Bom HC | Publishing the official gazette notification regarding appointment of Govt. Analyst in terms of S. 20 of Drugs & Cosmetics Act, not a mere formality 

Bombay High Court: K.R. Shriram, J., dismissed a criminal appeal filed by the State against the order of the trial court whereby the respondents-accused were acquitted of the offences punishable under Section 18(a)(i) read with Section 16(1)(a) and 27(d) of the Drugs and Cosmetics Act, 1940.

The Drugs Inspector had sealed samples of ESCOL suspension from the premises of the respondents and sent it to the Government Analysts for analysis. The Analyst submitted the report stating that the sample was not of standard quality. The accused were tried under the aforementioned charges and acquitted by the trial court. Aggrieved thereby, the State filed the instant appeal.  

Notably, the prosecution entirely relied on the report issued by the Government Analyst. The trial court had concluded that the Analyst was not validly appointed as per the provisions of Section 20 of the Drugs and Cosmetics Act and hence the opinion given by him could not be relied upon. 

Section 20 of the Drugs and Cosmetics Act makes it clear that the Government Analysts having the prescribed qualifications can be appointed by the State Government by the notification in the Official Gazette. The said notification should also specify the area in which the said Analyst is required to exercise his powers and should also specify the drugs or classes of drugs or the cosmetics or the classes of the cosmetics in respect of which the said Analyst is entitled to analyse.

The High Court applying its earlier judgment in State of Maharashtra v. R.A. Chandawarkar, 1999 SCC OnLine Bom 110 to the facts of the present case, observed as a settled law that publishing of gazette notification in terms of Section 20 is not just a mere formality. It was further explained that the object of publication in the Official Gazette is two-fold: (a) to give publicity to the notification, and (b) further to provide authenticity to the contents of that notification in case some dispute arises with regard to the contents.

Considering the facts of the instant case, the Court held that the State Government not having published in the Official Gazette, the appointment of Government Analyst, specifying the area wherein he can operate and also specifying therein the products with which he can test and analyse, it is difficult to ascertain, as to who exactly will be the Government Analyst and for which area and for which products. Therefore, the only conclusion could be that the Government Analyst was not appointed validly and properly as per the provisions of Section 20 of the Drugs and Cosmetics Act.

In such view of the matter, the High Court found no warrant to interfere with the order of the trial court and, accordingly, dismissed the appeal. [State of Maharashtra v. Laxmichand Nagaji Jain, 2020 SCC OnLine Bom 64, decided on 13-01-2020]   

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