Centurion Laboratories (Division of Centurion Remedies Pvt. Ltd.) v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS ``` ``` MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 ``` ``` CRL.MC NO. 4318 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT CRMC 739/2012 OF HIGH COURT OF KERALA ``` ``` SC 997/2010 OF PRINCIPAL SESSIONS COURT,THRISSUR ``` ## **`PETITIONERS/ACCUSED NOS.1 TO 3:`** - **`1 M/S.CENTURION LABORATORIES, (DIVISION OF CENTURIAN REMEDIES PVT.LTD.), G/5 INDUSTRIAL ESTATE, GORWA, BARODA-16 REPRESENTED BY MANAGING DIRECTOR, AMBALAL V.PATEL, S/O.VANARASIDAS PATEL.`** - **`2 AMBALAL V.PATEL S/O.VANARASIDAS PATEL (MANAGING DIRECTOR OF CENTURION LABORATORIES - A DIVISION OF CENTURION REMEDIES PVT.LTD.), G/S.INDUSTRIAL ESTATE, GORWA, BARODA-390026.`** - **`3 C.B.PADMAKUMAR`** ``` (POWER OF ATTORNEY HOLDER), S/O.SREEKANDAN NAIR, RESIDING AT CHANDINI, SREEMOOLAM ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM DISTRICT-695011. ``` ``` BY ADV SRI.M.SREEKUMAR ``` ## **`RESPONDENT/COMPLAINANT:`** ## **`STATE OF KERALA`** ``` REPRESENTED BY THE DRUGS INSPECTOR, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, CHEMBOOKKAVU, THRISSUR, PIN-680020, NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ``` ``` BY ADV.GRASHIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF PROSECUTION ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON ``` ``` 19.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4318 OF 2014 ``` ``` 2 ``` ## BECHU KURIAN THOMAS, J. =========================== Crl.M.C. No. 4318 of 2014 ============================ Dated this the 19[th] day of September, 2022 ## ORDER Petitioners are the accused 1 to 3 in C.C.No.1008/2007 on the files of the Judicial First Class Magistrate’s Court, Chalakkudy, which was later committed to the Sessions Court and now pending as S.C.No.997/2010 before the Sessions Court, Thrissur. 2. A complaint was filed under Section 32 of the Drugs and Cosmetics Act, 1940, (for short, the Act) on 30.05.2007, alleging commission of offences punishable under Section 18(a)(i) r/w Section 27(d) of the Act. As per Annexure A1 complaint, it was alleged that the sample of a drug by the name THROT (Levothyroxine Sodium tablets I.P.), manufactured by the 1[st] petitioner, was not of standard quality and hence, the accused had committed offences under Section 18(a)(i) r/w Section 27(d) of the Act. 3. Shri.M.Sreekumar, the learned counsel for the petitioners ``` CRL.MC NO. 4318 OF 2014 ``` ``` 3 ``` contended that as per Section 25 of the Act, petitioners had a vested right to have the sample analysed by retesting at the Central Drugs Laboratory and the said right has been defeated in the instant case. It was pointed out that by the time the complaint was filed in Court, the shelf life of the product had expired thereby defeating the valuable right of the petitioners and hence, the criminal proceedings against the petitioners cannot continue. In support of his contention, attention of this Court was invited to Annexure A3 letter dated 22.03.2007, objecting to the analysis done and requesting for a retest. Annexure A3(a) acknowledgment card, showing receipt of the said letter on 30.03.2007 was also relied upon. On the aforesaid basis, Shri.M.Sreekumar, the learned counsel for the petitioners, submitted that the prosecution, against the petitioners, is incapable of ending in a conviction and therefore, other than total waste of judicial time, no purpose would be served by continuing the criminal proceedings. 4. Shri.Grashious Kuriakose, learned Senior Counsel and Additional Director General of Prosecutions, opposed the contentions ``` CRL.MC NO. 4318 OF 2014 ``` ``` 4 ``` of the learned counsel for the petitioners and submitted that whether the petitioners had objected to the test report, as contemplated under Section 25(3) of the Act, and whether the shelf life had expired are all facts which will have to be considered at the time of trial. It was also submitted that since from the documents produced before the trial Court, it cannot be comprehended as to whether the petitioners had objected to the test report the powers under Section 482 cannot be invoked. The learned Additional Director General of Prosecutions further submitted that the product manufactured by the petitioners did not confirm to the prescribed standards and since the said conduct is illegal, causing great prejudice to the society, the jurisdiction under Section 482 ought not to be exercised. 5. I have considered the rival contentions and have perused the documents produced by the parties. 6. The test report for the product THROT, specifying that the product does not confirm to the standards prescribed, is dated 17.01.2007 and the report was forwarded to the 1[st] petitioner by letter dated 24.02.2007. On 22.03.2007, petitioners claim to have ``` CRL.MC NO. 4318 OF 2014 ``` ``` 5 ``` objected to the said test report and requested the Drug Inspector to forward the sample to the Central Drug Laboratory for test and analysis. Annexure A3(a) acknowledgment card shows that the Drug Inspector received the communication on 30.03.2007. The original of Anenxure A3(a) was produced for verification before this Court. On perusal of the original of Annexure A3(a), I am satisfied that the same tallies with Annexure A3(a) and therefore, it has to be held that communication was received by the Drug Inspector from the petitioner on 30.03.2007. There is no reason for this Court to assume that the communication received by the Drug Inspector on 30.03.2007 was not that as in Annexure A3. It was the specific case of the petitioners that despite objecting to the test report and requesting the sample to be forwarded for retesting to the Central Drug Laboratory, the Drug Inspector failed to do so, thereby, prejudicing his right under Section 25 of the Act. 7. On an appreciation of the circumstances of the case, I am of the considered opinion that petitioners had objected to the test report by submitting Annexure A3 which was received by the ``` CRL.MC NO. 4318 OF 2014 ``` ``` 6 ``` respondent on 30.03.2007. 8. In the decision in Medicamen Biotech Limited and Another v. Rubina Bose, Drug Inspector [(2008) 7 SCC 196] , the Supreme Court considered the effect of the right upon the accused to send the sample for analysis to the Central Laboratory and held that the right of the accused will be prejudiced in cases where the complaint is filed immediately before the expiry of the shelf life of the drug. In the aforementioned case, since only a very short period was available for sending the sample for retesting, the complaint was quashed. Similarly, in the decision in Zest pharma v. Drug Inspector [2013 (4) KLT 462] also, similar issue arose, wherein this Court quashed the entire proceedings. 9. It is evident from Annexure A1 complaint and Annexure A2 that the drug seized by the Drug Inspector contained the specific date of manufacture as June 2005 and the expiry date as May 2007. The sample was drawn by the Drug Inspector on 28.09.2006 and the Government analyst report is dated 17.01.2007. Despite the above, the complaint was filed only on 30.05.2007, which was the last day ``` CRL.MC NO. 4318 OF 2014 ``` ``` 7 ``` of the shelf life of the product. It is evident that the petitioners’ right to have the fourth sample re-tested before the Central Drug Laboratory has been prejudiced by virtue of the complaint being filed only on the last day of the expiry date of the product. 10. Having regard to the aforesaid circumstances, I am of the view that no purpose would be served by continuing the prosecution proceedings as the valuable right of the accused under Section 25(3) and Section 25(4) of the Act has been clearly prejudiced. In such circumstances, this Court is of the opinion that the continuance of the proceedings against the petitioners in S.C.No.997/2010 on the files of the Sessions Court, Thrissur is an abuse of the process of the Court. 11. Accordingly, I quash all proceedings against the petitioners in S.C.997/2010, before the Sessions Court, Thrissur. Crl.M.C. is allowed as above. **Sd/-** BECHU KURIAN THOMAS JUDGE ssa/ ``` CRL.MC NO. 4318 OF 2014 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 4318/2014`** ## **`PETITIONERS’ ANNEXURES`** ``` ANNEXURE A1: TRUE COPY OF THE COMPLAINT DT.FILED BY THE RESPONDENT BEFORE THE JFCM, CHALAKUDY WHICH WAS TAKEN ON FILE AS CC NO. 1008/2007. ``` ``` ANNEXURE A2 : TRUE COPY OF THE CERTIFICATE OF TEST OR ANALYSIS BEARING NO.SW 5241/2006 DTL DT.17-1-2007 ISSUED BY THE GOVERNMENT ANALYST, DRUGS TESTING LABORATORY, THIRUVANANTHAPURAM. ``` ``` ANNEXURE A3 : TRUE COPY OF THE APPLICATION DT.22-3-2007 SUBMITTED BY THE 1ST PETITIONER TO THE DRUG INSPECTOR, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, THRISSUR. ``` ``` ANNEXURE A3(A) : TRUE COPY OF THE ACKNOWLEDGMENT CARD SIGNED BY THE DRUGS INSPECTOR FOR HAVING RECEIVED THE APPLICATION BY REGISTERED POST. ``` ``` ANNEXURE A4 : TRUE COPY OF SUMMONS DT.15-6-2007 ISSUED BY THE JFCM, CHALAKUDY TO THE 1ST PETITIONER. ``` ``` ANNEXURE A4(A) : TRUE COPY OF THE LETTER DT.13-7-2007 ISSUED BY THE DRUGS INSPECTOR, THRISSUR TO THE 1ST PETITIONER. ``` ``` ANNEXURE A5 : TRUE COPY OF THE ORDER DT.9-7-2014 IN CRL.M.C. NOS. 739/2012 AND 4195/2013 PASSED BY THIS HON'BLE COURT. ```