Calcutta High Court (Appellete Side)
Rana Bandyopadhyay & Anr vs The State Of West Bengal & Anr on 5 July, 2022
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
Form J(2) IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
IA No.:CRAN/1/2022
in
CRR 515 of 2021
Rana Bandyopadhyay & Anr.
Vs.
The State of West Bengal & Anr.
For the petitioners : Mr. Amarta Ghose, Adv.
Mr. Prasun Ghosh, Adv.
For the State : Mr. Sanjay Bardhan, , Adv.,
Ms. Manisha Sharma, Adv.
Heard &
Judgement on : 05.07.2022.
Bibek Chaudhuri, J.
The instant criminal revision filed by the accused persons of G.R. Case No. 1117/2020 is for quashing of the above-numbered G.R. Case arising out of Chinsurah Police Station Case No. 232/2020 dated 18th August, 2020 under Section 27(b) of the Drugs and Cosmetics Act, 1940 (hereafter described as the said Act) presently pending before the Learned Chief Judicial Magistrate at Hooghly. 2
Chinsurah Police Station Case No. 232/2020 was registered on 18th August, 2020 on the basis of a suo motu complaint submitted by one Suman Biswas, Inspector of Drugs stating, inter alia, that on the selfsame day the de facto complainant along with the Senior Inspectors of Drugs, Officers of Enforcement Branch and Members of the Force attached to Chandernagore Commissionerate conducted a search operation at premises no. 476/226, Satya Pirtala Taldanga Road within Police Station - Chinsurah and found that manufacturing process was going on under the vigil of the petitioners. During inspection, the de facto complainant found and seized huge quantity of manufactured hand sanitizer without label, some empty bottles and some labels with trade name 'spot on'. It was alleged by the Investigating Officer that the hand sanitizers being the scheduled drugs was manufactured in gross violation of schedule 'M' of the said Act and the Rules thereunder. There was every reason to believe that the seized drugs were adulterated in view of the fact that quality control measure was not taken by the petitioners while manufacturing the said drugs. The petitioners were arrested by the police and he lodged a complaint against the petitioners under the above-named penal provisions under the said Act.
3
It is submitted on behalf of the petitioners, at the outset, that from the FIR it transpires that the complainant under whose leadership search and seizure was conducted did not seize any manufacturing apparatus of hand sanitizers. The complainant found huge quantity of manufactured hand sanitizer and some empty bottles and lebels. The said articles were seized by the said Police Officer. Therefore, the suo motu complaint discloses the fact of storing and packaging of hand sanitizers.
Next he draws my attention to the Ministry of Health and Family Welfare Notification No. S.O. 2451(E) dated 27 th July, 2020. The said notification runs thus:-
"S.O. 2451(E). - Whereas, there has been an outbreak of COVID - 19 pandemic in India and worldwide;
Whereas, several representations requesting to exempt hand sanitizers from the requirement of sale licence under the provisions of Chapter IV of the Drugs and Cosmetics Act, 1940 and the provisions of the Drugs and Cosmetics Rules, 1945 for stocking or sale of the drug have been received;
Whereas, the Central Government is satisfied that hand sanitizers are essential to meet the requirements of emergency 4 arising due to COVID - 19 pandemic and their easy availability is made in public interest;
Whereas, the Central Government considers it necessary that hand sanitizers are required to be made widely available to the public at large;
Now, therefore, in exercise of the powers conferred by section 26B of the Drugs and Cosmetics Act, 1940 (23 of 1940), the Central Government, hereby directs that the drug, namely, hand sanitizer shall be exempted from the requirement of sale licence for its stocking or sale under the provisions of Chapter IV of the Drugs and Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945, subject to the condition that provisions of condition (17) of rule 65 of the said Rules are complied with by the person stocking or selling hand sanitizers.
This order shall come into force on the date of its publication in the Official Gazette.
[F. No. X. 11014/3/2020-DR] Dr. Mandeep K Bhandari, Jr. Secy."
Taking me to the above provision it is submitted by the Learned Advocate for the petitioners that from the date of above notification hand sanitizer was exempted from the requirement of sale licence for 5 its stocking or sale under the provision of Chapter IV of the said Act and the Rules framed thereunder.
Next it is submitted by the Learned Advocate for the petitioners that Section 18(a) prohibits a person from manufacturing for sale or for distribution, or sell, or stock or exhibit or offer for sale or distribute any drug .......etc. Section 18(b) prohibits sell or stock or exhibit or offer for sale or distribute any drug or cosmetic which has been imported or manufactured in contravention of any of the provisions of this Act or any Rule made thereunder.
Section 18(c) prohibits manufacturing for sale or for distribution or sell or stock or exhibit or offer for sale or distribute any drug or cosmetic except under and in accordance with the conditions of a licence issued for such purpose under Chapter IV of the said Act. According to the Learned Advocate for the petitioners the rigours of Section 18(a), (b) and (c) are not applicable in view of the notification dated 27th July, 2020 in respect of the hand sanitizers.
It is also submitted by him that the standard of quality of the seized hand sanitizers was examined by the State Drugs Control and Research Laboratory and it was opined that the seized drug is of standard quality. Therefore, the petitioners did not even violate the 6 standard quality norm of the hand sanitizers which they store for packaging and sale. Had the petitioners been engaged in manufacturing the hand sanitizers, the machinery, raw materials and other apparatus must have been seized by the complainant. In the absence of any seizure, the allegation of illegal manufacturing of drug in contravention of the said Act falls flat.
Learned Advocate for the petitioners next draws my attention to Section 32 of the said Act and submits that the Learned Magistrate committed an apparent error in taking cognizance of the offence against the accused persons in the absence of any complaint submitted by an Inspector appointed under the said Act or any Gazetted Officer of the Central Government or a State Government authorized in writing in this behalf or the person aggrieved or a recognized consumer. Police Officer cannot lodge a complaint under the said Act for registering a police case against the accused person. In support of his contention, he refers to a decision of the Hon'ble Supreme Court in Union of India -Vs.- Ashok Kumar Sharma & Ors. reported in AIR 2020 SC 5274. Paragraph 150 of the said judgement is relevant and reproduced hereinbelow:-
150. Thus, we may cull out our conclusions/directions as follows:7
I. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the Code of Criminal Procedure, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same.
II. There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated under Section 32(3) of the Act, i.e., if he has committed any cognizable offence under any other law.
III. Having regard to the scheme of the Code of Criminal procedure and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR under Section 154 of the Code of Criminal Procedure, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the Code of Criminal Procedure.8
IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu (Supra) and to follow the provisions of Code of Criminal Procedure. V. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act. We find substance in the stand taken by Learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard.
VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the 9 present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment.
VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the Code of Criminal Procedure, but also immediately report the arrests to their superior Officers". Thus, it is submitted by the Learned Advocate for the petitioners that the instant prosecution is abuse of the process of the Court and liable to be quashed.
Learned Public Prosecutor-in-Charge, on the other hand, submits that notification no. 2451(E) dated 27 th July, 2020 is not at all applicable in the instant case because the said notification exempts hand saitizers from the requirement of sale, licence or stocking or sell. The notification does not exempt illegal manufacturing of hand sanitizer without licence by the accused persons. The written complaint/suo motu FIR contains the allegation that the raid was 10 conducted on the allegation of illegal manufacturing of hand satinizer by the accused person. The said fact was corroborated by the witnesses in their statement recorded under Section 161 of the Code of Criminal Procedure at pages 19,20,21 and 23 of the case diary. Moreover, it also appears from the case diary that the investigation of the case has already been handed over to the Inspector appointed under the said Act and charge-sheet was submitted by the competent authority. Therefore, the objection raised by the Learned Advocate for the petitioners shall be considered at the time of trial. From the materials-on-record, prima facie case has been established against the accused persons and charge-sheet cannot be quashed in the instant case.
Having heard the Learned Counsels for the parties and on careful scrutiny of the entire materials-on-record and having regard to the legal provisions, this Court is not at all hesitant to note that a case under Drugs and Cosmetics Act cannot be initiated on the basis of a complaint made by a Police Officer. He is not a competent Officer under Section 32(a), nor is he a Gazetted Officer duly empowered by the Central Government or State Government, or a person aggrieved or a recognized consumer. The decision of the Hon'ble Supreme Court in Ashok Kumar Sharma (Supra) is pat on the point 11 regarding Police Officer's power prohibited under Section 32 of the said Act.
Furthermore, the seized drug was examined by the State Drugs Control and Research Laboratory. The concerned Authority submits that the drugs were of standard quality. Though there is an allegation against the petitioners that they were manufacturing the drugs there is absolutely no evidence in the case diary except the oral statement recorded under Section 161 of the Code of Criminal Procedure that the petitioners were engaged in manufacturing hand sanitizers. Stocking and packaging for sale of hand sanitizers were exempted from the requirement of having a licence.
For the reasons stated above, this Court is of the view that contention of further proceeding in G.R. Case No. 1117/2020 arising out of Chinsurah Police Station Case No. 232/2020 under Section 27(b) of the Drugs and Cosmetics Act for violations of Section 18(a), 18(b) and 18(c) of the said Act will be abuse of the process of the Court.
For the reasons stated above, the proceeding being G.R. No. 1117/2020 and related proceeding thereunder be quashed.
(Bibek Chaudhuri, J.) Srimanta, A.R.(Ct.)