Prosecution Can't Continue If Drug Inspector's Delay Defeats Accused's Right To Re-Test Sample: J&K&L High Court

The Court observed that once this valuable defence is frustrated because of the investigating authority's inaction and delay, the prosecution cannot be permitted to continue.

Justice Sanjay Dhar made the observations while allowing a petition filed by Dr. Johns Pvt. Ltd., challenging a criminal complaint instituted by the Drugs Inspector, Zone-3, Srinagar, alleging offences under Sections 18(a)(i) and 18B read with Section 27(d) of the Drugs and Cosmetics Act, 1940, along with the proceedings arising therefrom.

The Court held, "Once it is established that valuable right of the accused to adduce evidence in controversion of the Government Analyst's report is defeated due to acts and omissions of the Drugs Inspector, prosecution against the accused deserves to be quashed."

The case arose from a routine inspection conducted by the Drugs Inspector during which samples of CADCAL Capsules manufactured by the petitioner company were lifted for analysis. The Government Analyst, by report, declared the sample to be "not of standard quality." After tracing the supply chain through various distributors, the Drugs Inspector addressed a communication to the petitioner seeking relevant information.

Eventually, after obtaining sanction the complaint came to be filed before the Chief Judicial Magistrate, Srinagar, whereupon process was issued against the petitioner and other accused.

Before the High Court, the petitioner challenged the prosecution on two principal grounds. Firstly, it was contended that cognizance had been taken beyond the period of limitation prescribed under the J&K Code of Criminal Procedure. Secondly, it was argued that by the time the complaint was filed, the shelf life of the drug had already expired, thereby depriving the petitioner of its valuable statutory right under Section 25(3) of the Drugs and Cosmetics Act to seek re-analysis of the sample and controvert the Government

Court's Observations:

The High Court first examined the question of limitation. It noted that the Government Analyst's report had come to the knowledge of the Drugs Inspector on 11 November 2014, from which date the period of limitation commenced. Since the alleged offences carried a maximum punishment of two years' imprisonment, cognizance was required to be taken within three years. However, the complaint was instituted only on 16 April 2018, after expiry of the prescribed limitation period.

The Court further found that neither had the complainant explained the delay nor had the trial Magistrate recorded any reasons for extending the period of limitation in exercise of the statutory power available under the Code. It, therefore, held that the order taking cognizance was legally unsustainable.

The Court then considered the effect of the delay on the petitioner's statutory rights under Section 25(3) of the Drugs and Cosmetics Act. It observed that the provision confers a valuable right upon the manufacturer, seller or distributor to notify the Drugs Inspector or the Court of its intention to adduce evidence in controversion of the Government Analyst's report and seek re-testing of the sample. Failure to exercise that right renders the Government Analyst's report conclusive evidence against the accused.

Examining the facts, the Court found that although the petitioner was informed of the analyst's report only on 2 June 2015, the drug had already expired by then. Moreover, when the complaint was eventually filed in April 2018, the shelf life of the sample had long expired, making any request for re-testing entirely illusory. Consequently, the petitioner had been irretrievably deprived of its statutory defence solely because of the delay attributable to the Drugs Inspector, the court opined.

In reaching this conclusion, the Court relied upon the decisions of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram, State of Haryana v. Unique Farmaid (P) Ltd., and Medicamen Biotech Ltd. v. Rubina Bose, Drug Inspector, besides judgments of the Rajasthan and Punjab & Haryana High Courts, all recognising that deprivation of the accused's right to seek re-analysis of the sample due to prosecutorial delay seriously prejudices the defence and vitiates the prosecution.

Applying these principles, Justice Dhar observed that the respondent-Drugs Inspector had failed to act with reasonable promptitude in communicating the Government Analyst's report and had also delayed institution of the complaint without justification. The Court held that this negligence directly resulted in extinguishing the petitioner's statutory right under Section 25(3) of the Act. It observed,

"Once it is established that valuable right of the accused to adduce evidence in controversion of the Government Analyst's report is defeated due to acts and omissions of the Drugs Inspector, prosecution against the accused deserves to be quashed."

The Court further found that the sequence of events unmistakably disclosed inaction on the part of the prosecuting authority, observing that the delay in informing the petitioner of the analyst's report coupled with the inordinate delay in filing the complaint had caused irreversible prejudice by depriving the petitioner of an important statutory safeguard available under the Act.

Holding that the prosecution suffered from both the bar of limitation and violation of the petitioner's valuable statutory right under Section 25(3) of the Drugs and Cosmetics Act, the High Court allowed the petition and quashed the criminal complaint as well as all consequential proceedings against the petitioner.

Case Title: Dr. Johns Pvt. Ltd. v. State of J&K

Citation: 2026 LiveLaw (JKL) 301

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