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TMI Blog2011 (7) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... fter called `the Act 1940 ). 3. Facts and circumstances giving rise to this appeal are that: A. The Drug Inspector under the Act 1940 had taken a sample of Betnesol tablets (Batch No. NC 160 Mfg. October 1996, expiry March 1998), manufactured by the appellant-company from the shop of one Mahesh Agarwal at Chattarpur on 9.12.1996. The statutory authority sent the medicine for chemical analysis to the laboratory i.e. Government Analyst, Madhya Pradesh (Bhopal) on 10.12.1996. B. The said Government Analyst vide certificate dated 27.8.1997 declared that the sample was not of standard quality as defined under the Act 1940. The sample led to analytical difficulties for the purpose of determining compliance with the official standards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of 2001 (State of Madhya Pradesh v. M/s Aggarwal Medical Stores and Ors.). The said application stood rejected by the impugned judgment and order dated 14.9.2010. Hence, this appeal. 4. Shri R. Ramachandran, learned senior counsel appearing for the appellants, submitted that the Drugs Inspector issued show cause notice dated 29.9.1997 which was duly replied by the appellants on 3.11.1997. Therefore, there was no occasion for the respondentauthorities to file a complaint, that is too after the expiry of more than 3 years and 9 months of the expiry date of the medicine itself. The appellants could not avail their remedy under Section 25(3) of the Act 1940 which can be exercised within 28 days from the date of service of show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment Laboratory. As no such option had been made by the appellants, they are not entitled to challenge the report. More so, the onus of proof was on the appellants to tell as on what date the company had received the show cause notice dated 29.9.1997. The appellants have not disclosed the date of receipt of the show cause notice till date. The issue of launching criminal prosecution at a much belated stage has not been raised before the High Court in the gravity in which it is being agitated before this Court. Appeal lacks merit and thus, is liable to be dismissed. 6. We have heard the learned counsel for the parties and perused the records. 7. The issue involving herein is no more res integra matter. The issues have been examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he medicine under the I.P. 1985, it could have been done under I.P. 1996 because the I.P.1996 had come into force prior to the date of taking the sample on 9.12.1996. 8. In view of the fact that the appellants did not express an intention to adduce evidence to controvert the analyst report within the statutory limitation period of 28 days, further delay in filing the complaint becomes immaterial. Even otherwise, expiry date of the medicine was March 1998 i.e. only after 4 months of submission of the reply by the appellants, and they did not fulfill their burden of expressing intention to adduce evidence in contravention of the report. Therefore, they cannot raise the grievance that the complaint had been lodged at a much belated stage. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not notify the Inspector within the prescribed period that he intended to adduce evidence in contravention of the report. Also, akin to the case at hand, the manufacturer s right under section (3) of Section 25 expired few months before expiry of shelf life. Holding for the directors of the manufacturing company on different grounds, the court opined that the right to get drugs tested by Central Drugs Laboratory does not arise unless requirement of sub-section (3) is complied with. 11. It is pertinent to mention herein that present appellants had earlier also been informed by the Drug Inspector of various cities on many occasions that the aforesaid medicine was i.e. Betnesol Tablet, was not of standard quality and the authorities ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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