TMI Blog2001 (3) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... dulterated and spurious drug . The retailer disclosed the address of M/s. Chetan Medical Stores, Kota (as the distributor or wholesaler) from whom the drug was obtained. On being contacted the said distributor dis- closed the name of the appellant concern and its proprietor as the manufac- turers of the drug. A complaint was filed by the Inspector on 5.12.1990 against all the persons for the offences under Section 27(b), (c) and (d) of the Act. After hearing the arguments at the preliminary stage the trial magistrate framed a charge for the aforesaid offences against the appellants alone and the remaining accused were discharged. Appellants thereupon filed a revision petition before the Sessions Court contending that no charge could have been framed against them because the Inspector did not send or give one portion of the sample to the appellants and thereby the mandatory provision contained in Section 23(4)(iii) of the Act was not complied with. The Sessions Judge repelled the said contention as well as certain other contentions (which are not relevant as they were not followed up by the appellants later). Nonetheless, the Sessions Judge expressed the view that there is no mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 18A 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. Learned counsel for the appellants contended that the conclusiveness of the report of the Government Analyst as envisaged in the sub-section would nail the manufacturer with the findings in the report as he would otherwise be disabled from controversing the said findings, because he has no right to challenge such findings due to the absence of a portion of the sample with him. The aforesaid contention is advanced on a misconception that the mode of challenge against the report of the Government Analyst is by sending the portion of the sample kept with the vendor (the person from whom the sample was taken). The requirement of sub-section (3) is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts contained therein become conclusive evidence. In this context it is useful to refer to the procedure prescribed for the Inspector to follow while taking sample of the drug or medicine etc. Section 23 of the Act contains the procedure to be followed. If the sample is taken from a retailer or a distributor, the Inspector shall divide the sample into four portions, seal and mark them and permit the person from whom the sample was taken to add his own seal or mark on such portions of the sample. Sub-section (4) of Section 23 is the relevant provision to be referred to now. It reads thus : The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows :- (i) One portion or container he shall forthwith send to the Govern-ment Analyst for test or analysis; (ii) the second he shall produce to the Court before which proceed-ings, if any, are instituted in respect of the drug or cosmetic; and (iii) the third, where taken, he shall send to the person, if any, whose name, address and other particulars have been disclosed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r would be disabled from challenging the correctness of the facts stated in the report and such deprivation would visit him with hard consequences as the facts stated in the report would become conclusive evidence against him. Learned counsel submitted that such a provision which disables an accused from disproving the correctness of the facts contained in a document which would nail him down, is unfair and unreasonable besides being oppressive. This amounts to violation of the fundamental right enshrined in Article 21 of the Constitution, according to the learned counsel. In support of the above contention learned counsel cited some deci-sions. In Drugs Inspector v. M/s. Modem Drugs and another, (1982) Drugs Cases 26 Madras, a single judge of the Madras High Court considered the contention raised on behalf of a manufacturer, who was convicted under Section 27 of the Act, that non-supply of copy of the report of the Govern-ment Analyst and a portion of the sample had deprived him of the right to challenge the correctness of the report. Learned single judge while appreci-ating the difficulty of the Drug Inspector who was only obliged by law to make four portions of the sample as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The legal position convassed in this case relates to a situation where the Inspector did not serve copy of the report to the manufacturer since he had no legal obligation to do so. Now we have to seriously examine the contention of both sides, particularly in view of the observations made in the decisions of the High Courts cited supra. Section 25(3) of the Act says that any document purporting to be a report signed by a Government Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive . The only exception provided in the sub-section is, if the person from whom the sample was taken or the person whose name, etc., have been disclosed under Section 18A, gives notice in writing that he intends to adduce evidence in controversion of the report he has the liberty to disprove it. Of course there is a time limit fixed for giving such notice. According to the provision, such notice shall be given within 28 days of receipt of a copy of the report. When a manufacturer in a given situation is not entitled to get a copy of the report of the Government Analyst as of right, as happened in this case, what can he do for the purpose of challenging the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy against such evidence. He must have the right to disprove or controvert the facts stated in such a document at least at the first tier. It is possible to interpret the provisions in such a way as to make a remedy available to him. When so interpreted the position is thus: The conclusiveness meant in section 25(3) of the Act need be read in juxtaposition with the persons referred to in the sub-section. In other words, if any of the persons who receives a copy of the report of the Government Analyst fails to notify his intention to adduce evidence in controversion of the facts stated in the report within a period of 28 days of the receipt of the report, then such report of the Government Analyst could become conclusive evidence regarding the facts stated therein as against such persons. But as for an accused, like the manufacturer in the present case, who is not entitled to be supplied with a copy of the report of the Government Analyst, he must have the liberty to challenge the correctness of the facts stated in the report by resorting to any other modes by which such facts can be disproved. He can also avail himself of the remedy indicated in sub-section (4) of Section 25 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. We are unable to understand the rationale in drawing a hiatus between a manufacturer who is arraigned as an accused at the first instance itself and another manufacturer who is arraigned in exercise of the powers under Section 32A of the Act, as regards his right to challenge a document purporting to be the report of the Government Analyst. The right to challenge the report must, as of right, be available to both such manufacturers who are prosecuted for the offence. When the provision can be interpreted in such a way as to avert absurd consequences in the manner indicated above it is not congenial to the interest of criminal justice to acquit the manufacturers of forbidden medicines or drugs on a technical ground that there is a lacuna in the legislation by not supplying copy of the report of the Government Analyst to the manufacturer in certain situations. To adopt the course of acquitting such offending manufacturers only on the legislative lacuna (if at all it is lacuna) would be hazardous to public health and the lives of the patients to whom drugs are prescribed by medical practitioners would be in jeopardy. Hence, when the legislative provision is capable of bein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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