Krishnaji v. State. 14 Guj LR 153 : (1973 Cri LJ 1523), Both the above Kdecisions relate to Section 13 (2), (3) and (5). of the Prevention of Food Adulteration sAct, 1954, the provisions which areto ,a certain extent similar in material particulars to those of Section 25 (3) and (4) of the Act.

(x x x x x )

In the case of Municipal Corporation ot Delhi (supra) the sample was taken on September 20, 1961, while it was sent to the Director after October 4, 1963. In the meanwhile, the sample had become decomposed as a result of which the accused could not avail of the relevant provisions to get the sample analysed by the Director of the Central Food Laboratory. The trial Court had acquitted the accused and the accftuttal was, confirmed by the High; Court When the matter went to the Supreme Court, their Lordships observed:

'It appears to us that when a valuable right is conferred by Section 13 (2) of the Act on the vendor to have the sample Riven to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right -win not be denied to him. The right is valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclu^ sive evidence of its contents. Obviously, the right has been given to the vendor in

X X X X X

7. It is true that, in the present case there is no evidence on record to show as to what extent, the vitamin B tablets in question were decomposed. In athis connection, however, I have already pointed out that, after a lapse, of four years Vitamin B-l contents of the tablets must have deteriorated to a considerable extent and in that case, the accused were iustified in not requesting the court to forward the sample to the Central Drugs Laboratory. Sub-section (2) of Section 13 Of the above Act (37 of 1954) provides for sending of the sample to the Director of Central Food1 Laboratory for, a certificate -which in view of Sub-section (3) supersedes the report given by Public Analyst under Sub-section (1). According to suIh section (5), a report given by a Public, Analyst unless it is superseded undtf Sub-section (3) or a certificate issued bj1' the Director of Central Food Laboratory' may be used as evidence of the facts' stated therein. Proviso to Sub-section (6) further provides that a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. The above provisions are similar to those of Section 25 of the Act. According to subsection (3) of Section 25 of the Act, a report signed by the Government Analyst 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 18-A 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. In the present case, a copy of the report of the Government Analyst was forwarded by the Drugs Inspector to M/s. Vilco Laboratories with his letter dated 6-4-1968 (vide Ext. 5). In reply to the above letter, the accused No, 5 informed the Director of Drugs by their letter dated 2-5-1968 that, they did not agree with the report of the Government Ann-' lyst and that, they would adduce evidence in their defence, if necessary. This shows that, the accused had complied with, the provisions of Sub-section (3) of Section! 25 of the Act. Under these circumstances, the report of the Government Analyst1 cannot be considered as conclusive as contemplated by Sub-section (3) of Section 25. Moreover, having complied with the provisions of Sub-section (3) of Section 25, the accused had a rieht to request the court to send the sample to the Central Drugs Laboratory fqr testing and1 analysis as contemplated by Sub-section (4) of Section 25 of the Act; In view of the gross delay in launching the prosecution against the accused, they could not take the benefit of Sub-section (4) of Section 25 of the Act. At this stage, I may incidentally point out that, in view of Sections 6, 11 (2) and 25 (4) of the Aet read with Rule 3 of the rules made under the Act, it was not open to the accuse to submit the sample directly to the^ Central Drugs Laboratory for the purf pose of analysis or test. This shows that, the accused had no other alternative but to request the court under Sub-section (4) of Section 25 of the Act, to send the sample for analysis to the Central Drugs Laboratory but, in the circumstances mentioned above, the accused could aot avail of that opportunity. Under these circumstances, the aforesaid decisions of the Supreme Court and pf this Court, would be applicable to the present case and relying on those decisions I hold that, merely on the basis of the report of the Government Analyst, it cannot be said that the Vitamin B complex tablets were not of standard quality as contemplated by Section 16 of the Act. , The learned Magistrate has not considered this point in its proper perspective and he has'based his conclusion merely on the basis of the report of the Government Analyst, For the reasons mentioned above his finding on the point cannot be sustained.

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