Allahabad High Court
Amit Kumar Verma vs State Of U.P. & Another on 21 January, 2010
A.F.R.
Court No. 50
CRIMINAL REVISION No. 4511 OF 2009.
Amit Kumar Verma Vs. State of U.P. and another.
Hon. Mrs. Poonam Srivastav, J.
Heard Sri Mukhtar Alam, learned counsel for the revisionist and learned A.G.A. for the State.
Counter and rejoinder affidavits have been exchanged which are on record.
The argument of learned counsel for the revisionist is that under the Drugs and Cosmetics Act, 1940, Inspectors are only empowered to inspect the premises which deals in manufacture and sale of drugs or cosmetic by a licence holder. This is not disputed. The procedure to be adopted by the Inspector is provided in Section 23 of the said Act. It is specifically and unequivocally submitted by learned counsel that there is no provision under the Act to enter into premises and effect seizure.
Section 22 of the Drug and Cosmetic Act, 1940 provides powers of Inspectors which is quoted below:-
"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 standardizing 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 manufacture or being sold or is stocked or exhibited or offered for sale, or is being 2 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 an 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 Section 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 3 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 the 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.
[(2-A) 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 produced 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 there from certified by that person, in such manner as may be prescribed, have been taken] (3) If any person willfully obstructs an Inspector in the exercise of the powers conferred upon him by or under this Chapter [for 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 extent to three years, or with fine, or with both]."
The legislature provides a complete procedure of inspection of the premises. For a ready perusal Section 23 of the aforesaid Act is quoted below:-
23. Procedure of Inspectors- (1) Where an Inspector takes any 4 sample of a drug [or cosmetic] under this Chapter, he shall tender the fair price thereof and may acquire a written acknowledgement therefore.
(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 therefore 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 willfully 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 manufacture, 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 [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 analysis;
(ii) the second he shall produce to the Court before 5 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 18-A] (5) Where an Inspector takes any action under clause (c) of Section 22,-
(a) he shall use all dispatch 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]."
Sub clause (6) as detailed herein above, empowers an Inspector only to seize record, register, document or any other material but not to seal the shop or business establishment and, therefore, the seizure effected in the instant case is without jurisdiction.
In the instant case, shop of the revisionist has been seized and locked while it was being inspected by raiding party. Shop of the revisionist is 6 closed since 25.8.2009.
On perusal of the entire record and after going through counter and rejoinder affidavits, it is evident that the shop in question from where the revisionist was carrying on business, was raided by a raiding party and a seal was put on 25.8.2009. Since the said date shop has not been opened and by means of the impugned order the prayer to open the shop has also been refused.
The submission of the learned counsel for the revisionist appears to be justified. The entire procedure of sealing the premises is on the face of it illegal, arbitrary and could not be allowed to continue. The refusal by the Chief Judicial Magistrate, Bijnor vide order dated 29.10.2009 is, therefore, quashed and the Chief Judicial Magistrate Bijnor is directed to ensure that the shop of the revisionist is opened forthwith and he is not interfered in conducting his business.
The Chief Judicial Magistrate shall pass an order within a period of ten days from the date a certified copy of this order is produced before him.
With the aforesaid observations, this revision is disposed of.
Dt/-21.1.2010.
Rmk.