Case Note & Summary
The State of Goa filed an appeal against the acquittal of the respondents (M/s Caryl Pharma, its proprietor G.P. Pillai, M/s Ce-Chem Pharmaceuticals, and its proprietor M. Chandrashekhar) from an offence under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940. The case arose from a sample of the medicine 'Caryrox' (Roxithromycin suspension) collected by Drugs Inspector Jyoti Sardessai on 14/01/2004 from a pharmacy in Goa. The sample was manufactured by respondent no.3 under a loan license from respondent no.1. The State Government Analyst's report dated 28/04/2004 found the sample to contain only 39.04% of the declared active ingredient, making it substandard. The respondents received this report on 28/06/2004. On 30/07/2004, they applied to the trial court to send the sample to the Central Drugs Laboratory (CDL) for analysis. The CDL report dated 20/08/2004 found the sample to be of standard quality. The trial court acquitted the respondents, relying on the CDL report. The State appealed, arguing that the CDL report was obtained beyond the 28-day period prescribed under Section 25(4) of the Act. The High Court examined the mandatory nature of Section 25(4), which requires the accused to apply to the court within 28 days of receipt of the Government Analyst's report to send the sample to CDL. The court noted that the respondents received the report on 28/06/2004 but applied only on 30/07/2004, which was beyond 28 days (the period expired on 26/07/2004). Consequently, the CDL report could not be considered, and the Government Analyst's report became conclusive. However, the High Court observed that the State had not challenged the acquittal on this specific ground in its appeal, and the trial court's reliance on the CDL report was erroneous. Nevertheless, since the State failed to raise this issue, the appeal was dismissed, and the acquittal was upheld.
Headnote
A) Criminal Law - Drugs and Cosmetics Act - Section 25(4) - Mandatory Provision - Right to Send Sample to Central Drugs Laboratory - The provision under Section 25(4) of the Drugs and Cosmetics Act, 1940, which allows the accused to apply to the court to send the sample to the Central Drugs Laboratory for analysis, is mandatory and must be exercised within 28 days of receipt of the Government Analyst's report. Failure to do so results in the accused being precluded from challenging the report. (Para 5) B) Criminal Law - Drugs and Cosmetics Act - Section 25(4) - Time Limit - Computation - The 28-day period under Section 25(4) runs from the date of receipt of the Government Analyst's report by the accused. In this case, the respondents received the report on 28/06/2004 but applied to send the sample to CDL only on 30/07/2004, beyond the 28-day limit. The court held that the application was time-barred and the CDL report could not be relied upon. (Paras 5-6) C) Criminal Law - Drugs and Cosmetics Act - Section 25(4) - Consequence of Non-Compliance - If the accused fails to apply within 28 days, the Government Analyst's report becomes conclusive evidence of the facts stated therein. The trial court's reliance on the CDL report obtained after the prescribed period was erroneous, and the acquittal based on that report was unsustainable. However, the appeal was dismissed as the State failed to challenge the acquittal on this ground. (Paras 6-7)
Issue of Consideration
Whether the acquittal of the respondents for offence under Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940 is sustainable in law, particularly in light of the mandatory requirement under Section 25(4) of the Act to send the sample to the Central Drugs Laboratory within the prescribed time.
Final Decision
The High Court dismissed the appeal and upheld the acquittal of the respondents, noting that although the trial court's reliance on the CDL report was erroneous due to the time bar under Section 25(4), the State had not challenged the acquittal on that specific ground in its appeal.
Law Points
- Section 25(4) of Drugs and Cosmetics Act
- 1940 is mandatory
- right to send sample to Central Drugs Laboratory must be exercised within 28 days of receipt of Government Analyst report
- failure to do so renders prosecution unsustainable
