9911796707
TMI Blog1998 (4) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Analyst submitted his reports on September 10 and 11, 1990 to the effect that both the samples were not of standard quality and were misbranded and adulterated within the meaning of Sections 17 and 17A of the Drugs and Cosmetics Act, 1940 ('Act' for short). The Inspector, on receipt of those reports, delivered copies thereof to the firm on September 17, 1990 along with a letter asking it to disclose the names and addresses and other particulars of the persons from whom the drugs had been purchased, in compliance therewith the firm, by its letter dated October 1, 1990, intimated the Inspector that M/s. Ajay Medical Agencies, Hisar and National Distributors, Sirsa, were the distributors of the drugs and M/s Mitson Pharmecutial P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in triplicate in the prescribed form. (2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and other particulars have been disclosed under Section 18A, and shall retain the third copy for use in any prosecution in in respect of the sample. (3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the fact 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 18-A has, within twenty-eight days of the receipt of a copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report notified in writing the Inspector or the Court before which any proceeding in respect of the sample are pending that he intends to adduce evidence in controversion of the report. Sub-section (4) also makes it abundantly clear that the right to get the sample tested by Central Government Laboratory (so as to make its report override the report of the Analyst) through the Court accrues to a person accused in the case only if he had earlier notified in accordance with sub-section (3) his intention of adducing evidence in controversion of the report of the Government Analyst. To put it differently, unless requirement of sub-section (3) is comped with by the person concerned he cannot avail of his right under sub-section (4). 6. In peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unched arises only after the person concerned notifies in writing the Inspector or the Court concerned (here the latter clause did not apply for the prosecution was set to be initiated) within twenty eight days from the receipt of the copy of the report of the Government Analyst that he intends to adduce evidence in controversion of the report. The complaint and its accompaniments (which include correspondences that took place the Inspector and the manufacturers) clearly disclose that on February 19, 1991 the Inspector served the original copies of the Analyst's report upon the Managing Director of the manufacturers along with two letters asking for their comments. They further disclose that receiving no reply from the manufacturers the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution against the three respondents cannot at all be sustained. 8. Nonetheless, we find that the impugned judgment of the High Court has got to be upheld for an altogether different reason. Admittedly, the three respondents were being prosecuted as rectors of the manufacturers with the aid of Section 34(1) of the act which reads as under: "OFFENCES BY COMPANIES: (1) Where an offence under this Act has been committed by a company/every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be quality, of the offence and shall be liable to be proceeded against and punished accordingly. Provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that he would undoubtedly be vicariously liable for the offence, Various liability being and incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper not a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed." (emphasis supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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