- High Court: Marketing Companies will have a right to the Trademark - September 18, 2022
- Report of Govt Analyst and CDL must give factual data (Part-2) - August 2, 2021
- Report of Govt Analyst and CDL must give factual data (Part-1) - July 25, 2021
Last Updated on September 18, 2022 by The Health Master
Report of Govt Analyst and CDL must give factual data (Part-2)
Continued from …… Report of Govt Analyst and CDL must give factual data (Part-1)
But where the opinion is not supported by any factual data, the Court cannot test the opinion of the government analyst and can not accept it blindly.
The liberty of the people cannot be taken away from them on such evidence which cannot be tested.
It is, therefore, necessary that the procedure laid down in The Drugs and Cosmetics Act, 1940, should be strictly followed and where this procedure has not been followed the report of the Government Analyst cannot be treated as conclusive evidence.
Under Section 25(4) of the Act, the Central Drugs Laboratory, Calcutta, is the final authority.
If a conflict of opinion about the quality of the sample had arisen during the normal course the trial Court will send a sample to the Central Drugs Laboratory, Calcutta, to decide the question and then the opinion of the Central Drugs Laboratory would be treated as conclusive evidence of the facts stated in its report.
It has to be noted that the test report from the Central drug Laboratory directly without being it is tested by the state drug laboratory will not be final.
Meaning thereby that the sample has to be sent to the Government Analyst for testing as a first authority and thereafter only the sample can be sent to the CDL, Calcutta.
It is, therefore, obvious that if the report of the Central Drugs Laboratory is to be held to be the final word regarding the quality of the sample, the accused should be given the chance of rebutting the report.
In the special circumstances of this case the opinion of the Central Drugs Laboratory, therefore, cannot be treated as the final authority and it can be treated only as the report of a Government Analyst.
What happened when the report of the Government Analyst, or CDL, is in an abridgment and does not give detail of the test?
The question, therefore, arises whether this abridgment amounts to an infringement of any basic right given to the citizens under the Constitution of India. Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
It cannot be denied that one of the basic natural rights possessed by an accused person is that he should have an opportunity to defend himself against the charge leveled against him.
If any enactment contains any such procedure which takes away the basic right to defend then it must be held to be ultra vires of the Constitution.
According to Article 13 of the Constitution of India, all laws which are inconsistent with the rights given to the citizens are void to the extent of such inconsistency.
It is, therefore, to be determined whether Section 25(4) of the Act is inconsistent with Article 21 or not.
Is it against an established procedure of law, when it makes the opinion of the Government Analyst final and gives no opportunity to an accused person to challenge that opinion by cross-examining the Government Analyst?
That this provision has been made for the sake of convenience and saving of expenditure can be well understood, but these reasons cannot take away the right of an accused person to defend himself.
The Court has to see whether any alternative procedure of defense is open to an accused person or not. The basic right of an accused to defend himself is protected and the provisions of Section 25 of the Act, therefore, are intra-vires of the Constitution.
The procedure mentioned should be strictly followed and if reliance is to be placed upon the conclusive nature of the evidence of the analyst, it should be procured only in the manner mentioned in Section 25 of the Drugs Act.
The basic rights can be abridged only in the manner prescribed and in no other manner.
In the end, it goes on to say that if there is a material discrepancy between the factual data in the report, it follows that the accused may seek to cross-examine the analyst. Even the report of CDL, which does not contain the data as required under Form 2 of the Act, is not conclusive and can be termed defective.
Under such circumstances the conclusiveness of the report of CDL, Calcutta can be challenged and can be rebutted by various means depending upon the circumstances of the case.
The opinion of the author is personal and based upon his understanding. The author is an Advocate practicing before Supreme Court and Delhi High Court.
For informative videos on the news regarding Pharma / Medical Devices / Cosmetics / Homoeopathy etc., click on the below YouTube icon:
For informative videos by The Health Master, click on the below YouTube icon: