Jammu & Kashmir High Court
Madan Lal Aggarwal vs Madan Lal Aggarwal on 18 March, 2013
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. 561-A No. 28 OF 2012 AND 561-A No. 74 OF 2012 AND Cr.MA No. D-159 OF 2012 Madan Lal Aggarwal Petitioners 1.State through Drug Inspector 2.State and ors Respondent !Mr. Sunil Sethi, Sr. Advocate with Ms. Veenu Gupta Advocate ^Mr. Gagan Basotra, Sr. AAG. Mr. B.S. Salathia, Sr. Advocate with Mr. Ashish Sharma, Advocate Honble Mr. Justice Hasnain Massodi, Judge Date: 18.03.2013 :J U D G M E N T :
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1. Petitioner figures as accused in complaint titled Drug Inspector Vs. Madan Lal Aggarwal under Section 18-A read with Sections 28, 18(a) (vi) read with Section 27(d), Drugs and Cosmetics Act, 1940. He is shown involved in case FIR No.06/2012 under Sections 420, 468 and 471 RPC, Police Station City, Jammu. He seeks quashment of order dated 22nd October, 2011 of Special Court (3rd Additional Sessions Judge), Jammu, whereby cognizance has been taken and process issued against him and the proceedings emanating there from, as also quashment of FIR No.06/2012 through medium of two petitions under Section 561-A Cr.PC registered as 28/2012 and 74/2012.
22. Before dilating on the grounds urged in the petitions on hand in support of the case set up, it would be appropriate to take an overview of the background facts.
3. Petitioner admittedly is running a Trust under name and style of Vishwa Swasthya Dham at Jammu, claimed to be engaged in providing free of cost diagnosis and treatment to patients through a diagnostic laboratory and the specialists engaged by the Trust.
4. On 27th July, 2011, a team of officers from Drugs and Food Control Organization headed by Shri Surinder Mohan Tickoo Assistant Controller of Drugs and comprising of Shri Rajesh Kumar Naib Tehsilder, Satwari and Vishal Sharma SHO, Police Station, City, Jammu inspected the office of Trust at Raghunath Bazar, Jammu to look into the activities of the Trust and found it to run a dental clinic and a clinical laboratory. Petitioner present on spot informed the team that no drugs/medicine (Ayurvedic, natural or herbal) were being stocked in the premises and that no stock of unconsumed drugs was available in the premises. The team on inspection concluded that the Trust had not maintained any inventory of drugs/medicines consumed/stored in the premises. S/s. Dr. P.D. Khajuria, Dr. K.D. Gupta and Dr. Shambu Nath were 3 shown engaged for carrying out activities of the Trust. The Team found drugs pertaining to clinical laboratory, i.e. HIV Rapid Test, Dispovan, Pyrocresol, HCG, HVSAG, Rapid Diagnostic Test, Pyrex Modeling wax and maksafe, falling within purview of Drugs and Cosmetics Act, 1940, stocked in the premises. Petitioner allegedly was not able to furnish purchase details of the drugs found in the premises, was served a notice/questionnaire and required to submit his reply within two days from the date of receipt of the notice/questionnaire. Petitioner submitted his reply and while providing information as regards Doctors/Specialists engaged for carrying out activities of the Trust, disclosed that patients suffering from Madhumeh (Diabetes), Sathulya (Fat) and Arsh (Piles) were treated by the Doctors engaged by the Trust and that the Trust manufactured medicines with dry powder of vegetables and herbs like Karela, Methi, Jaamun Seed, Mooli, Neem, Arjunchall, Kali Mirch and that medicines used were home based medicines.
5. The Drug Inspector, Zone-1, Jammu on going through the inspection report dated 27th July, 2011 and reply to the questionnaire furnished by the petitioner on 22nd October, 2011 filed a complaint against the petitioner in the 3rd Additional Sessions Judge Court, Jammu (designated as Special Court under SRO 171 4 of 2011 dated 02.06.2011), alleging commission of offences punishable under Section 18-A read with Sections 28, 18(a) (vi) read with Section 27(d), Drugs and Cosmetics Act, 1940. The Special Court on going through the complaint and annexures appended thereto, found the complaint to disclose commission of offences punishable under Section 18-A read with Sections 28, 18(a) (vi) read with Section 27(d), Drugs and Cosmetics Act, 1940 and, therefore, recorded satisfaction that there were sufficient grounds to proceed against the petitioner. The Court, accordingly, took cognizance and issued process against the petitioner.
6. On 29th January, 2012, SHO Police Station, City, Jammu received a communication from SDPO, Jammu-North, inviting attention to the communication received from Deputy Controller, Drugs and Food Control Organization and also news item captioned quack selling cure for chronic disease published in Kashmir Images a daily, published from Jammu and the advertisements made in a local TV channel in this regard. On perusal of the aforesaid information, SHO - Police Station, City, Jammu found that the petitioner was running a health facility without permission and through booklets and advertisements, cheating and defrauding the general public. The information received, 5 prompted SHO concerned to register case FIR No.06/2012 dated 29.01.2012 at Police Station, City, Jammu.
7. The complaint and criminal proceedings initiated against the petitioner by the Special Court are sought to be quashed in exercise of inherent powers under Section 561-A Cr.PC, primarily on the ground that the inspection report and the material collected, even if accepted, do not disclose commission of offences punishable under Section 18-A read with Sections 28, 18(a) (vi) read with Section 27(d), Drugs and Cosmetics Act, 1940 mentioned in the complaint and the trial Court order dated 22nd October, 2011. The petitioner insists that he as a trustee had no role in purchase and procurement of drugs and medicines for diagnosis and treatment of the patients and for maintenance of the record and in running day-to-day affairs of the Trust. It is pleaded that all such matters were looked after by medical and para-medical staff engaged by the Trust and the petitioner as a trustee was unnecessarily implicated for the lapses, if any, committed by the staff engaged by the petitioner. It is further pleaded that permission accorded by the Drugs and Food Control Organization for prosecution of the petitioner suffers from non application of mind and the complaint filed against the petitioner, is, 6 therefore not maintainable and cognizance thereof erroneously taken by the trial Court.
8. Petitioner seeks to invoke inherent powers of the Court under Section 561-A Cr.PC to get FIR No.06/2012, Police Station, City, Jammu under Sections 420, 468, 471 RPC, quashed on the grounds that proceedings under Drugs and Cosmetics Act, 1940 having been initiated through a complaint filed on 22nd October, 2011, parallel proceedings would not run on the same allegations in view of the spirit and mandate of Ss. 154 and 234 CrPC. The First Information Report is alleged to be actuated by malice and ill will nursed by Inspector General of Police, Zone Jammu respondent no.4 in the petition against the petitioner. It is alleged that respondent no.4 has an eye on a plot of land owned by petitioners wife and sister-in-law, measuring 25 Kanals comprising khasra No.658 Min., Khewat No.26 and Khata No.428 situated at Chowadhi, Tehsil and District, Jammu and that as the petitioner thwarted a number of attempts made by the respondent no.4 through his stooges to take over the property, respondent no.4 managed registration of a false and frivolous case against the petitioner. It is pleaded that as the petitioners wife and sister-in-law have filed a civil suit and contempt petition as the owners of the aforesaid plot in question in the Court of Civil Ist 7 Subordinate Judge (Municipal Magistrate), Jammu and an application for initiation of proceedings, the respondent no.4 out of annoyance has through his subordinates got aforesaid case registered against the petitioner. Petitioner insists that the material referred to in the First Information Report does not disclose commission of offences punishable under Sections 420, 468, 471 RPC and that the sole aim of the aforesaid case is to take revenge against the efforts made by the petitioners wife and sister-in-law to protect their proprietary rights in the aforesaid plot of land. The First Information Report according to the petitioner is liable to be quashed on the grounds set out in the petition.
9. The respondents 1 to 3 oppose the petition on the grounds that as the investigation in case FIR No.06/2012, Police Station, City, Jammu is yet to be concluded, inherent powers under Section 561-A Cr.PC, in view of the guidelines laid down in State of Haryana and ors. Vs. Ch. Bhajan Lal and ors. AIR 1992 Supreme Court 604 cannot be exercised to stifle investigation. The respondents 1 to 3 deny that the case registered against the petitioner amounts to, double jeopardy and that parallel proceedings cannot be initiated after complaint under Drugs and Cosmetics Act, 1940 has been filed against the petitioner. Reference is made to section 2 of the 8 Drugs and Cosmetics Act, 1940 whereunder pendency of the proceedings under the Act, is not to bar proceedings under any other law in force. It is averred that the investigation conducted by the investigating officer in the matter reveals that the petitioner with his sons Sahil Aggarwal and relation Kshitiz Aggarwal has executed Trust Deed and under the cover of an unregistered Trust, has set up Dental Clinic and Diagnostic Laboratory without permission from Competent Authority. Petitioner is alleged to have forged registration of dental clinic in the name of his employee namely, Shri Dr. Umesh Padha. The investigation conducted, according to respondents 1 to 3 points to commission of offence punishable under Sections 420, 468, 471 RPC, and 3/8, Nursing Home and Clinic Establishment Act. Petitioner is alleged to be fraudulently inducing the patients to believe that he can cure chronic diseases and found to have been, on the basis of false assurances, extracting money from the helpless patients.
10. Respondent no.4 Shri Dilbag Singh, Inspector General of Police, Jammu Zone, impleaded as party respondent no.4 by name, in his reply has denied all the allegations leveled against him in the petition. The respondent no.4 denying that case FIR No.06/2012 was a reaction to the efforts made by the 9 petitioners wife and sister-in-law to save the plot of land in question from respondent no.4, pleads that he is a non State-Subject and not eligible to acquire any proprietary rights in the State. The case set up by the petitioner, according to the respondent no.4, is an effort to avoid prosecution for the offences established against him.
11. I have gone through the pleadings as well as record available on the file and have heard learned counsel for the parties.
12. The complaint filed by the Drug Inspector, Jammu- Zone-1, as already stated, alleges that the petitioner though given an opportunity, failed to furnish address and other particulars of the person from whom he acquired the drugs used by the Trust and found in the premises of the Trust run by the petitioner and, therefore, committed offence defined under Section 18-A of the Act punishable under Section 28 of the Act. The petitioner is also alleged to have violated Rule 106 of the Drugs and Cosmetics Rules, 1945 inasmuch as petitioner claimed to cure diseases, i.e. Diabetes, Fat, Piles, specified in Schedule-J to the Rules and by doing so, committed offence punishable under Section 18(a) (vi) of the Act read with Section 27(d) of the Act. The expression Drug is defined under Section 3(b) of the Act as under; 3(b) (i) All medicines for internal or external use of human beings or animals and all 10 substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes.
(ii) Such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of [vermin] or insects which cause disease in human beings or animals, as may be specified from time to fime by the Central Government by notification in the Official Gazette.
(iii) All substances intended for use as components of a drug including empty gelatin capsules; and
(iv) Such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board.
13. Petitioner seeks quashment of the complaint and the order of learned Special Court dated 22nd October, 2011 on the grounds that the complaint taken on its face value does not disclose any commission of offence and that he being a trustee has nothing to do with day-to-day affairs, i.e. purchase of drugs, maintenance of records etc., of the Trust. The plea that the complaint does not allege commission of any offence is prima facie without merit. The drugs found stored in the health/diagnostic facilities run by the Trust, prima facie fall within definition of Drug as 11 defined under Section 3(b) of the Act and if the drugs are allegedly dispensed by the Trust or the employees of the Trust in violation of the Rules and the petitioner as alleged in the complaint failed to furnish information regarding the source of the drugs or the manufacturer/distributor from whom drugs were purchased. The complaint prima facie discloses commission of offence punishable under the provisions of the Act mentioned in the complaint.
14. Petitioners case that he as a trustee had nothing to do with the activities of the Trust is again prima facie belied by his own stand taken in the petition. It would be advantageous to extract, a few excerpts from the petition:-
2(a)..Marvelous achievements earned by the trust of the petitioner in curing hundreds and thousands of patients, became eye-sore for certain vested interests and person who in order to tarnish and ruin the well established reputation of not only the trust but of the petitioner also, succeeded in getting the petitioner and his trust involved in a totally false and vexatious proceedings which were got initiated from the respondent. (emphasis supplied) 2(c). That it is pertinent to mention that in the trust being run by the petitioner, the patients 12 suffering from Diabetes, Fat and piles were being treated by the qualified doctors engaged by the said trust. (emphasis supplied)
15. The petitioner, as would be prima facie evident from his petition and the complaint as also material appended to the complaint, is running the affairs of the Trust and cannot seek quashment of the complaint at its threshold in exercise of inherent powers on the ground that complaint on the face of it does not disclose commission of offences alleged therein, against the petitioner. The permission granted by Drugs and Food Control Organization to file the complaint does not on the face of it appear to suffer from vice of non application of mind, so as to vitiate the proceedings commenced on filing of the complaint.
16. The grounds urged in petition 74/2012 to seek quashment of FIR No.06/2012 under Sections 420, 468, 471 RPC do not stand legal scrutiny. The allegations that prompted Police Station, City, Jammu to register case FIR No.06/2012 against the petitioner are different from the allegations that led to filing of complaint by the Drug Inspector, Jammu Zone-1 against the petitioner. The allegations levelled against the petitioner in the First Information Report are that the petitioner with a dishonest and fraudulent intention is making the people believe that 13 his Trust can cure diabetes, fat and piles. It is alleged that petitioner is running a diagnostic laboratory and a dental clinic without permission of the Competent Authority, has allegedly forged such a permission to run the dental clinic and is projecting it to be a genuine permission. It is in the said background that a case under Sections 420, 468, and 471 RPC has been registered against the petitioner. The complaint under Section 18(a) (vi) and 18-A of Drugs and Cosmetics Act, 1940 on the other hand, has been filed as a team from Drugs and Food Control Organization headed by Shri Surinder Mohan Tickoo Assistant Controller of Drugs and comprising of Shri Rajesh Kumar Naib Tehsilder, Satwari and Vishal Sharma SHO, Police Station, City, Jammu on inspection of the premises of the trust run by the petitioner allegedly found drugs/diagnostic kits stored in the premises, and dispensed in violation of the rules as also failure of the petitioner to disclose the source, i.e. manufacturer etc. of the drugs/diagnostic kits. The petitioner, therefore, cannot allege that the proceedings/investigation initiated on complaint and in consequence of registration of case FIR No.06/2012 overlap and amount to parallel proceedings with their origin in the same occurrence.
17. The allegation that case FIR No.06/2012 is outcome of ill will and malice nursed by Inspector General of 14 Police, Jammu respondent no.4 in the petition, because of a property dispute does not sound convincing. The respondent no.4 is a senior officer of IPS Cadre and a non State Subject and therefore, on his own admission not entitled to acquire or own immoveable property in the State. The plea that as wife of petitioner and his sister-in-law have filed a civil suit against some Police Officers must not suggest that a senior Police Officer shall influence Incharge of a Police Station to register a case of cheating, fraud and forgery against the petitioner on false and baseless allegations. So viewed, no ground is made to quash the First Information Report and stifle and scuttle investigation.
18. The High Court under Section 561-A Cr.PC has wide power to make such order as it may find necessary to prevent abuse of process of any Court, to secure ends of justice or give effect to any order under the Code. The inherent power saved under Section 561-A of the Code because of its ambit, scope and plentitude is to be exercised rarely and sparingly and of course, with due circumspection. The Court in the name of exercise of inherent power cannot throttle a prosecution or stifle an investigation, unless petitioner is able to make out that the material before the trial Court or the information received by Incharge of a Police Station does not disclose an 15 offence against the petitioner or that the case falls within one of the guidelines laid down by the Apex Court from time to time including Bhajan Lals case (Supra).
19. The case set up to invoke inherent powers and seek quashment of criminal proceedings of FIR must not hinge on appreciation of evidence or involve analysis and sifting of the material before the trial Court or available to an Investigating Officer. Such a power rightly belongs to the trial Court or the Investigating Officer and the High Court in exercise of inherent powers cannot highjack the trial or investigation and step into the shoes of the trial Court or the Investigating Officer.
20. Supreme Court in Sathish Mehra Vs. State of N.C. T. of Delhi 2012 AIR SCW 6442 commenting upon nature and scope of inherent powers to the High Court, has observed;
15. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be prima facie do not disclose a triable offence there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra-ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test indicated above, namely, that even accepting all the allegations levelled by the 16 prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on the record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.
21. The Court, quoted with the approval, following observation made in Padal Venkata Rama Reddy alias Ramu V. Kovvuri Satyanarayana Reddy and others, reported as (2011) 12 SCC 437;
31When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in detail in Bhajan Lal. The powers possessed by the High court under Section 482 are very wide and at the same time the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.
22. The case projected by the present petitioner to seek quashment of proceedings emanating from the complaint and the case Fir No.06/2012, as is evident from above discussion does not satisfy the requirements of Section 561-A Cr.PC, the case law on the subject and the test laid down in Shatish Mehras 17 case (Supra). So viewed, the petitions on hand do not call for exercise of inherent powers under Section 561- A Cr.PC.
23. Viewed thus, both the petitions, i.e., 561-A Nos.28/2012 and 74/2012 are dismissed. (Hasnain Massodi) Judge Jammu 18.03.2013 Varun Bedi* This judgment is announced by me in terms of Section 138(3) of the Jammu and Kashmir High Court Rules, 1999. (Tashi Rabstan) Judge Jammu 18.03.2013