Om Prakash Sah vs State Of Bihar on 21 January, 2011

[Cites 9, Cited by 5]

Patna High Court - Orders

Om Prakash Sah vs State Of Bihar on 21 January, 2011

Both these applications were directed to be heard analogous. Counsel appearing in Cr. W.J.C. No. 719 of 1998 submits that the writ application has been filed for quashing of the First Information Report of Bhagalpur (Kotwali) P.S. Case No. 556 of 1998 on the ground that the FIR instituted by the Officer In-charge of Kotwali Police station under section 27 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the 'Act') is not maintainable in view of section 32 of the Act. Prayer of the petitioner was for a direction to the respondents not to proceed with the investigation and also for quashing of the FIR.

However, the investigation proceeded and cognizance was so taken in the case.

In that view of the matter, the relief for which the petitioner has filed the criminal writ application is frustrated and, consequently, the same has become infructuous. In view of the subsequent 2 development, the petitioner is not interested in pursuing this matter as it has become infructuous.

Considering the submissions made by the petitioner's counsel, Cr. W.J.C. No. 719 of 1998 is dismissed as infructuous.

Cr. Misc. No. 808 of 1998 was filed for quashing of the entire proceeding of G.R. No. 473 of 1993 (Bela P.S. Case No. 23 of 1993), pending in the court of Judicial Magistrate, Sitamarhi under section 27 of the Act and also for quashing of the order passed by the 1st Additional Sessions Judge, Sitamarhi in Cr. Revision No. 247 of 1995 / 97 of 1995, dismissing the said revision petition and refusing the prayer of the petitioner for discharge.

The ground which was taken by the petitioner for his discharge was that the offence is alleged to have been committed in relation to Ayurvedic medicine and not the drugs and, as such, the provisions under the Act are not applicable in the case and in that view of the matter, cognizance could not have been taken by the court in view of a bar provided under section 32 of the Act. Another ground taken by the petitioner was that the filing of the FIR, investigation, search and seizure done by the police are without jurisdiction. The prosecution could have been instituted by filing complaint by the Drug Inspector and the police having no jurisdiction to register the FIR and investigate into the offence under the Act, the entire criminal proceeding is illegal in terms of sections 22 and 32 of the Act.

Section 22 of the Act empowers the Drug Inspectors to make a search, seizure and institute a case against any person for 3 contravention of section 27 of the Act. Section 32 of the Act provides that no prosecution under Chapter - IV of the Act shall be instituted except by Inspector or by the person aggrieved or by a recognized association whether such person is a member of that association or not, and no court shall take cognizance of the offence unless it is instituted by authorized persons under section 32(1) of the Act. This issue has already been decided in the case of The Hindustan Lever Limited Vs. The State of Bihar & others reported in 1997(1) All P.L.R. 56.

In the case of the Hindustan Lever Limited (supra), it has been held that the police is not empowered to register any FIR for the offences under the Act and investigate the case so as to submit charge sheet under section 173 of the Code of Criminal Procedure. In view of the provisions of sub-section 3 of Section 22 and section 32 of the Act, the prosecution can be instituted by filing complaint by the Drug Inspector and the police has no jurisdiction to register an FIR. The investigation by the police is also without jurisdiction and liable to be quashed.

In the present case also, instead of filing a complaint case by the Drug Inspector or the authorized persons under section 22 of the Act, the case has been instituted by the Officer In-charge of the concerned police station on the basis of the written report of the Drug Inspector. On the basis of such FIR, the criminal proceeding could not have been initiated and the criminal court is also barred from taking cognizance as provided under section 32 of the Act. The issue involved in this matter is re integra in view of the report, referred to above and 4 also other such decisions.

On account of pendency of this criminal miscellaneous application for such a long time and there being no stay order continuing in respect of Bela P.S. Case no. 23 of 1993 (G.R. Case No. 473 of 1993), there is possibility that the proceedings of the case, by now, must have been concluded. However, the legal issue was raised and referred to this court, needed to be decided and, accordingly, it is held that the criminal proceeding initiated for contravention of section 27 of the Act on the basis of an FIR instituted by the Officer In-charge of any police station is legally not maintainable. No criminal proceeding could have been initiated for any offence relating to contravention of any of the provisions mentioned under Chapter IV of the Act unless it has been initiated by the persons authorized under section 22(1) of the Act. Under section 22 of the Act, the Drug Inspector, aggrieved person or a member of any association are authorized for filing a complaint case. Only on the basis of a legally instituted criminal proceeding, the Criminal court is authorized to take cognizance and for prosecution of the accused. If it is not done, the entire criminal proceeding is bad, illegal and without jurisdiction. Such proceedings are liable to be quashed.

This application is disposed of accordingly.

Anil/ (Mridula Mishra, J.) ( Dharnidhar Jha, J.)

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Patna High Court - Orders