Holding

The provisions of the Drugs and Cosmetics Act must be interpreted to allow the accused manufacturer to contest the Government Analyst’s report, either by giving notice under Section 25(3) or by seeking re‑testing of the remaining sample under Section 25(4), so the report is not automatically conclusive against him.

Summary

A drug inspector sampled a formulation purchased from a retailer and, after analysis by a Government Analyst, found it to be misbranded, adulterated and spurious. The manufacturer, Amery Pharmaceuticals, sold the drug through a distributor and was charged under Sections 27(b), (c) and (d) of the Drugs and Cosmetics Act. The manufacturer contended that the inspector failed to give it a portion of the sample as required by Section 23(4)(iii), depriving it of the right to challenge the Analyst’s report, and argued that the report was conclusive evidence violating Article 21. The Court held that the inspector must allocate sample portions as per the Act, but a manufacturer who does not receive a copy of the report may still challenge it by giving notice under Section 25(3) or by invoking Section 25(4) to have the remaining sample tested at the Central Drugs Laboratory. The report is conclusive only against persons who receive it and fail to give notice; thus the manufacturer is not barred from defence. The appeal was dismissed.

Issues considered

The inspector’s failure to give a portion of the sample to the manufacturer violated Section 23(4)(iii) of the Drugs and Cosmetics Act.
Whether the Government Analyst’s report is conclusive evidence against the manufacturer under Section 25(3) when the manufacturer does not receive a copy.
Whether the manufacturer can challenge the report under Sections 25(3) and 25(4) and thereby satisfy Article 21 of the Constitution.

Legislation cited

Constitution of Indias. Article 21
Drugs and Cosmetics Act, 1940s. 18A, s. 23(4)(iii), s. 25(2), s. 25(3), s. 25(4), s. 27(b), s. 27(c), s. 27(d), s. 32A
Indian Evidence Act, 1872s. 4

Subjects

Drugs and Cosmetics Actsample provisionadulterated drugspurious drugconclusive evidenceSection 25Section 23Article 21constitutional challengecriminal proceduremanufacturer rights

Judgment

AMERY PHARMACEUTICALS AND ANR. A
v.
STATE OF RAJASTHAN
~
MARCH 16, 2001

[K.T. THOMAS AND R.P. SETHI, JJ.] B

Drugs and Cosmetics Act, 1940-Sections 18A, 23(4)(iii), 25, 27, 32A-
Drug sample ob1ainedf1vm re1ailer found lo be adulteraled, misbranded and
spurious-Man4acturer sold !he drug tl11vugh a distributor to 1~taile1~
Pmseculion pmceedings againsl !he manufac1u1u-Right of manufactuiu lo c
gel a sample of !he drug and repo11 of Govemmenl Analyst-Held, manufac-
lurer no/ enlilled lo oblain sample and repon of Govemmenl Analysl-
Man~factwu has altemalive remedy lo direcl Coun to give sample lo Cenlral
Drugs Laboratory-Acquilling offending manufacturer on legislalive lacuna
would be hazanious lo public health-Constitulion of India, 1950-A11icle 21.
D
Drug Inspector purchased a drug formulation from a medical retail
shop for the purpose of sampling it under the provisions of Drugs and
Cosmetics Act, 1940. The sample was found to he a misbranded, adulter-
ated and spurious drug after testing hy a Government Analyst. Appellant-
concern was found to he manufacturer of the drug, who through a dis-
E
trilmtor, sold it to the retailer. A complaint was filed hy the Inspector
~ against the appellant-concern and its proprietor, distributor and retailer,
for offences under Section 27(h), (c) and (d) of the Act. The Magistrate
framed charges against the appellants and discharged the remaining ac-
cosed. The Appellate Court dismissed the revision petition of the appcl-
lants hut deleted the charge under section 27(c) of the Act. The High Court F
dismissed the appeal of the appellants.
J
1f' In appeal to this Court, the appellants contended that the Inspector
did not give a portion of the sample to the appellants on which charges
were framed thereby depriving a valuable right to test the correctness of
G
the report of the Government Analyst; that the provisions contained in
Section 23(4)(iii) of the Act were not complied with; that the report of the
Government Analyst would not be binding on the ground of non-supplying
the sample; that the provision in the Act which di•11bles an accused from
disproving the correctness of the facts contained in a document is unfair,
unreasonable and oppres.,ive; and that it amounts to violation of the fun- H
449
450 SUPREME COURT REPORTS [2001] 2 S.C.R.
A damental right under Article 21 of the Constitution.

The respondent-State contended that it is open to the manufacturer
in prosecution cases against him to aduce evidence for controverting the 1
facts stated in the reports of the Government Analyst under the provisions
of the Act.
B
Dismissing the appeal, the Court

HELD : I. The obligation of the Inspector under Section 23(4) read
with Section ISA· of the Drugs and Cosmetics Act, 1940 is to give one
portion of the sample to the person from whom be took the sample, the
c second portion to the Government Analyst, the third portion to the Court
and the fourth portion to the person whose name and address, etc. were
disclosed by the vendor. Thus, in a case where the drug or medicine has
passed from the manufacturer to a distributor and then to the retailer, the
obligation of the Inspector as for giving portions of the sample would end
D up by giving it to the retailer and also to the distributor from whom the
retailer bought the drug. (455-E; F]

Stale of Haryana v. Brij Lal Mittal, (1998] 5 SCC 343, referred to.

Drugs Inspector v. Mis Modem Drugs & Anr., (1982) Drugs Cases 26
E (Madras); Kiran Dev Singh v. State of Himachal Pradesh, (1990) Drugs
Cases 324 (HP) and Vetcha Venkata Raju v. Stale of Andhra Pradesh, (1994)
Drugs Cases 94 (AP), referred to.

2. Any legal provision which snarls an indicted person without af·
fording any remedy to him to disprove an item of evidence which could
F nail him down cannot be approved as consistent with the philosophy en-
shrined in Article 21 of the Constitution of India, 1950. (459-D]

3. The Court should lean to an interpretation as would avert the .,.
consequences of depriving an accused of any remedy against such evi- ··
deuce. He must have the right to disprove or controvert the facts stated in
G such a document at least at the first tier. It is possible to interpret the
provisions in such a way as to make a remedy available to him. The
conclusiveness meant in section 25(3) of the Act need be read in juxtaposi-
tion with the persons referred to in the sub-section. In other words, ff any
of the persons who rec~Jves a copy of the report of the Government
H Analyst fails to notify his intention to adduce evidence in controversion of
-· ;.
AMERY PHARMACEUTICALS v. STATE 451
the facts stated in the report within a period of 28 days of the receipt of the A
report, then such report of the Government Analyst could become conclu-
sive evidence regarding the facts stated therein as against such persons.
But as for an accused, like the manufacturer in the present case, who is not
entitled to be supplied with a copy of the report of the Government Ana-
lyst, he must have the liberty to challenge the correctness of the facts stated
B
in the report by resorting to any other modes by which such facts can be
disproved. He can also avail himself of the remedy indicated in sub-section
(4) of Section 25 of the Act by requesting the court to send the other
portion of the sample remaining in the Court to be tested at the Central
Drugs Laboratory. Of course, no Court is under a compulsion to cause the
said sample to be so tested if the request is made after a long delay. It is for c
that purpose that a discretion has been conferred on the Court to decide
whether such sample should be sent to the Central Drugs Laboratory on
the strength· of such request. However, once the sample is tested at the
Central Drugs Laboratory and a report as envisaged in Section 25(4) of
the Act is produced in Court the conclusiveness mentioned in that sub- D
section would become incontrovertible. [459-E-H; 460-A-B]

4. When the provision can be interpreted in such a way as to avert
absurd consequences it is not congenial to the interest of criminal ju.tice to
_.._ acquit the manufacturers of forbidden medicines or drugs on a technical
ground that there is a lacuna in the legislation by not supplying copy of the E
report of the Government Analyst to the manufacturer in certain situa-
lions. To adopt the course of acquitting such offending manufacturers only
on the legislative lacuna (if at all it is lacuna) would be hazardous to public
health and the lives of the patients to whom drugs are prescribed by
medical practitioners would be in jeopardy. Hence, when the legislative F
provision is capable of being interpreted, the courts need not feel helpless
in administering criminal justice in accordance with the objects sought to
be achieved by the statute. [461-A-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 300
of 2001. G
From the Judgment and Order dated 25.10.99 of the Rajasthan High
Court in S.B. Crl. Misc. P. No. 1034 of 1998.

R.N. Trivedi, Additional Solicitor General, Alok Singh, V.B. Joshi,
Sushil Krimar Jain, Hemani Sharma and D.S. Mabra for the appearing parties. H
452 SUPREME COURT REPORTS [2001] 2 S.C.R.
A The Judgmeut of the Court was delivered by
+
THOMAS, J. Leave lgranted.

Appellant, a phannaceutical concern, succeeded in stalling prosecution
proceedings launched against it by a Drug Inspector for a long period of well
B over a decade by now, and the trial remians where it started at. In the
meanwhile the appellant concern and its proprietor sauntered through all the
!iers of the judicial hierarchy and reached the apex Court and at all these
forums. they have one technical objection about the maintainability of the
prosec.ution launched against them.

c The events started on 30-4-1998 when a Drugs Inspector visited a
medical retail shop at Kola (Rajasthan) and purchased a drug formulation by
the trade name "Ashoka Liquid Extract". The said purchase was made for the
purpose of sampling it under the provisions of the Drugs and Cosmetics Act,
1940 (for short "the Act"). When one of the portions of sample was tested
D by the Government Analyst (Jaipur) he reported that the sample was "mis'
branded, adulterated and spurious drug". The retailer disclosed the address
of Mis. Chelan Medical Stores, Kola (as the distributor or wholesaler) from
whom the drug was obtained. On being contacted the said distributor dis-
closed the name of the appellant concern and its proprietor as the manufac-
turers of the drug. ·
E
A complaint was filed by the Inspector on 5.12.1990 against all the
persons for the offences under Section 27(b), (ci and (d) of the Act. After
bearing the arguments at the preliminary stage the trial magistrate framed a
charge for the aforesaid offences against the appellants alone and the
remaining accused were discharged. Appellants thereupon filed a revision
F
petition before the Sessions Court contending that no charge could have been
framed against them because the Inspector did not send or give one portion
of the sample to the appellants and thereby the mandatory provision
contained in Section 23(4)(iii) of the Act was not complied with. The Sessions
Judge repelled the said contention as well as certain other contentions
G (which are not relevant as they were not followed up by the appellants later).
Nonetheless, the Sessions Judge expressed the view that there is no
material on record to show that the drug is spurious. Hence the count under
Section 27(c) of the Act was deleted from the charge while the remaining
counts were upheld as per the order passed by the Sessions Judge on
H 23.11.1995.
-' AMERY PHARMACEUTICALS v. STATE [THOMAS, J.]
Appellants thereafter moved the High Court of Rajasthan under Section
482 of the Code of Criminal Procedure by focussing on the contention that
there was non-compliance with the provision contained in Section 23(4)(iii)
453
A

of the Act on the premise thai the Inspector did not deliver one portion of
the sample to the appellants. A Single Judge of the High Court declined to
accede to the said contention and dismissed the petition filed by the appellants
B
as per the order impugned in this appeal.

Mr. Alok Singh, learned counsel for the appellants contended' that
non-supply of one portion of sample to the manufacturer, who is joined
as an accused in the complaint, has resulted in depriving him of a valuable
right to test the correcfJless of the report of the Government Aoalyst. Learned c
counsel further contended that the consequence of such non-supply is that
the conclusiveness attached by law regarding the findings mentioned by
the Government Analyst is lost and the report of the Government
Aoalyst would not be binding on the manufacturer. In order to examine the
correctness of the above contention we may look at the relevant provisions
of the Act. D

Section 27 of the Act renders a person who manufactures for sale or
for distribution, or who sells or stocks or offers for sale any adulterated or
spurious drug, liable to a punishment wit11 imprisomnent for a time which
-"" shall not be Jess than one year though a maximum is provided. Section 23 E
of the Act empowers an Inspector to take sample of any drug for the purpose
of test or analysis. Section 25 empowers a Government Aoalyst to whom a
portion of the sample has been submitted for test, to deliver a report to the
Inspector, in triplicate, stating the facts discerned in the test or analysis.

Section 25(2) of the Act says that the Inspector shall deliver one F
copy of the report to the person from whom t11e sample was taken, another
copy of the report to the person whose name and address have been disclosed
to the Inspector. The third copy shall be retained by the inspector for use
in any prosecution in respect of the sample. Section 25(3) of the Act reads
thus :
G
"Aoy document purporting to be a report signed by a Government
Aoalyst under this Chapter shall be evidence of the facts stated
therein, and such evidence shall be conclusive unless the person from
whom the sall\Ple was taken or the person whose name, address and
other particulars have been disclosed under section 18A has, within H
--
454 SUPREME COURT REPORTS [2001] 2 S.C.R.
A twenty-eight days of \he receipt of a copy of the report, notified in
writing the Inspector or the Court before which any proceedings in 1
respect of the sample are pending that he intends to adduce evidence
in controversion of the report."

Learned counsel for the appellants contended that the conclusiveness
B of the· report of the Government Analyst as envisaged in the sub-section
would nail the manufacturer with the fmdings in the report as he would
otherwise be disabled from controversing the said findings, because he has
no right to challenge such fmdings due to the absence of a portion of the
sample with him.
c The aforesaid contention is advanced on a misconception that the mode
of challenge against the report of the Government Analyst is by sending the
portion of the sample kept with the vendor (the person from whom the sample
was taken). The requirement of sub-section (3) is that one of the persons to
whom the copy of the report is given, if he warrts to ·challenge the report,
D has to notify the trial court or the Inspector concerned of the intention to
adduce evidence in controversion of the report. If he does not do so within
28 days of receipt of a copy of the report of the Government Analyst its
consequence would be that the facts contained in the report would become
conclusive as against those persons. The notice to be given shall convey the
intention of the person concerned, "to adduce evidence in controversion of
E
the report". If such a notice is given, it is open to the person who gives such
notice, to adduce any evidence for the purpose of contradicting the findings
in the report. But if such per.;,n fails to give any such notice within the said
period of 28 days the findings in the report would operate as conclusive
evidence against the person who failed to give such notice.
F
One of the modes of challenging the report is indicated in sub-section
(4) of Section 25. It reads thus :

"Unless the sample has already been tested or analysed in the Central
Drugs Laboratory, where a person has under sub-section (3) notified
G his intention of adducing evidence in controversion of a Government
Analyst's report, the Court may, of its own motion or in its discretion
at the reqnest either of the complainant or the accused cause the
sample for the chug or cosmetic produced before the Magistrate under
sub-section (4) of section 23 to be sent for test or analysis to the said
H Laboratory, which shall make the test or analysis and report in writing
AMERY PHARMACEUTICALS v. STATE [THOMAS, J.] 455
·signed by, or under the authority ot; the Director of the Central Drugs · A
Laboratory the result thereof, and such report shall be conclusive
evidence of the facts stated therein."

If the person who was given a copy of the report of the Government
Analyst notifies his intention to challenge the report it is open to the court
to forward the portion of the sample kept in the court, to the Central Drugs B
Laboratory. The sub-section further envisages that any of the parties involved
in the criminal proceedings (the accused as well as the complainant) can make
a request to the court that the portion of the sample produced by the Inspector
before the Magistrate may be sent to the Central Drugs Laboratory. When the
said Central Drugs Laboratory sends a report after conducting the analysis C
or tests, the facts contained therein become conclusive evidence.

In this context it is useful to refer to the procedure prescribed for the
Inspector to follow while taking sample of the drug or medicine etc. Section
23 of the Act contains the procedure to be followed. If the sample is taken
from a retailer or a distributor, the Inspector shall divide the sample into four D
portions, seal and mark them and pennit the person from whom the sample
was taken to add his own seal or mark on such portions of the sample. Sub-
section (4) of Section 23 is the relevant provision to be referred to now. It
reads thus :
-a "The Inspector shall restore one portion of a sample so divided or one· E
contailler, as the case may be, to the person from whom he takes it,
and ~hall retain the remainder and dispose of the same as follows :-

(i) One portion or container he shall forthwith send to the Govern-
ment Analyst for test or analysis;
F
(ii) the second he shall produce to the Court before which proceed-
ings, if any, are instituted in respect of the drug or cosmetic; and

(iii) the third, where taken, he shall send to the person, if any, whose
name, address and other particul;;rs have been disclosed under
section 18A." G

- ., In this context it is necessary to extract Section I 8A of the Act also
which is as under :

"I BA. Disclosure of the namt! of the manufacturer, etc. - Every person,
not being the manufacturer of a drug or cosmetic or his agent for the H
456 SUPREME COURT REPORTS [2001] 2 S.C.R.
A distribution thereof, shall, if so requir~d. disclose to the Inspector the
name, address and other particulars of the person from whom he f
acquired the drug or cosmetic."

Thus, the obligation of the Inspector is to give one portion of the
sample to the person whose name, etc. have been disclosed as the person from
B whom the vendor acquired the drug. The requirement of the provision would
stand complied with when the Inspector gives one portion of the sample to
the person from· whom he took the sample, and forward the second portion
to the Government Analyst and the third portion to the court (before which
the prosecution is pending) and tl1e fourth portion to the person whose name
c and address, etc. were disclosed by tl1e vendor. This position is made very
clear as can be seen from the first proviso to sub-section (3) of Section 23
of the Act. That proviso says that "where the sample is taken from premises
whereon the drug is being manufactured, it shall be necessaty to divide the
sample into three portions only. " (emphasis supplied). Jn such case one
portion shall be given to the manufacturer and the remaining two portions
D are to be dealt with in accordance with clause (i) and clause (ii) of sub-section
(4), i.e. one portion to be sent to the Government Analyst and the second to
be produced before the court. In such a case, there is no utility for clause
(iii) of the sub-section. This aspect of nan-utility of the third clause in such
a situation is amplified by the words employed in that clause itself, (i.e.
E "where taken"). In other words, where it is not taken, that clause has no
utility.

Thus, in a case where the drng or medicine has passed from the
manufacturer to a wholesaler (a disuibutor) and then to a retailer, the
obligation of the Inspector (who takes the sample from a retailer) as for giving
F portions of the sample would end up by giving it to the retailer and also to
the distributor (from whom the retailer bought the drug).

It was contended that since a manufacturer is noi entitled to get a copy
of the report of the Government Analyst as of right (when the sample was
taken from a retailer) the manufacturer would be disabled from challenging
G the correctness of the facts stated in the report and such deprivation would
visit him witl! hard consequences as the facts stated in the report would
become conclusive evidence against him. Learned counsel submitted tl!at
such a provision which disables an accused from disproving tl!e correctness
of the facts contained in a document which would nail him down, is llflfair
H and unreasonable besides being oppressive. This ilffiOunts to violation of the
AMERY PHARMACEUTICALS v. STATE [THOMAS, J.] 457
fundamental right enshrined in Article 21 of the Constitution, according to A
the learned counsel.

In support of the above contention learned counsel cited some deci-
sions. In Drugs Inspector v. Mis. Modem Drugs and another, (1982) Drugs
Cases 26 Madras, a single judge of the Madras High Court considered the
contention raised on behalf of a manufacturer, who was convicted under B
Section 27 of the Act, !hat non-supply of copy of the report of the Govern-
ment Analyst and a portion of the sample had deprived him of the right to
challenge the correctness of the report. Learned single judge while appreci-
ating the difficulty of the Drug Inspector who was only obliged by law to
make four portions of the sample as the maximum, has observed that the
legislature should have envisaged a case like the present one where there are
c
number of accused persons who are entitled to have each one portion of the
sample and a copy of the report of the Government Analyst. Learned single
judge further suggested that the defect in the Act requires rectification. After
stating that it was the business of the legislature and not that of the judge,
the High Court has chosen to acquit the appellant manufacturer. D
In Kiran Dev Singh v. State of Himachal Pradesh, (1990) Drugs Cases
324 (HP), a Division Bench of the High Court of Himachal Pradesh held
thus :
"The provisions of the Act, when read in the light of the scheme E
thereof, lead to the urunistakable conclusion that it is incumbent upon
the Drug Inspector to make, a copy of the report of the Analyst as
also a part of the sample, available to the manufacturer where his
identity becomes known before he is actually proceeded against from
the initial stages by being made a party to the complaint filed by the
Inspector. This is the mandate of law lest the manufacturer is F
deprived of an effective opportunity for a defence to the effect that
the drug manufactured by him, out of which the sample was drawn
is not lacking in necessary standard of quality. The manufacturer
should have access to the report and a part of the sample drawn from
his product within a reasonable period to enable him to exercise the G
right of adducing evidence in controversion of the report of the
- analyst which describes his product as lacking in necessary standards
of quality."
Shir R.N. Trivedi, learned Additional Solicitor General contended that
the observations made in those decisions cannot be approved because it is H
458 SUPREME COURT REPORTS (2001] 2 S.C.R.
A open to the manufacturer in prosecution cases against him to adtluce evidence
for controversing the facts stated in the reports of Government Analyst in the
manner indicated in Sections 25(3) and (4) of the Act. Learned Additional
Solicitor General invited our attention to a two-Judge Bench decision of this
Court in State of Haryana v. Brij Lal Mittal, [1998] 5 SCC 343. In that
decision tl:te point convassed before us did not arise, because on the facts
B
therein it was admitted that the manufacturer was served with a copy of the
report of the Government Analyst, but he did not notify his intention to
adduce evidence in controversion of the said report. The legal position
convassed in this case relates to a situation where the Inspector did not serve
copy of the report to the manufacturer since he had no legal obligation to
c do so. Now we have to seriously examine the contention of both sides,
particnlarly in view of the observations made in the decisions of the High
Courts cited supra. .

Section 25(3) of the Act says that any document purporting to be a
report signed by a Government Analyst shall be evidence of the facts stated
D therein "and such evidence shall be conclusive". The only exception provided
in the sub-section is, ~ the person from whom the sample was taken or the
person whose name, etc., have been disclosed under Section 18A, gives notice
in writing that he intends to adduce evidence in controversion of the report
he has the liberty to disprove it. Of course there is a time limit fixed for giving
E such notice. According to the provision, such notice shall be given with_in 28
days of receipt of a copy of the report.

When a manufacturer in a given situation is not entitled to get a copy
of the report of the Government Analyst as of right, as happened in this case,
what can he do for the purpose of challenging the report? There is yet another
F situation when a manufactW"er can be arraigned in the case. It is envisaged
in Section 32A of the Act. It reads thus :

"32A. Power of Court to implead the manufacturer, etc. - Where, at
any time during the trial of any offence under this Chapter alJeged
to have been committed by any person, not being the manufacturer
G of a drug or cosmetic or his agent for the distribntion thereof, the
Conrt is satisfied, on the evidence adduced before it, that such
manufacturer or agent is also concerned in that offence, then, the
Conrt may, notwithstanding anything contained in sob-sections (1),
(2) and (3) of section 319 of the Code of Criminal Procedure, 1973,
H proceed against him as though a prosecution had been instituted
AMERY PHARMACEUTICALS v. STATE [THOMAS, J.] 459
against him under section 32." A
What would such a manufacturer, who is impleaded as per the above
provision, do when he too is not entitled to be supplied with either a portion
of the sample or even a copy of the report of the Govermnent Analyst?

The extent of the implication of the words "such evidence shall be B
conclusive" as employed in Section 25(3) of the Act has to be understood
now. Section 4 of the Evidence Act says that when one fact is declared by
the said Act to be conclusive proof of another "the court shall, on proof of
one fact, regard the other as proved, and shall not allow evidence to be given
for the purpose of disproving it." The expression "conclusive evidence"
employed in Section 25(3) of the Act cannot have a different implication as
c
the legislative intention cannot be different.. Such an import as for the word
"conclusive" in the interpretation of statutory provisions has now come to
stay. If so, what would happen if the manufacturer is disabled from challeng-
ing the facts contained in the document which would visit him with drastic
consequences when he is arraigned in a trial. Any legal provision which snarls D
an indicted person without affording any remedy to him to disprove an item
of evidence which could nail him down cannot be approved as consistent with
the philosophy enshrined in Article 21 of the Constitution. The first effort
which courts should embark upon in such a situation is to use the power of
interpretation to dilute it to make the provision amenable to Article 21.
E
In our view the court should lean to an interpretation as would avert
the consequences of depriving an accused of any remedy against such
evidence. He must have the right to disprove or controvert the facts stated
in such a document at least at the first tier. It is possible to interpret the
provisions in such a way as to make a remedy available to him. When so F
interpreted the position is thus: The conclusiveness meant in section 25(3) of
the Act need be read in juxtaposition with the persons referred to in the sub-
section. In other words, if any of the persons who receives a copy of the
report of the Govermnent Analyst fails to notify his intention to adduce
evidence in controversion of the facts stated in the report within a period of
G
28 days of the receipt of the report, then such report of the Govermnent
Analyst could become conclusive evidence regarding the facts stated therein
as against such persons. But as for an accused, like the manufacturer in the
present case, who is not entitled to be supplied with a copy of the report of
the Government Analyst, he must have the liberty to challenge the correctness
of the facts stated in the report by resorting to any other modes by which H
.460 SUPREME COURT REPORTS (2001] 2 S.C.R.
A such facts can be disproved. He can also avail himself of the remedy indicated
in sub-section (4) of Section 25 of the Act by reqnesting the court to send
the other portion of the sample remaining in the court to be tested at the
Central Drugs Laboratory. Of course, no court is under a compulsion to cause
the said sample to be so tested if the request is made after a long delay. It
is for that purpose that a discretion has been conferred on the court to decide
B
whether such sample sli.ould be sent to the Central Drugs Laboratory on the
strength of such request. However, once the sample is tested at the Central
Drugs Laboratory and a report as envisaged in Section 25(4) of the Act is
produced in court the conclusiveness mentioned in that sub-section would
become incontrovertible.
c In Vetcha Venkata Raju v. State of Andlira Pradesh, (1994) Drugs Cases
94 (AP) a manufacturer was prosecuted in a situation similar to the present
case and he was convicted by the trial court which was confirmed by the
Sessions Court. He raised a contention before the High Court of Andhra
Pradesh that he is precluded from exercising a valuable right to get the sample
D examined by the Central Drugs Laboratory as provided under Section 25(4)
of the Act because the portion of the sample or copy of the report was not
supplied to him. As against the said contention the Public Prosecutor in that
case pointed out that any other manufacturer also would be under such a
disability if he is prosecuted in exercise of the powers under Section 32A of
E the Act because there is no provision for serving him with a copy of the report
in such situation. A Single Judge of the Andhra Pradesh High Court, in the
wake of the above contentions, observed that if the manufacturer is pros-
ecuted by impleading him as per Section 32A of the Act he cannot claim the
right to be supplied with a copy of the report of the Government Analyst,
but if he is prosecuted in consequence of the disclosure made under Section
F IBA such manufacturer would be entitled to a portion of the sample as well
as a copy of the report of the Government Analyst. According to learned
Single Judge, failure to supply such things to the manufacturer who was made
an accused as per Section l 8A could cause prejudice to hint· But no such
prejudice can be caused by a manufacturer impleaded under Section 32A of
G the Act, according to the learned single judge. Consequently the conviction
and sentence passed on the manufacturer in that case were set aside by the
High Court.

We are unable to understand the rationale in drawing a hiatus between
a manufacturer who is arraigned as an accused at the first instance itself and
H another manufacturer who is arraigned in exercise of the powers under
AMERY PHARMACEUTICALS v. STATE [THOMAS, I.] 461
Section 32A of the Act, as regards his right to challenge a document A
purporting to be the report of the Government Analyst. The right to challenge
' the report mnst, as of right, be available to both such manufacturers who are
prosecuted for the offence.

When the provision can be interpreted in such a way as to avert absurd
consequences in the manner indicated above it is not congenial to the interest B
of criminal justice to acquit the manufacturers of forbidden medicines or
drugs on a technical ground that there is a lacnna in the legislation by not
supplying copy of the report of the Government Analyst io the manufacturer
in certain situations. To adopt the course of acquitting such offending
manufacturers only on the legislative lacnna (if at all it is lacuna) would be c
hazardous. to public health and the lives of the patients to whom drugs are
prescribed by medical practitioners would be in jeopardy. Hence, when the
legislative provision is capable of being interpreted as we did now, the courts
need not feel helpless in administering criminal justice in accordance with the
objects sought to be achieved by the statute.
D
In the result we dismiss this appeal.

B.S. Appeal dismissed.

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