Case Note & Summary
The State of Goa, through the Assistant Drug Controller, filed a criminal writ petition challenging the order of the Judicial Magistrate First Class, Margao, dated 06.05.2019, which refused to send a drug sample to the Central Drugs Laboratory under Section 25(4) of the Drugs and Cosmetics Act, 1940. The petitioner had received a complaint regarding Cephalexin Oral Suspension being unfit for human consumption, drew samples, and the Government Analyst declared it not of standard quality. The petitioner filed a criminal case seeking permission to forward a portion of the sample to the Central Drugs Laboratory. The Magistrate dismissed the application on the ground that no notice was issued to the manufacturer before filing the application. The petitioner's revision before the Sessions Court was also dismissed. The High Court upheld the lower courts' orders, holding that the right of the accused under Section 25(4) is a valuable right and cannot be curtailed by the prosecution's failure to comply with procedural requirements. The court emphasized that the Magistrate must issue notice to the manufacturer and afford an opportunity to be heard before sending the sample to the Central Drugs Laboratory. The petition was dismissed.
Headnote
A) Criminal Procedure - Drugs and Cosmetics Act - Section 25(4) - Right of Accused to Sample Testing - The Magistrate's order refusing to send the sample to the Central Drugs Laboratory without notice to the manufacturer was upheld. The court held that the right of the accused under Section 25(4) is a valuable right and cannot be defeated by the prosecution's failure to comply with procedural requirements. (Paras 1-15)
B) Criminal Procedure - Drugs and Cosmetics Act - Section 25(4) - Notice to Manufacturer - The court held that before sending a sample to the Central Drugs Laboratory, the Magistrate must issue notice to the manufacturer and afford an opportunity to be heard. The prosecution's application without such notice was premature. (Paras 1-15)
Issue of Consideration
Whether the Magistrate was justified in refusing to send the drug sample to the Central Drugs Laboratory under Section 25(4) of the Drugs and Cosmetics Act, 1940, without first issuing notice to the manufacturer and affording an opportunity to be heard.
Final Decision
The High Court dismissed the criminal writ petition, upholding the orders of the Magistrate and the Sessions Court. The court held that the Magistrate was correct in refusing to send the sample to the Central Drugs Laboratory without notice to the manufacturer.
Law Points
- Right of accused to have sample tested at Central Drugs Laboratory
- Section 25(4) of Drugs and Cosmetics Act
- 1940
- Notice to manufacturer before sending sample
- Procedural compliance mandatory
Case Details
Criminal Writ Petition No.15 of 2022
Mr. P. Faldessai, Additional Government Advocate for the Petitioner; Mr. Sahil Sardesai, Advocate for the Respondent
State, represented through Assistant Drug Controller, Directorate of Food & Drugs Administration, Goa
M/s Modern Laboratories, Indore, Madhya Pradesh
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Nature of Litigation
Criminal writ petition challenging the order of the Magistrate refusing to send drug sample to Central Drugs Laboratory under Section 25(4) of the Drugs and Cosmetics Act, 1940.
Remedy Sought
The State sought to quash the Magistrate's order dated 06.05.2019 and the Sessions Court's order dated 20.11.2019, and to allow the application to send the sample to the Central Drugs Laboratory.
Filing Reason
The State received a complaint about Cephalexin Oral Suspension being unfit for human consumption, drew samples, and the Government Analyst declared it not of standard quality. The State filed a criminal case and sought permission to send a portion of the sample to the Central Drugs Laboratory.
Previous Decisions
The Judicial Magistrate First Class, Margao, by order dated 06.05.2019, refused to send the sample to the Central Drugs Laboratory on the ground that no notice was issued to the manufacturer. The Principal Sessions Judge, South Goa, by order dated 20.11.2019, dismissed the revision and confirmed the Magistrate's order.
Issues
Whether the Magistrate was justified in refusing to send the drug sample to the Central Drugs Laboratory under Section 25(4) of the Drugs and Cosmetics Act, 1940, without first issuing notice to the manufacturer and affording an opportunity to be heard.
Submissions/Arguments
The Petitioner argued that the Magistrate erred in refusing to send the sample to the Central Drugs Laboratory, as the application was made in compliance with Section 25(4) of the Act.
The Respondent argued that the application was premature as no notice was issued to the manufacturer before filing the application, and the right of the accused under Section 25(4) is a valuable right.
Ratio Decidendi
The right of the accused under Section 25(4) of the Drugs and Cosmetics Act, 1940, to have the sample tested at the Central Drugs Laboratory is a valuable right and cannot be curtailed by the prosecution's failure to comply with procedural requirements. The Magistrate must issue notice to the manufacturer and afford an opportunity to be heard before sending the sample to the Central Drugs Laboratory.
Judgment Excerpts
This Petition impugns the Judgement and order dated 06.05.2019, passed by the Judicial Magistrate First Class, South Goa, Margao in Criminal Case bearing No.AOA/83/2019/G, to the extent of the order passed, on the Reply dated 30.03.2019 filed by the Respondent, at Exhibit -D5 and the Judgement and order dated 20.11.19 passed by the Principal Sessions Judge, South Goa at Margao in Criminal Revision Application No.46 of 2019, whilst dismissing the revision application and confirming the order dated 06.05.2019.
Procedural History
The State received a complaint on 01.08.2018, drew samples on 03.08.2018, Government Analyst report on 13.08.2018, sent report to ESI on 13.08.2018, received reply from ESI on 28.11.2018, sent report to respondent on 12.12.2018, respondent replied on 07.01.2019, State filed criminal case on 17.01.2019, Magistrate passed order on 06.05.2019, revision dismissed on 20.11.2019, writ petition filed in 2022, reserved on 14.07.2025, pronounced on 04.12.2025.
Acts & Sections
- Drugs and Cosmetics Act, 1940: 23, 25, 25(4)
