Allahabad High Court
Ashok Kumar Sharma vs State Of U.P. And 3 Others on 2 August, 2018
Equivalent citations: AIRONLINE 2018 ALL 3791, AIRONLINE 2018 ALL 3773, AIRONLINE 2018 ALL 3232
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 1 Case :- CRIMINAL MISC. WRIT PETITION No. - 20338 of 2018 Petitioner :- Ashok Kumar Sharma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Udai Bhanu Singh Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Udai Bhanu Singh, learned counsel for the petitioner and Sri Deepak Mishra, learned A.G.A. for the State.
2. This Criminal Writ Petition has been filed with a prayer to quash the F.I.R. dated 22.06.2018 pertaining to Case Crime No. 0254 of 2018 under Sections 18(a)(i) and Section 27 of Drugs and Cosmetics Act, 1940 (to be referred from here onwards in short as Act), P.S. Mohammadabad, District Mau and simultaneously prayer is also made to issue a mandamus to not arrest the petitioner in pursuance of the said F.I.R.
3. As per the F.I.R., the facts of the case are that one Naushad Khan had made an online complaint, in pursuance of which, Commissioner (Food Protection and Drugs Administration) directed an enquiry to be held in respect of Sharda Narayan Clinic and Pharmacy which was conducted by Drug Inspector, Mau along with team of other Drug Inspectors i.e. Jai Singh and Shiv Kumar Nayak. In pursuance of the said direction for holding an enquiry, this team visited the said clinic at 01:00 p.m. on 22.06.2018 and after disclosing the reason why they had come, they entered the shop for the purpose of search. The person who was present in the shop i.e. Ashok Sharma (accused petitioner) was directed to show papers in respect of medicines which were stored in the said shop and licence was also directed to be shown for the sale of those drugs. The petitioner stated that he did not have any licence although he was owner of the said medical store and, therefore, it was found that he had stored the medicines without having proper licence and, thus, was found to have committed an offence under Section 18/27 of the Act. Form No. 16 was got executed in respect of the available drugs and also sample was collected with respect to the medicines and all the medicines were kept in a sack and, thereafter, the said sack was sealed on the spot. Form Nos. 17, 17-A and 18 were prepared on the spot. One copy each of the Form 17A and 17 were provided to the petitioner and a copy of the Form 16 was also provided to him and his signatures were obtained for having received those forms, thereafter, after the said recovery having been made from the petitioner, F.I.R. was lodged on the same day i.e. on 22.06.2018 at 18:46 hours at P.S. Mohammadabad, District Mau.
4. The contention of the learned counsel for the petitioner is that the provision as provided under Cr.P.C. for seizure of the medicines, was not adopted by the raiding party, hence, the said recovery is ambiguous and not sustainable in the eye of law, although in F.I.R., it is mentioned that Form 16 was provided to the petitioner but actually no Form 16 read with rule 55 and 145 (B) of the Drugs and Cosmetic Rules, 1945 (to be referred here onwards in short as Rules) was provided to the petitioner. Further, it is contended that under Section 3(e) of the Act, Inspector has been defined as one who is appointed by the Central Government or the State Government under Section 33(G). The provision contained under Section 21 of the Act indicates that this Act is a Special Act, therefore, general rules cannot apply hence, the impugned F.I.R. could not have been registered due to police officers being incompetent to register such a case. Further, it is contended that Section 13 of the Act deals with offences and Chapter IV of the Act, 1940 deals with manufacture, sale and distribution of the Drugs and Cosmetics and Section 16 deals with standard of quality that has to be applied in relation to a drug or cosmetic and that Section 17, 17A, 17B, 17C, 17D and 17E of the Act deal with Misbranded Drugs, Adulterated Drugs, Spurious Drugs and Misbranded Cosmetics, Adulterated Cosmetics & Spurious Cosmetics. Section 18 of the Act deals with prohibition of manufacture and sale of certain drugs and cosmetics. Section 32 of the Act provides for taking cognizance of the offence and specifically mentions that prosecution can be initiated under this Act only by an Inspector or any Gazetted Officer of the Central Government or of State Government so authorised or the person aggrieved or recognized consumer association whether such person is a member of that association or not. In the case at hand, Drug Inspector lodged the F.I.R. at P.S. Mohammadabad and thereby had given authority to the police officer to investigate the case which is barred under the Act. Since the very inception, this case suffers from illegality because the F.I.R. has been lodged unauthorizedly, hence the entire criminal proceedings vitiates and the impugned F.I.R. needs to be quashed.
5. Learned A.G.A. could not deny that the Act is a special statute, the provisions of which shall prevail over all the Acts.
6. It is apparent from the above-mentioned facts that on a complaint made by one Naushad Khan, a search was held in respect of Allopathic Drugs and Cosmetics being stored for sale in the above-mentioned clinic through Drug Inspectors and it was found that there was a large number of allopathic drugs stored there for the purpose of sale and also no licence could be shown for such storage and sale of those drugs which was mandatory under law. But the question involved herein is whether the Drug Inspector who made the inspection and found the said illegality having been committed by the petitioner, could lodge the F.I.R. for the purpose of investigation by police or should he have lodged a complaint as per provision contained under Section 32 of the Act. For an answer to this question, it would be pertinent to refer here the relevant provisions of the Act which are being reproduced herein below for the sake of convenience:-
5. Section 32 of the Drugs and Cosmetics Act, 1940 provides as follows:-
"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 authorised 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 recognised consumer association whether such person is a member of that association or not.
(2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shall try an offence punishable under this Chapter.] (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter."
6. The above provision clearly indicates that only an Inspector, a Gazetted Officer, a person aggrieved or a recognized consumer association would be eligible to move complaint for prosecuting a defaulter under this Act before Competent court.
7. It was essential to scrutinize other provisions of this Act to conclude as to what procedure was required to be followed in the present case and whether the F.I.R. in the present case was erroneously lodged.
8. The other relevant provisions of this Act need to be mentioned to understand the procedure.
Section 3(e) of the Act defines the Inspector which is as follows:-
"[(e) "Inspector" means--
(i) in relation to [Ayurvedic, Siddha or Unani] drug, an Inspector appointed by the Central Government or a State Government under section 33G; and
(ii) in relation to any other drug or cosmetic, an Inspector appointed by the Central Government or a State Government under section 21;]"
9. Under Sections 8, 9, 9A, 9B, 9C and 9D of chapter III which deals with import of Drugs and Cosmetics, Standards of Quality, Misbranded Drugs, Adulterated drugs, Spurious drugs, Misbranded Cosmetics, Adulterated Cosmetics and Spurious Cosmetics have been defined.
10. Under Section 13, the Offences and the Punishment awarded for them have been mentioned. Section 14 provides for Confiscation of the consignment of drugs in respect of which the offence has been found to have been committed and under Section 15, the jurisdiction of Court has been provided, specifically mentioning that no Court inferior to that of Metropolitan Magistrate or of a Judicial Magistrate of first class shall try an offence punishable under Section 13.
11. Chapter IV deals with Manufacture, Sale and Distribution of Drugs and Cosmetics in which, under Section 16 Standards of Quality has been defined and under Section 17, 17A, 17B, 17C, 17D and 17E, Misbranded drugs, Adulterated drugs, Spurious drugs, Misbranded cosmetics, Spurious cosmetics and Adulterated cosmetics have been defined.
12. Section 22 provides Powers of Inspectors which are being reproduced herein below for the sake of convenience:-
[22. Powers of Inspectors.--(1) Subject to the provisions of section 23 and of any rules made by the Central Government in this behalf, an Inspector may, within the local limits of the area for which he is appointed,--
[(a) inspect,--
(i) any premises wherein any drug or cosmetic is being manufactured and the means employed for standardising and testing the drug or cosmetic;
(ii) any premises wherein any drug or cosmetic is being sold, or stocked or exhibited or offered for sale, or distributed;
(b) take samples of any drug or cosmetic,--
(i) which is being manufactured or being sold or is stocked or exhibited or offered for sale, or is being distributed;
(ii) from any person who is in the course of conveying, delivering or preparing to deliver such drug or cosmetic to a purchaser or a consignee;
(c) at all reasonable times, with such assistance, if any, as he considers necessary,--
(i) search any person, who, he has reason to believe, has secreted about his person, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed; or
(ii) enter and search any place in which he has reason to believe that an offence under this Chapter has been, or is being, committed; or
(iii) stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days, or, unless the alleged offence is such that the defect may be removed by the possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or article by means of which the offence has been, or is being, committed or which may be employed for the commission of such offence;] [(cc) examine any record, register, document or any other material object found [with any person, or in any place, vehicle, vessel or other conveyance referred to in clause (c)], and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the Rules made thereunder;] [(cca) require any person to produce any record, register, or other document relating to the manufacture for sale or for distribution, stocking, exhibition for sale, offer for sale or distribution of any drug or cosmetic in respect of which he has reason to believe that an offence under this Chapter has been, or is being, committed;]
(d) exercise such other powers as may be necessary for carrying out the purposes of this Chapter or any rules made thereunder.
(2) The provisions of [the Code of Criminal Procedure, 1973 (2 of 1974)] shall, so far as may be, apply to any search or seizure under this Chapter as they apply to any search or seizure made under the authority of a warrant issued under [section 94] of the said Code.
[(2A) Every record, register or other document seized under clause (cc) or produced under clause (cca) shall be returned to the person, from whom they were seized or who produce the same, within a period of twenty days of the date of such seizure or production, as the case may be, after copies thereof or extracts therefrom certified by that person, in such manner as may be prescribed, have been taken.] (3) If any person wilfully obstructs an Inspector in the exercise of the powers conferred upon him by or under this Chapter [or refuses to produce any record, register or other document when so required under clause (cca) of sub-section (1),] he shall be punishable with imprisonment which may extend to three years, or with fine, or with both.]
13. Above provision indicates that the Inspector has power to inspect any premises where any drugs and cosmetics are being manufactured. Further he has power for getting tested such drugs and cosmetics in respect of which offence is suspected to have been committed in accordance with the provisions of this Act.
14. Section 23 provides the procedure which the Inspectors are required to adopt for getting the drugs and cosmetics tested and for the sake of convenience, the same is reproduced herein below:-
"23. Procedure of Inspectors.--(1) Where an Inspector takes any sample of a drug [or cosmetic] under this Chapter, he shall tender the fair price thereof and may require a written acknowledgement therefor.
(2) Where the price tendered under sub-section (1) is refused or where the Inspector seizes the stock of any drug [or cosmetic] under clause (c) of section 22, he shall tender a receipt therefor in the prescribed form.
(3) Where an Inspector takes a sample of a drug [or cosmetic] for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked:
Provided that where the sample is taken from premises whereon the drug [or cosmetic] is being manufactured, it shall be necessary to divide the sample into three portions only:
Provided further that where the drug [or cosmetic] is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug 1[or cosmetic] be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same and, where necessary, sealing them.
(4) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows:--
(i) one portion or container he shall forthwith send to the Government Analyst for test or analysis;
(ii) the second he shall produce to the Court before which proceedings, 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 particulars have been disclosed under section 18A.] (5) Where an Inspector takes any action under clause (c) of section 22,--
(a) he shall use all despatch in ascertaining whether or not the drug [or cosmetic] contravenes any of the provisions of section 18 and, if it is ascertained that the drug [or cosmetic] does not so contravene forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized;
(b) if he seizes the stock of the drug [or cosmetic], he shall as soon as may be, inform [a Judicial Magistrate] and take his orders as to the custody thereof;
(c) without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possessor of the drug [or cosmetic], he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order under the said clause.
[(6) Where an Inspector seizes any record, register, document or any other material object under clause (cc) of sub-section (1) of section 22, he shall, as soon as may be, inform [a Judicial Magistrate] and take his orders as to the custody thereof.]"
15. The above provision makes it clear that when an Inspector seizes stock of any drug or cosmetic under clause (c) of Section 22, he shall tender receipt for the same in prescribed form and when he takes sample of the drug or cosmetic for the purposes of analysis, he shall have to intimate such purpose in writing in prescribed form to the person from whom he takes the sample. He is supposed to divide the sample into four portions and seal the same effectively and permit such person to add his own seal and mark, to all or any of the portion so sealed. This provision is provided with a view to eliminate any doubt with respect to any mischief having been committed by any outsider or the Inspector concerned, who makes the raid. After having taken sample, the same has to be divided into three portions out of which one portion of the sample shall be given to the person from whom he has taken the sample and shall retain the remainder and shall dispose them of in the manner prescribed under Sub Section 4 of Section 23. The language of this section indicates that all precautions have been provided so that no mischief can take place.
16. Section 25 provides for Reports of Government Analysts and for the sake of convenience, the same is being reproduced herein below:-
"25. Reports of Government Analysts. --(1) The Government Analyst to whom a sample of any drug [or cosmetic] has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.
(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken [and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18A], and shall retain the third copy for use in any prosecution in respect of the sample.
(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken [or the person whose name, address and other particulars have been disclosed under section 18A] has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.
(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified 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 request either of the complainant or the accused: cause the sample of the drug [or cosmetic] produced before the Magistrate under sub-section (4) of section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
(5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct."
17. The above Section clearly lays down that after the test or analysis, the Government analyst shall tender a report to the Inspector signed by him in triplicate in the prescribed format and after the receipt of the same by the Inspector, one copy of the said report shall be delivered to the person from whom, the sample is taken and one copy of the same shall be retained for the purpose of prosecution in respect of the sample. After receipt of the copy of the report, the accused within 28 days of its receipt, has been provided right to adduce evidence in contravention of the said report as provided in above section otherwise the said report would be taken as conclusive proof against the accused.
18. Accused has also been provided right to get the said sample tested/analysed in Central Drugs Lab by moving the Magistrate and after such right is exercised and the said report from the Director, Central Drugs Lab, is received, such report shall be conclusive evidence of the facts stated therein, although, it is clarified that the cost of test would have to be borne by the complainant or the accused as the Court would direct.
19. The penalty for the offence committed under the Act is provided under Section 27 of the Act which are as follows:-
"27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.-whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,--
(a) any drug deemed to be adulterated under section 17A or spurious under section [17B and which] when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be [punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more:] [Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause:
Provided further that where the use of the adulterated or spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realised from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulterated or spurious drugs referred to in this clause.
Explanation.--For the purposes of the second proviso, the expression "relative" means--
(i) spouse of the deceased person; or
(ii) a minor legitimate son, and unmarried legitimate daughter and a widowed mother; or
(iii) parent of the minor victim; or
(iv) if wholly dependent on the earnings of the deceased person at the time of his death, a son or a daughter who has attained the age of eighteen years; or
(v) any person, if wholly or in part, dependent on the earnings of the deceased person at the time of his death,--
(a) the parent; or
(b) a minor brother or an unmarried sister; or
(c) a widowed daughter-in-law; or
(d) a widowed sister; or
(e) a minor child of a pre-deceased son; or
(f) a minor child of a pre-deceased daughter where no parent of the child is alive; or
(g) the paternal grandparent if no parent of the member is alive;]
(b) any drug--
(i) deemed to be adulterated under section 17A, but not being a drug referred to in clause (a), or
(ii) without a valid licence as required under clause (c) of section 18, shall be punishable with imprisonment for a term which shall [not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more:] Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than three years and of fine of less than one lakh rupees;]
(c) any drug deemed to be spurious under section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall [not less than seven years but which may extend to imprisonment for life and with fine which shall not be three lakh rupees or three times the value of the drugs confiscated, whichever is more:] Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than seven years but not less than three years and of fine of less than one lakh rupees];
(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years [and with fine which shall not be less than twenty thousand rupees]:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year. "
20. Therefore, a close scrutiny of the aforementioned Sections would show that the Act of 1940 clearly lays down a complete code for trial of an offence committed in respect of drugs or cosmetics. Since this is a Special Act enacted for trial of an offence committed under this Act, no other provision would be applicable as this Act has over-riding effect over all other Acts. In view of this being Special Act, the provisions of Cr.P.C. would not be applicable except as provided in the Act itself. Since the lodging of F.I.R. is provided under Section 154 Cr.P.C., the said provision would not be invocable in view of the provisions mentioned in this Act.
21. In this Act, the procedure for launching a prosecution has been clearly laid down saying that prosecution under this Act can be initiated only on a complaint made by an authorised Inspector or other authorised persons defined under Section 32, who is supposed to follow the entire procedure as narrated above. By no stretch of imagination could the concerned Inspector have lodged an F.I.R. in this case and authorise the police to make investigation in this case.
22. The said lodging of F.I.R. is absolutely barred and, hence, the F.I.R. deserves to be quashed. Not only this, notice is also required to be issued to the Inspector who had gone to lodge the F.I.R. despite there being a special provision provided for launching the prosecution.
23. We, accordingly, allow this petition and quash the F.I.R. and simultaneously it is further directed that notice shall be issued to the concerned Inspector by the Competent Authority to show cause as to why he deliberately lodged an F.I.R. when there is specific provision for prosecuting the accused by lodging a complaint. The explanation and action taken against him, shall be forwarded to the Court by the Competent Authority within 8 weeks from today through Registrar General of this Court who shall place the same before us for perusal in our chambers as soon as the same is received by Registrar General. We further grant liberty to the respondent no.4 to initiate criminal proceedings in accordance with the procedure laid down under this Act forthwith against the petitioner.
24. Registrar General to sent a certified copy of this order to Principal Secretary, Food Safety and Drug Administration, Government of U.P. for his necessary information and follow up action. It is further directed that Principal Secretary, Food Safety and Drug Administration, Government of U.P. shall notify such direction to all the D.Ms. of the State so that no such error recurs.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date :- 2.8.2018 /A. Mandhani