Rajasthan High Court - Jaipur
Dr Girish Agarwal vs Stae Of Raj And Anr on 26 March, 2010
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ** 1. D.B.HABEAS CORPUS PET.NO.6097/2009 (Dr.Hridya Narayan Singh Vs. The State of Rajasthan and anr.) 2. D.B.HABEAS CORPUS PET.NO.6089/2009 (Dr.Girish Agrawal Vs. The State of Rajasthan and anr.) ** Date of Judgment : 26/03/2010 P R E S E N T Hon'ble Mr.Justice Narendra Kumar Jain Hon'ble Mrs.Justice Meena V.Gomber. REPORTABLE Mr.S.R.Bajwa,Sr.Adv. With Mr.V.R.Bajwa, for the petitioners. Mr.Rajendra Yadav, Govt. Advocate, for State. BY THE COURT: (Per Honble Mrs.Gomber,J)
These two writ petitions of habeas corpus have been filed by Smt.Sangita Singh and by Dr.Rajan Agarwal for the release of Dr.H.N.Singh and Dr.Girish Agrawal respectively. Since both the petitions challenge common orders (Annex.P/2) passed by A.C.J.M., Hindaun city, Distt. Karauli, in criminal case no.483/09, [now after committal, pending as Sessions case no.59/09 before the Addl. Sessions Judge (Fast Track), Hindaun city], hence are being disposed off together.
2. By way of these petitions, the petitioners have challenged (i) various remand orders passed on 14.6.09 and thereafter from time to time as well as the order dated 18.8.09 taking cognizance by ACJM, Hindaun City, in criminal case no.483/2009 (Annex.P/1) and sessions case no.59/09 pending in the court of ADJ (Fast Track), Hindaun City; and (ii) have sought declaration that the detention of Dr.H.N.Singh, husband of Sangita Singh and Girish Agrawal, father of Rajan Agrawal, in pursuance of remand orders passed by ACJM, Hindaun city and further custody remanded by the trial court is unlawful. Certified copies of order sheets drawn by ACJM court and trial court have been annexed as ANNEXURE-P/1 & P/2 respectively.
3. The facts giving rise to these writ petitions are that a written report, alleging that petitioners who are doctors by profession, running their private Hospitals in Hindaun city, are engaged in illegal trading & sale of human blood of minor innocent children and the same is extracted by enticing and intoxicating them.
4. In nutshell, the report lodged at P.S. Hindaun city by Sh.Bachhu resident of village Mahu and a driver by profession, was that about a fortnight ago, one Rakesh Koli also of Mahu village engaged in this business, brought his son Manoj and Buddha (both minors) to Hindaun, under the pretext of showing them Cinema. He then took them to the petitioners privately run hospitals named Rajgirish hospital and Tirupati hospital. Manoj was taken to Rajgirish hospital where he was made to meet the petitioner Dr.H.N.Singh, who administered him a tablet so as to sedate him. When Manoj started having the effect of sedation, he was sent by Dr.Girish Agarwal to his old house situated near Ganda Naala in Hindaun city and then was taken to the first floor of that house where two bottles of blood were extracted from his body. After he came out of the sedation, he was made to drink juice and was sent away. In the same manner, Buddha minor was taken to Tirupati Hospital by Rakesh Koli where he was made to meet the staff of the hospital namely Sultan, Girdhari & Pawan and two bottles of blood were extracted from his body also. He was also made to drink juice and was sent back. According to Bachhu, on his return from work, Manoj and Buddha narrated the whole incident. Thereafter, he along-with both minors and Buddhas father made enquiry and then reported that the condition of both the children was bad and their lives were in danger.
5. On the basis of said written report of Bachhu (father of minor victim Manoj), an FIR No.324/09 was initially registered at P.S. Hindaun city, Distt. Karauli for the offences punishable under Secs.336, 308, 328 and 120B IPC and after investigation, prosecution was filed under offences punishable under various sections of Indian Penal Code namely 307, 308, 365, 336,120(b) along with Secs.18(a), 18(C)(vi), 27(b)(d) of the Drugs & Cosmetics Act, 1940 (hereinafter referred to be as Act of 1940) read with Rules 122E,A,F,G and schedule Part XII B(H) of the Drugs & Cosmetics Rules and sections 23, 25 and 27 of the Juvenile Justice Act, 2000 (hereinafter referred to be as Act of 2000) against the present petitioners along with other four persons i.e. Rakesh, Suraj, Sultan and Raghuveer.
6. During investigation of the case, the petitioners were arrested and police custody remand orders were passed from time to time and thereafter vide order dated 18.8.09, cognizance for the offences under the above mentioned sections was taken by ACJM, Hindaun City, Distt. Karauli in cr.case no.483/09 which (after committal) is now pending before ADJ, (Fast Track), Hindaun city as sessions case no.59/09 who also remanded them to further judicial custody from time to time.
7. The grievance of the petitioners, hereinabove, is that the Act of 1940 is a special statute and according to the said Act, only Drugs Inspectors are given the powers to deal in the provisions of the Act. It is only the Drugs Inspector who was competent to file complaint in the court. The Competent Court of concerned Magistrate could only take cognizance of offences under the Act of 1940 once the authorized Officer namely Drugs Inspector filed the complaint. In the present case, local police ventured to investigate the offence relating to the Act on the premise that the blood had been taken out from the person of victims illegally which attracts infraction of Rules 122 E,A,F,G and Schedule Part XII B(H) of the Drugs & Cosmetics Rules, leading to the commission of offences under Secs.18(a)(vi), 18(c), 27(b)(d) of the Drugs & Cosmetics Act. Such investigation, according to the petitioners, was bereft of legal sanctity. Further that definition of term complaint given out in Section 2(d) of the Cr.P.C. does not include police report under Sec.173 Cr.P.C. Further whenever an act or omission is an offence under special statute, then it would rule out the application of general law namely Criminal Procedure Code. In the instant case, two special statues namely Drugs & Cosmetics Act and Juvenile Justice Act have been pressed into service.
8. The contention of learned counsel for the petitioners was that since under the Act of 1940, only the Drugs Inspectors are given the powers, and it is they i.e. Drugs Inspectors only who had jurisdiction to file a complaint in the competent court and since the term complaint would not include the police report under Sec.173 Cr.P.C as defined under the criminal procedure code, the Investigating Agency had absolutely no authority to investigate into the matter, much less to submit report under Section 173 Cr.P.C. The trial, therefore, stands vitiated due to patent lack of jurisdiction. The custody of petitioners from the date of arrest in sessions case no.59/09 pending (after committal from the ACJM, Hindaun city, Distt. Karauli in the court of ADJ(Fast Track), Hindaun city, (Distt. Karauli) is wholly illegal and in gross violation of rule of law.
9. The custody of the petitioners, since inception is absolutely illegal because no criminal complaint under Secd.200 Cr.P.C. ever came to be filed and no process was ever issued under Section 204 Cr.P.C., the arrest of petitioners was illegal since inception and wholly without jurisdiction. Therefore, the fundamental right of personal liberty of petitioners granted under Article 21 of the Constitution of India, has been continuously invaded without legal authority. As the trial of petitioners in the form of Sessions case no.59/2009 pending in the court of Addl. Sessions Judge (Fast Track), Hindaun city is wholly without jurisdiction and void ab initio as such the custody in jail of petitioners is a nullity in the eye of law. According to the petitioners, they have been left with no other alternative efficacious remedy except to invoke jurisdiction under Art. 226 of the Constitution of India by preferring this writ of habeas corpus.
10. It was prayed that writ of habeas corpus be allowed and the custody of petitioners in sub-jail Hindaun city in sessions case no.59/09 pending in the court of ADJ (FT), Hindaun city, pursuant to remand orders passed from time to time (Annex.P/1 & P/2) be declared as illegal and wholly without jurisdiction and the respondent no.2 be directed to release the petitioners forthwith.
11. Per contra, the respondents, besides the preliminary objections, of maintainability for not impleading the concerned Magistrate taking cognizance, submitted that on the basis of written report of aggrieved person, initially FIR No.324/09 was registered for the offences under Sec. 326, 328, 308 and 120B IPC. But after recording the statement of Drug Control Officer, Sections 18(a)(vi), 18(c) and 27(b)(d) of the Act of 1940 and Sections 23,25 & 27 of the Juvenile Justice Act, 2000 (hereinafter to be referred as Act of 2000) were added. Eventually, other offences under Indian Penal Code under Secs.365 and 307 IPC were also added.
12. A preliminary objection was raised by Sh.Rajendra Yadav, Govt. Advocate that in the case in hand, S.B.Cr.Misc. Pet. No.1854/2009 under Sec. 482 Cr.P.C. was filed by the petitioners jointly on 4.9.09 and same was pending and since the petitioners have already availed the alternative remedy under Sec.482 Cr.P.C., writs of habeas corpus, filed by wife Smt.Sangita Singh and the son Dr.Rajan Agrawal for Dr.H.N.Singh and Dr.Girish Agrawal respectively are not maintainable. It was contended that the petitioners are at liberty to get the said S.B.Cr.Misc. petition under Sec.482 Cr.P.C disposed of so as to get the prosecution quashed if it was not in accordance with law. It was further argued that the jurisdiction was never challenged by the petitioners in S.B.Cr.Bail Appl. No.7225/2009 filed on 2.9.09 which was dismissed on 14.10.09. They also did not raise this issue that SHO was never authorized by the State Government to institute prosecution for offences under the Act of 1940, hence the present petition was not maintainable.
13. Learned Government Advocate further argued that even if the availability of alternative remedy is no bar to the filing of writ petition under Article 226, when fundamental right is violated, but according to him, so far as the present case is concerned, the question is whether detention pursuant to an order of remand under Sec.309 Cr.P.C. can be challenged by way of writ of habeas corpus. He placed reliance on the judgment of Hon'ble Apex Court passed in the matter of A.Lakshmanrao Vs. Judicial Magistrate, Ist Class, Vatipuram and ors., reported in AIR 1971 SC, 186. In this case, the issue was whether the personal presence of an accused person was necessary for the purpose of his remand under Sec.344 Cr.P.C. (corresponding section 309 Cr.P.C) and whether the provisions gave unfettered and arbitrary power to the Magistrate. In para no.12 of this pronouncement, while dealing with the issue in question, Full Bench of Hon'ble Apex Court held as under:
Detention pursuant to an order of remand which appropriately falls within the terms of Sec.344 is accordingly not open to challenge in habeas corpus.
14. Heard the learned counsels for the parties, and considered their respective arguments.
15. As per Sh.Bajwa, the learned Sr.Advocate appearing for the petitioners, in the case in hand, besides the offences under Secs.326,308, 328 and 120B of the Indian Penal Code for which matter was initially registered, the offences punishable under the provisions of the Act of 1940 and Act of 2000 were also added during investigation and since the Act of 1940 is a special statue, therefore, as per Sec.32(1) of the said Act, only complaint could be filed by Drugs Inspector and not a report under Sec.173(2) Cr.P.C. by the S.H.O. He further drew our attention to Section 32(1) of the Drugs & Cosmetics Act, 1940 and submitted that Section 32(1) specifically provides that no prosecution shall be instituted under this Chapter except by an Inspector and, therefore, the cognizance has been taken by the ACJM Hindaun city without there being any complaint by the authorized person in accordance with Sec.32(1) of the Act of 1940 and, as such, there is no valid and lawful cognizance and consequently the orders by which Dr.H.N.Singh and Dr.Girish Agrawal were remanded to the judicial custody since 14.6.09 are unlawful and therefore the custody of both the petitioners and their detention in jail since 14.6.09 to 22.8.09 and thereafter upto 5.11.09 is unlawful.
16. Learned Govt. Advocate, emphatically opposed the petitioners' contentions raising a preliminary objection that since the petitioners have already availed alternative remedy under Sec.482 Cr.P.C., therefore, the writ petitions of habeas corpus filed by the wife and son for the release of Dr.H.N.Singh and Dr.Girish Agrawal were not maintainable. It was also pointed out that amongst other grounds, the grounds on which the writ petitions of habeas corpus were founded, were also there in S.B.Cr.Misc.Pet. No.1854/09 dt. 4.9.09 under Sec.482 Cr.P.C. and in view of the fact that the remedy under Sec.482 Cr.P.C. has already been availed which is a statutory remedy, these writ petitions deserve to be dismissed on the ground of alternative remedy available alone. According to him, even otherwise, the detention of accused pursuant to an order under sec 309 Cr.P.C can not be challenged by way of writ of Habeas Corpus.
17. With regard to this preliminary objection, learned counsel for the petitioners contended that so far as the provisions of Sec.482 Cr.P.C. are concerned, these provisions contain inherent powers of the High Court under the Criminal Procedure Code and it only provides that nothing in the Cr.P.C. shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. His contention is that invoking such inherent powers under Sec.482 Cr.P.C. cannot be termed as adequate and an equally efficacious alternative remedy. May be that petitions under Sec.482 Cr.P.C. filed by petitioners are pending, they are still within their rights to move this Court to avail the remedy of habeas corpus provided in the Constitution of India and in no case, these habeas corpus petitions can be thrown out on the ground of alternative remedy under Sec.482 Cr.P.C. more particularly when they are agitating for their fundamental rights under Art. 21 of the Constitution of India, through these writ petitions. Merely because one of the grounds is common in the petition under Sec.482 Cr.P.C. and in these habeas corpus petitions, it cannot be said that these habeas corpus petitions are not maintainable on account of pendency of petitions under Sec.482 Cr.P.C. According to the learned counsel for the petitioners, the scope of the petition and powers under Sec.482 Cr.P.C. are entirely different than the scope of a habeas corpus petition and once the question of personal liberty is involved, the writ petition of habeas corpus cannot be thrown out on account of the pendency of the petition under Sec.482 Cr.P.C. It was also submitted by learned counsel for the petitioners that availability and even availing of an alternative remedy is no bar to the maintainability of the petition under Art. 226 of the Constitution of India and it is only a self imposed discipline by the High Court that in appropriate cases, it may refuse to entertain the writ petition when alternative remedy is available or it has been availed and otherwise, it is only the rule of convenience and not a rule of law and such a valuable constitutional remedy cannot be denied at the alter of technical and jejune objections. In support of his submissions, Sh.Bajwa has placed reliance on Ram and Shyam Company Vs. State of Haryana and ors. (AIR 1985 SC 1147).
18. The submissions of both the sides on the preliminary objection raised by the learned Govt. Advocate were considered and record was minutely scanned.
19. Hon'ble the Apex Court laying the principle of law in this regard in the matter of Ram and Shyam Company (supra), held as under:
9. .......Ordinarily it is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art.226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the court. Where the order complained against, is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits.
20. Division Bench of this court in the matter of Smt.Usha Khurana Vs. The State of Rajasthan reported in RCC Apr.1994,169 in para no.19 has held as under:
Be that as it may, the objection that the remedy of filing a petition under Sec.482 Cr.P.C. for quashing the proceedings in the main case, had already been availed of and, therefore, this writ petition should not be entertained, does not detain us from proceeding further with the hearing of this petition of habeas corpus on merits, for two reasons- (i) Section 482 Cr.P.C. is a provision contained in the Code of Criminal Procedure saving inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of the court or otherwise to secure the ends of justice and filing of a petition to invoke the inherent powers of the High Court under this Section cannot be a substitute of the constitutional remedy of filing a writ of habeas corpus as case for quashing proceedings in a pending criminal case is not comparable with the case of seeking directions for restoration of liberty under Art. 226 of the Constitution of India, by way of writ of habeas corpus; and (ii) whenever the complaint about the breach of the fundamental rights with regard to the right of life and security, the bar of alternative remedy, whether available or availed, under the statute, cannot be allowed to frustrate and defeat the constitutional remedy under Article 226 of the Constitution of India. We, therefore, reject the preliminary objection raised by the learned Govt. Advocate and hold that this writ petition of habeas corpus filed for the release of Sh.Harbans Lal Khurana cannot be thrown out because a petition under Sec.482 Cr.P.C. is pending in the High Court, for the quashing of the criminal proceedings along with an application for bail-SBCr.Misc.Bail Application No.937/1993 under Section 439 Cr.P.C.
21.Similarly in the case of State of Bombay and another Vs. The United Motors (India) Ltd. and ors. (AIR 1953 SC 252), it has been observed in para no.9 and held as under:
There it was held that the principle that a court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental right had been infringed and sought relief under Article 226.
22. Learned counsel for the petitioners further placed reliance on the judicial pronouncement of Hon'ble Supreme Court in the case of Kharak Singh Vs. State of U.P. And ors.-AIR 1963 SC 1295. This was a matter wherein regulation 236, Cl.(b) of U.P. Police Regulations authorising domiciliary visits was held to be violative of Art.21 of the Constitution of India. In para no.16, Hon'ble Apex Court, while dealing with the writ of mandamus under Art.32 of the Constitution, held as under:
16. ...... The fact that an act by the State executive or by a State functionary acting under a pretended authority gives rise to an action at common law or even under a statute and that the injured citizen or person may have redress in the ordinary courts is wholly immaterial and, we would add, irrelevant for considering whether such action is an invasion of a fundamental right. An act of the State executive infringes a guaranteed liberty only when it is not authorized by a valid law or by any law as in this case, and every such illegal act would obviously give rise to a cause of action-civil or criminal at the instance of the injured person for redress. It is wholly erroneous to assume that before the jurisdiction of this court under Art.32 could be invoked the applicant must either establish that he has no other remedy adequate or otherwise or that he has exhausted such remedy as the law affords and has yet not obtained proper redress, for when once it is proved to the satisfaction of this court that by State action the fundamental right of a petitioner under Art. 32 has been infringed, it is not only the right but the duty of this court to afford relief to him by passing appropriate orders in that behalf.
23. The five Judges Bench of Hon'ble Apex Court in the matter of Himmatlal Harilal Mehta Vs. State of Madhya Pradesh and ors.-AIR 1954 Sc 403, while dealing with the validity of Sec.2(g) Explanation 2 of C.P. And Berar Sales Tax Act (2 of 1947) as amended by Act (15 of 1949), held that new Explanation II to Sec.2(g) was ultra vires.
24. The writ petition of mandamus was challenged by the petitioner praying that explanation II to Section 2(g) of the Act having been declared ultra vires, any imposition of sales tax on the appellant in Madhya Pradesh is without the authority of law, and that being so a threat by the State by using the coercive machinery of the impugned Act to realize it from the appellant, is a sufficient infringement of his fundamental right under Art.19(1)(g) and it was clearly entitled to relief under Art.226 of the Constitution. The Hon'ble Apex Court referring to its own decision in State of Bombay Vs. The United Motors (India) Ltd. (supra) held as under:
9. ....... the principle that a court will not issue a prerogative writ when an adequate alternative remedy was available does not apply where a party has come to the court with an allegation that his fundamental right had been infringed and sought relief under Art.226. Moreover, since the remedy provided by the C.P. And Berar Sales Tax Act is of an onerous and burdensome character and before the assessee can avail of it he has to deposit the whole amount of the tax, such a provision can hardly be described as an adequate alternative remedy.
25. Further reliance was placed by the learned counsel for the petitioners on the pronouncement in the matter of R v Governor of Pentonville Prison, ex parte Azam reported in All England Law Reports [1973]2 All ER,741. It was argued that writ of habeas corpus is a right whereby the court in three cases, mentioned herein above, raised questions i.e. (i) importance; (ii) many young citizens who were living in that country, were treated as illegal entrants and (iii) found to have entered the country clandestinely without reporting to the immigration authorities. In those three cases, illegal entrants were arrested and detained in the prison without trial and were removed under the direction of Home Secretary and each of them in the writ of habeas corpus claimed that the detention was unlawful. In that case, Stephenson LJ at page 759 observed as under:
...... Where a person is detained in custody pursuant to the sentence of a court of law, I agree with counsel for the respondents that he must challenge the legality of his detention by the prescribed procedure for appealing to a higher court or higher courts and not by such an application for habeas corpus: But when he is detained in custody pursuant to an order of the executive I am far from satisfied by the authorities on which counsel relies that the principles applicable to the exercise of the court's discretion in granting writs of mandamus or certiorari apply also to habeas corpus or that the existence of an alternative remedy However convenient, beneficial and effectual prevents the issue of the writ, . Certainly there is no such alternative remedy here and I agree with Lord Denning MR and Buckley LJ that we must examine the legality of the appellant's detention.
26. On the other hand, learned Govt. Advocate relying on the Judgment of Bohar Singh Vs. State of Punjab (FB)-1981 Cr.L.J.1141, argued that case of detention pursuant to an order of remand which appropriately falls within the term of Sec.344 Cr.P.C (corresponding section 309) is not open to challenge in habeas corpus. This was a matter wherein the convict was undergoing imprisonment under the judgment of criminal court which had achieved its finality. In that matter, the question was whether the convict who was under-going imprisonment under the judgment of criminal court, could prefer a writ of habeas corpus or not. Learned Govt. Advocate, relied on the Full Bench judgment of Punjab & Haryana High Court in the case of Bohar Singh (supra) wherein it was held as under:
In the light of the foregoing discussion the answer to the question posed at the very outset is rendered in the negative and it is held that a convict undergoing imprisonment under the judgment of a criminal court, which has become final, cannot prefer and maintain a writ of habeas corpus to assail his detention.
27. On the basis of discussion made herein above and in view of principles of law laid down by Honble Apex Court from time to time in this regard, we are of the considered view that the alternative remedy available or availed is no bar to the exercise of powers under Art. 226 of the Constitution and it has to be decided by the court in the facts & circumstances of the case available in each case. Therefore, we do not find any force in the preliminary objection of maintainability of these writ petitions raised by learned Government Advocate.
28. Next argument of learned counsel for the petitioners was that when special statute specifically provides certain procedure for the prosecution, then the principles of general law cannot be applied. His argument was that since in the case in hand, there is alleged to be commission of offences under special statutes namely Act of 1940 and Act of 2000, it was imperative to follow the provisions of special Act. His argument was that on the basis of written report, FIR 324/09 was registered for the offences punishable under Secs.336,328, 308 and 120B IPC on 14.6.2009 and petitioners were taken into custody. On 16.6.09, further offences punishable under Sec.18(a)(vi), 18(c) and 27(b)(d) of the Act of 1940 read with Rule 122E,A,F,G schedule part XII B(H) of the Drugs and Cosmetics Rules and Sec.23, 25 and 27 of the Act of 2000 were added. During investigation, eventually report under Sec.173(2) Cr.P.C. was submitted in the court of ACJM, Hindaun city on 13.8.09 for offence punishable under Sec.s.307,308,336,365 and 120B IPC and under Secs.18(a)(vi), 18(c), 27(b)(d) of the Act of 1940 r/w Rules 122E,A,F,G of the Rules of 1945 and under Sec.23, 25 and 27 of the Act of 2000. His argument was that with the adding of offences relating to special statute namely Drugs and Cosmetics Act, 1940, as also Juvenile Justice Act, 2000, the police was no more competent to investigate the same, and was not authorized to institute prosecution for offences punishable under the Act of 1940. Similarly for the same reason, the Magistrate had no jurisdiction to take cognizance of offences punishable under the Act of 1940 and remand the petitioners to custody on the basis of report submitted by police under Sec.173(2) Cr.P.C. According to the learned counsel for the petitioners, it is an established position of law that procedure prescribed in special statute overrides the procedure prescribed in general statute. In other words, once offences under the Act of 1940 were required to be inquired into and prosecution was to be instituted in respect of those offences, the procedure provided in Code of Criminal procedure will give way to the specific procedure provided in the special statute. Section 4(2) Cr.P.C. reinforces the position of law. His further argument was that with the addition of offences under the Act of 1940 on 16.6.09, the proceedings were got converted into complaint case and Police lost jurisdiction to investigate into the offences. Since the police was not authorized to institute prosecution, the report filed under Sec.173(2) Cr.P.C. had no sanctity. The only way to initiate prosecution was by following the procedure provided in a complaint case. Cognizance of offences under the Act of 1940 could be taken only after a regular complaint in this regard was filed under Section 200 Cr.P.C. by the person duly authorized under Section 32(1) of the Act of 1940. Hence the petitioners who were also allegedly accused of offences under the Act of 1940, could not be arrested until process under Sec. 204 Cr.P.C. was issued by the competent court. His contention was that the cognizance was taken by ACJM on 18.8.2009 and case was committed for trial to the court of Addl. Sessions Judge, Hindaun on 22.8.09. Eventually the trial was transferred to the court of ADJ (Fast Track), Hindaun city who also remanded the petitioners to judicial custody from time to time while adjourning the case. Thus from the date of arrest i.e. 14.6.09 to 22.8.09 and thereafter upto 5.11.09, the petitioners were remanded to custody by learned ACJM, ADJ and ADJ(Fast track) Hindaun city till the filing of petitions. In support of his arguments, reliance was placed on Ram Narain Singh Vs. The State of Delhi and ors.-AIR 1953 SC 277 Stating that Honble Apex Court has been consistently declaring custody emanating from remand orders lacking legal sanctity as unlawful. According to him the custody of the petitioners, since inception was absolutely illegal because no criminal complaint under Sec.200 Cr.P.C. ever came to be filed and no process was ever issued under Section 204 Cr.P.C., the arrest of petitioners was illegal since inception and wholly without jurisdiction. Therefore, the fundamental right of personal liberty of petitioners guaranteed under Article 21 of the Constitution of India, has been continuously invaded without legal authority as the provisions of special statute i.e. the act of 1940 were not followed. In support of his arguments, Sh.Bajwa, has placed reliance on catena of judicial pronouncements of Hon'ble Supreme Court as well as of various High Courts.
29. Citing the recent judicial pronouncement of Honble Apex Court in the matter of Jeewan Kumar Raut and anr. Vs. Central Bureau of Investigation-JT 2009(9) Sc 188 he vehemently argued that Transplantation of Human Organs Act being a special statute, was held to have prevailed over the general law.
30. In support of his arguments of provisions of special statute prevailing over general law, he also relied upon the judgment of Patna High Court in the matter of Satyendra Kumar Singh @ Sailendra Kumar Singh and anr. Vs. State of Bihar reported in 1991(3) Crimes IX,76. This was a matter pertaining to obtaining of previous sanction which was not obtained under the Essential Commodities Act, 1955 and for want of previous sanction, prosecution was held as bad in law because there was contravention of Display order and previous sanction was must.
31. In the same manner, reliance was placed on AIR 1965 SC,66 (Avtar Singh Vs. State of Punjab). This matter pertained to the Indian Electricity Act and as per provisions of the Act, prosecution in respect of theft of electricity was found to be incompetent unless it was instituted at the instance of a person named in S.50 of the Act. Sec.50 of the Indian Electricity Act, 1910 reads as under:
50. Institution of prosecution.- No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order thereunder, except at the instance of the Government [or a State Electricity Board] or an [Electrical Inspector], or of a person aggrieved by the same.
32. Another judicial pronouncement relied upon by the petitioners was AIR 1971 Kerala 193-State of Kerala Vs. V.P.Enadeen. This matter pertained to the provisions of Section 20 of the Prevention of Food Adulteration Act, 1954 wherein it was held that the Magistrate could not take cognizance of offence upon a complaint filed by a person not authorized by Government under Sec.20(1) of the Act. Our attention was drawn to the beginning words of Sec.20(1) which reads as under:
20. Cognizance and trial of offences:
No prosecution for an offence under this Act, not being an offence under section 14 or Section 14-A shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorized in this behalf, by general or special order, by the Central Government or the State Government:
Provided that a prosecution for an offence under this Act may be instituted by a purchaser [or recognized consumer association] referred to in Sec.12,[if he or it produces] in Court a copy of the report of the public analyst along with the complaint.
No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.
Notwith-standing anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under sub-section (1AA) of Section 16 shall be cognizable and non-bailable.
33. Another case also pertaining to the said provision of P.F. Act titled as A.K.Roy and anr. Vs. State of Punjab and others reported in 1986(4) SCC 326, was also cited by Sh.Bajwa. This was a cae where there was a sub-delegation and was held that Food (Health) Authority was not competent to sub-delegate that power to Food Inspector. It was held that Rule 3 of Prevention of Food Adulteration Act (Punjab) Rules, 1958 was to be read subject to Sec.20(1) of P.F.Act. The Honble Apex Court observed that the language of sub-section (1) of Section 20 of the Act clearly shows that it inhibits institution of prosecution for an offence under the Act except on fulfillment of one or the other of the two conditions. Either the prosecution must be instituted by the Central Government or the State Government or it must be instituted with the written consent of any of the four specified categories of authorities or persons. If either of these two conditions is satisfied, there would be sufficient authority for the institution of such a prosecution for an offence under the Act.
34. Another Judgment of Punjab & Haryana High Court passed in Cr.Revision No.617/72 decided on 7th March, 1974 (Hari Kishan Vs. The State of Haryana) reported in 1974 C.L.R.,430 was relied upon by the petitioners. This matter related to Telegraph Wires (Unlawful Possession) Act, 1950. In this case also, as per Sec.7 of the Act, cognizance could only be taken upon a complaint by a competent authority and that since specific provisions for filing of complaint was there, therefore, the police report was void.
35. Another Judgment of Andhra Pradesh High Court reported in 1986(3) Crimes, 117 (M/s. Lachman Singh and brothers and anr. Vs. The Labour and Enforcement Officer (Central) and another, pertains to Contract Labour (Regulation and Abolition) Act, 1970 wherein it was held that the Labour Enforcement Officer was not competent to initiate proceedings. In this case, it was also held that Labour Enforcement Officer had no authority to initiate proceedings for prosecution. The Inspector appointed by State Government in its behalf was competent and, therefore, the prosecution was quashed.
36. Learned counsel for the petitioners further relied upon AIR (32) 1945 Federal Court,16-Basdeo Agarwalla Vs. Emperor. This matter pertained to Drugs Control Order,1943, Cl.16. This also dealt with the sanction purporting to be given by Provincial Government which was found to be valid. In this case, it was held that prosecution was clearly instituted without the previous sanction required by Cl.16 and as it was not possible to severe the proceedings prior to 24th May from those occurring on and after that date and as when the sanction was obtained, no new start was made, the whole proceedings were null and void.
37. Another case relied upon by learned counsel for the petitioners is AIR 1861 Patna,203- Ramautar Mahton Vs. The State. This matter relates to want of valid sanction for prosecution under Sec.5(2) of Prevention of Corruption Act, 1947 because it was found that sanction under Sec.161 of the Penal Code cannot be a valid sanction relating to prosecution for a quite different offence covered by Sec.5(2) of the Prevention of Corruption Act, 1947.
38. The matter of Abdul Naim Vs. State of Orissa.- 2000 Cr.L.J.,1888 pertained to Sec.110 of Criminal Procedure Code which is related to security for good behaviour from habitual offender and it was held that police has no power to arrest, person who is being proceeded against, in absence of production warrant from Magistrate.
39. Another judgment relied upon by Mr.Bajwa AIR 1953 SC,277-Ram Narayan Singh Vs. The State of Delhi and ors, pertains to the detention without remand. It was a matter where period of remand had expired and fresh order of remand committing him to further custody was found to be without authority and it was held as illegal.
40. Learned counsel for the petitioners in this regard has also placed reliance in the matter of State of Tamil Nadu Vs. Paramasiva Pandian reported in 2002(1) SCC,15. In this case remand order passed by special court long after it had ceased to exercise jurisdiction in cases under the E.C.Act was found to have been passed without jurisdiction and the special court dealing with NDPS cases could not have passed the remand orders under E.C.Act.
41. Placing reliance on the Single Bench order passed in Cr.Misc.Petition under Sec.482 Cr.P.C. by Punjab & Haryana High Court in the matter of Rajeev Kumar Vs. State of Punjab reported in 1997(4) RCR Cr.,846, it was argued that in case of contravention of provisions of Drugs & Cosmetics Act, 1940, complaint lies by the Drugs Inspector to the Court and not the prosecution by the police. Again in the matter of Chandhan Singh Vs. State of Haryana reported in 2004(1) RCR(Cr.), 724. Learned Single Judge of Punjab & Haryana High Court, relying on the Rajeev Kumar's case (supra),found that in cases of contravention of provisions of Drugs & Cosmetics Act, 1940, only Drug Inspector could file the complaint.
42. We have carefully gone through the facts of both the cases mentioned above decided by Single Bench of Punjab & Haryana High Court and we are of the considered opinion that facts and circumstances of these cases were different, hence not applicable on the present case. Chandhan Singh's (supra) case related to anticipatory bail and in that case, without waiting for the reply to show cause notice already given by the Drugs Inspector, FIR was registered in the police station and that too for offences under the Act of 1940 and later on Sec.420 IPC was added whereas in the present case the FIR was initially registered for the offences under Indian Penal Code, and later during investigation, offences under the Act of 1940 were added. The Court, while accepting anticipatory bail, observed that since the petitioners had already joined the investigation, pre-arrest bail could be granted. In Rajeev Kumar's case(supra), the learned single Judge was dealing with Cr.Misc. petition u/s 482 Cr.P.C and the case was registered under the NDPS Act. This case is also distinguishable as the petitioner in that case was running a medical store and was found in possession of prohibited drugs beyond permissible limits. Some of the drugs were held to be not under the mischief of Sec.22 of the NDPS Act,1985 and were found to be covered under Drugs & Cosmetics Act, 1940.
43. We have carefully gone through the recent judicial pronouncement of Honble Apex Court in the matter of Jeewan Kumar Raut and anr. Vs. Central Bureau of Investigation reported in JT 2009(9) SC 188 and also scanned the provisions of TOHO which is a special statute, Honble Apex Court laid down the principle of law in paras 15,16, 19 and 20.1 which read as under:
15. TOHO being a special statute, section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. According to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences. TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code.
16. The investigation in terms of Section 13(3)(iv) of TOHO, thus, must be conducted by an authorized officer. Nobody else could do it. For the aforementioned reasons, the Officer Incharge of the Gurgaon Police Station had no other option but to hand over the investigation to the appropriate authority.
19. Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. Respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of sub-section (2) of Section 173 of the Code did not and could not arise. In other words, if no police report could be filed, sub-section (2) of section 167 of the Code was not attracted.
20.1. To put it differently, upon completion of the investigation, an authorized officer could only file a complaint and not a police report, as a specific bar has been created by the Parliament. In that view of the matter, the police report being not a complaint and vice-versa, it was obligatory on the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid down in TOHO, thus, would permit the respondent to file a complaint and not a report which course of action could have been taken recourse to but for the special provisions contained in Section 22 of TOHO.
44. In this regard, it will be worthwhile to look into the provisions of special statute of Transplantation of Human Organs Act (hereinafter referred to be as TOHO). Chapter IV of TOHO deals with appropriate authority and Section 13 of the said Act reads as under:
13.Appropriate Authority:
(1) The Central Government shall appoint by notification, one or more officers as Appropriate Authorities for each of the Union territories for the purposes of this Act.
(2) The State Government shall appoint, by notification, one or more officers as Appropriate Authorities for the purposes of this Act.
(3) The Appropriate Authority shall perform the following functions, namely:-
(i) to grant registration under sub-section (1) of section 15 or renew registration under sub-section (3) of that section;
(ii) to suspend or cancel registration under sub-section (2) of section 16;
(iii)to enforce such standards, as may be prescribed, for hospitals engaged in the removal, storage or transplantation of any human organ;
(iv)to investigate any complaint of breach of any of the provisions of this Act or any of the rules made thereunder and take appropriate action;
(v) to inspect hospitals periodically for examination of the quality of transplantation and the follow up medical care to persons who have undergone transplantation and persons from whom organs are removed; and
(vi) to undertake such other measures as may be prescribed.
45. Chapter VI of TOHO deals with offences and penalties. Section 22 thereof relating to cognizance of offences reads as under:
22. Cognizance of offences: No court shall take cognizance of an offence under this Act except on a complaint made by:-
(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or the State Government or, as the case may be, the Appropriate Authority; or
(b) a person who has given notice of not less than sixty days, in such manner as may be prescribed, to the Appropriate Authority concerned, of the alleged offence and of his intention to make a complaint to the court.
No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
Where a complaint has been made under clause (b) of sub-section (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.
46. As is clear from the objects and reasons for passing the said special statute, it was enacted to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto. Ordinarily, any person can set the criminal law in motion. The Parliament and the State Legislatures, however, keeping in view the sensitivity and/or importance of the subject, have carved out specific areas where violations of any of the provisions of a special statute like TOHO can be dealt with only by the authorities specified therein.
47. It is clear that TOHO being a special statute and the provisions laid therein are imperative and that they were required to be followed mandatorily. The facts of Jeewan Kumar Raut's case (supra), were that an FIR lodged before the Officer Incharge of the Gurgaon Police Station, was by way of information. It disclosed not only commission of an offence under TOHO but also under various provisions of the Indian Penal Code. The Officer Incharge of the Police Station, however, was not authorized by the appropriate government to deal with the matter in relation to TOHO. Laying analogy, learned counsel for the petitioners argued that in that case, it was held that FIR was lodged at Gurgaon Police Station and CBI could not have filed police report.
48. In para 20.1 of Jeewan Kumar Raut's case (supra), Hon'ble Apex Court in the facts & circumstances of that case held that upon completion of investigation, an authorized officer could only file a complaint and not a police report, as a specific bar had been created by the Parliament. In that view of the matter, the police report being not a complaint and vice-versa, it was obligatory on the part of the respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid down in TOHO, thus, would permit the respondents to file a complaint and not a report which course of action could have been taken recourse to but for the special provisions contained in section 22 of the TOHO.
49. We have considered the arguments advanced by both the parties and as held by Honble Apex Court in Jeewan Kumar Rauts case (supra), we hold that when the special statute provides for certain procedure for taking cognizance, that has to be mandatorily followed and that provisions of special statute will prevail over the general law.
50. Now we proceed to examine the present case in the light of principle of law, laid down, herein above, as to whether under the Act of 1940, prosecution can only be instituted by Drugs Inspector by way of filing of criminal complaint in the court of law.
51. A bare reading of Sec.32 (1) of the Act of 1940 clearly demonstrates that there was no provision for filing a complaint only . Section 32(1) of the Act of 1940, reads as under:
32. Cognizance of offences- (1)No prosecution under this Chapter shall be instituted except by-
(a) an Inspector; or
(b) any gazetted officer of the Central Government or a State Government authorized in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or
(c) the person aggrieved; or
(d) a recognized consumer association whether such person is a member of that association or not.(2)
(3)chapter
52. The words used in Section 32(1) are No prosecution shall be instituted except by (a) an Inspector; or (b)......or (c)the person aggrieved; or (d)..... This is a special statute which is mainly concerned with the standards and purity of drugs manufactured in this country and control of the manufacture, sale and distribution of drugs and that this is a consumer protection legislation. Since the Act originally did not confer any powers on the recognized consumer associations or aggrieved person, therefore, amendment was introduced by way of Act no.71 of 1986. Sec.3 of Drugs & Cosmetics (Amendment) Act of 1986 reads as under:
Amendment of Section 32:-
In Section 32 of the Principal Act, in sub-section (1), after the words an Inspector, the words or by the person aggrieved or by a recognized consumer association whether such person is a member of that association or not shall be inserted.
53. In the case in hand, written report was lodged by Bacchu, who happens to be the father of minor victim Manoj, who is very well covered within the meaning of words person aggrieved inserted in Section 32(1) of the Act of 1940 as amended in 1986. The legislature, in its wisdom, did not use the word complaint alone in Sec.32(1). The beginning words of Sec.32 of the Act of 1940 read as under:
32. Cognizance of offences (1)No prosecution under this Chapter shall be instituted except by-
(a) an Inspector; or
(b) any gazetted officer of the Central Government or a State Government authorized in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or
(c)the person aggrieved; or
(d) a recognized consumer association whether such person is a member of that association or not.
54. Thus from the perusal of above, it is clear that prosecution has to be instituted either by Drugs Inspector or by...(b)....or by (c) the person aggrieved; or...(d)a recognized consumer association.... and the word prosecution, by no stretch of imagination, can be limited to mean a complaint only. The written report filed by aggrieved person is squarely covered under Sec.32(1)(c) of the Act of 1940 as amended in 1986 by insertion of word or aggrieved person.
55. Patna High Court in the matter of Raghunath Bhagat and anr. Vs. The State of Bihar and anr reported in 1991 Cr.L.J.2054 dealing with an application under Sec.482 Cr.P.C for quashing an FIR under Sec.420 IPC as well as u/s.27 of the Act of 1940, held that after the amendment to the aforesaid section, aggrieved person can also file prosecution. In view of clear provisions of Sec.32(1), the High Court found that there was no force in the arguments that because the complaint had not been filed by Drugs Inspector, therefore, the cognizance against the petitioner was bad in law. The court found that there was no illegality committed by the court below in taking cognizance against the petitioner. It is worth mentioning that in that case also, besides section 420 IPC, cognizance under Sec.27 of the Act of 1940, had also been taken and that was also on the basis of a written report lodged at Kotwali, P.S.-Mungair by opposite party no.2. So in our view, the ratio laid down in that case is squarely applicable in the present case.
56. We have considered this aspect of the matter and we agree that even while amending the Act of 1940 in 1986 and thereafter again in 2008 (Act 26 of 2008) the legislature, in its wisdom did not think it proper to substitute the word complaint in sec.32(1). The plain reading of Sec.32(1) shows that it begins with the words No prosecution shall be instituted except.
57. Now the question arises as to what does the word prosecution mean. The word is defined in Blacks Law Dictionary Vth Edition as under:
Prosecution- A criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with Crime. U.S. v Reisinger,128 U.S. 398, 9 S.Ct. 99, 32 L.Ed.480].
58. In words & Phrases, In General, term Prosecution includes every step in action, from its commencement to its final determination. Ray Wong v. Earle C. Anthony, Inc. 247 P. 894, 895, 199 Cal.15.
59. Prosecution in its general meaning can be said to be an act or process of prosecuting. In other words, the word prosecution can be defined as the institution and conduct of legal proceedings against a defendant for criminal behaviour.
60. As decided in McAdory Vs. State, 68, So.2d 68,69,37 Ala.App.349- prosecution is descriptive of means adopted to bring an accused to justice by due process of law.
61. The term prosecution has been defined in legal Glossary by Govt. of India Ministry of Law & Justice as under:
The institution and carrying on of the legal proceedings against a person.
62. The word institute/institution as defined in Blacks Law Dictionary means-
An act of instituting, or the commencement of an action.
63. Honble Apex Court in the matter of Dhanji Shaw Rattanji Karani Vs. Bombay Municipality reported in Bombay Law Reporter 1945, P.304, while dealing with the word prosecution observed that:
to prosecute is to set the law in motion.
64. Full Bench of Hon'ble Apex Court in the matter of Thomas Dana Vs. State of Punjab reported in AIR 1959 SC,375, while dealing with a case under the provisions of Sea Customs Act,1878, dealt with the word prosecution in para 11 of the judgment which reads as under:
Prosecution means a proceeding either by way of indictment or information in the criminal courts in order to put an offender upon his trial.....
65. The provisions of Sec.167(1) of the Sea Customs Act, 1878 were interpreted and it was observed that the legislature, in its wisdom, has used the words used therein as it was aware of the distinction made through out the Schedule to Sec.167, between a proceeding before Revenue Authorities by way of enforcing the preventive and penal provisions of the Schedule and a criminal trial before a Magistrate, with a view to punishing offenders under the provisions of the same sections. Hon'ble Apex Court held further that it was in the teeth of these provisions itself. Section 167A of Sea Customs Act reads as under:
167A. No Court shall take cognizance of any offence relating to smuggling of goods punishable under item 81 of the Schedule to Section 167, except upon complaint in writing, made by the Chief Customs Officer or any other officer of customs not lower in rank than an Assistant Collector of Customs authorized in this behalf by Chief Customs Officer.
66. As is clear from above that the word complaint in writing by the named officers was a condition precedent. Therefore, it can be concluded that the legislature even while amending the Act of 1940, did not use the word complaint in Sec.32(1). On the contrary, the amendment of 1986 (Act 71 of 1986) rather expanded the scope by even authorising the aggrieved person as well as consumer association. The Act was again amended in 2008 but no such phrase as complaint was used. The beginning words used in Sec.32(1) of the Act of 1940 are-
No prosecution shall be instituted except by..... and it did not use the words No court shall take cognizance except by.......'complaint'.
67. Thus it can be concluded that on the basis of discussion made herein above and in the light of specific wordings used in Sec.32(1) of the Act of 1940, it is held that aggrieved person is competent to institute/commence the prosecution under the Act of 1940 and in the case in hand, the aggrieved person Bachhu who is the father of minor victim Manoj, was competent to get the machinery into motion. The legislature, since has not used the word complaint in the section, therefore, the word prosecution used cannot be limited to the filing of complaint only.
68. In this view of the matter, we are of the considered view that there is no illegality in the order dated 18.8.09 whereby cognizance against the petitioners was taken and various remand orders were issued from time to time by the learned Addl. Chief Judicial Magistrate and ADJ (Fast Track), Hindaun city after committal where the case is presently pending. As the specific provision under the Act of 1940 namely Sec.32(1) not only authorizes the Drugs Inspectors to institute prosecution but also aggrieved person as laid down in Sec.32(1)(c) and the word prosecution used in Sec.32(1) can only mean an act or process of prosecuting and act or process of prosecuting could be on the basis of a written report by aggrieved person (Here Mr.Bachhu, the father of minor victim Manoj) or by the drugs Inspectors. Therefore, we are satisfied that the detention of both the petitioners is not illegal or unlawful so as to issue a writ of habeas corpus.
69. In view of above, we do not find any merit in the arguments of learned counsel for the petitioners. Consequently, both the petitions for writ of habeas corpus, being devoid of merit, deserve to be dismissed and are hereby dismissed.
(Meena V.Gomber),J (Narendra Kumar Jain)J. Sandeep/-