Patna High Court
Bablu @ Rajesh Kumar vs The State Of Bihar And Ors on 24 July, 2020
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava, Aditya Kumar Trivedi, Birendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.887 of 2013
Arising Out of PS. Case No.-98 Year-2010 Thana- PATNA GRP CASE District- Patna
======================================================
Bablu @ Rajesh Kumar son of Tulsilal, Resident of B/14, Mohalla-Vijay
Nagar, SCH No.78, PS Vijay Nagar, Distt-Indore (MP).
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Superintendent of Police, Patna.
3. The officer-in-charge of Rajendra Nagar Police Station, Patna.
4. The officer-in-charge , Patna Junction Rail Police Station, Patna.
5. The Drug Controller, Bihar, Patna.
6. The Civil Surgeon-cum-Chief Medical Officer, Patna.
7. The Drug Inspector, Urban Area (Wholesale) Patna.
... ... Respondent/s
======================================================
with
Criminal Writ Jurisdiction Case No. 278 of 2015
Arising Out of PS. Case No.-444 Year-2014 Thana- GANDHIMAIDAN District- Patna
======================================================
1. Vijay Kumar Shahi son of Late Raghwendra Prasad Shahi Resident of
A-25, Phase 1, Ashiana Nagar PO-Ashiana, PS-Shastri Nagar, Distt-
Patna.
2. Sushil Kumar son of Late Mathura Prasad Singh, Resident of Village-
Ramdiri, PS-Begusarai Mufassil, District-Begusarai.
3. Ajay Shahi son of late Raghwendra Prasad, Resident of Village-Shahi
Minapur, PS-Aurai, Distt-Muzaffarpur.
4. Ranjan Shahi son of Late Ram Bihari Shahi, esident of Village-Shahi
Minapur, PS-Aurai, Distt-Muzaffarpur.
5. Rakesh Mishra son of Dr. R.P. Mishra, Resident of 403, Ranjan Plaza
Colony More, PS-Kankarbagh, District-Patna.
6. M/s Ravian Pharmaceuticals Limited through its Managing Director,
Rakesh Mishra son of Dr. R.P. Mishra, Resident of 403, Ranjan Plaza
Colony More, PS-Kankarbagh, District-Patna having its registered
office at Kabari Gali, Exhibition Road, PS-Gandhi Maidan, District-
Patna.
... ... Petitioner/s
Versus
The State Of Bihar Through The D.G.P., Bihar, Patna
... ... Respondent/s
======================================================
with
Criminal Writ Jurisdiction Case No. 899 of 2013
Arising Out of PS. Case No.-175 Year-2012 Thana- SHAHKUND District- Bhagalpur
======================================================
Patna High Court CR. WJC No.887 of 2013
2/173
Chotelal Singh son of Masudan Singh, Resident of Village-Balia, PS-
Shahkund, Distt-Bhagalpur.
... ... Petitioner/s
Versus
1. The State Of Bihar Through Director General Of Police, Patna, Bihar.
2. Director General of Police, Patna.
3. District Magistrate, Bhagalpur.
4. The Civil Surgeon-cum-Chief Medical officer, Bhagalpur
5. Senior Deputy Collector, Bhagalpur
6. The SHO, Shahkund, PS-District, Bhagalpur.
7. Sri Amod Kumar Prasad, Drug Inspector, Bhagalpur-04, Sadar Hospital,
Bhagalpur.
8. Superintendent of Police, law and order, Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
(In Criminal Writ Jurisdiction Case No. 887 of 2013)
For the Petitioner/s : Mr. Jitendra Kumar Singh, Sr. Advocate
Mr.Surendra Kishore Thakur, Advocate
Mr. Prabhat Ranjan, Amicus Curiae
For the Respondent/s : Mr.Vinay Kriti Singh, APP
(In Criminal Writ Jurisdiction Case No. 278 of 2015)
For the Petitioner/s : Mr.Harsh Singh, Adv.
For the Respondent/s : Mr.R.Roy GP 5
(In Criminal Writ Jurisdiction Case No. 899 of 2013)
For the Petitioner/s : Mr.Amiya Kunal, Adv
For the Respondent/s : Mr. Anjani Kumar, Sr. Advocate
Mr.Ajay Bihari Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
and
HONOURABLE MR. JUSTICE BIRENDRA KUMAR
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI)
24-07-2020 While hearing these petitions, one of us, (Justice
Trivedi) had found that majority of the judgments identifying
sole source of prosecution by way of filing complaint petition
that too by the Drug Inspector, under Drugs and Cosmetics Act
(for brevity 'Act') is based upon the principle decided by the
Patna High Court CR. WJC No.887 of 2013
3/173
Single Bench in Hindustan Lever Limited v. State of Bihar &
Ors reported in 1997(1) BLJ 899, which later on considered by
the Division Bench under Cr. Misc. No. 50246/2006 (Om
Prakash Singh v. State of Bihar (DB) as well as Shankar Kumar
Ghosh v. State of Bihar Cr.WJC No. 719/1998 with Cr. Misc.
No. 808 of 1998, Om Prakash Sah v. State of Bihar and
approved. Also there happens to be reference of order dated
01.10.2003 passed in CrWJC No. 472/2013, order dated
18.07.2013 passed in CrWJC 120/2010, order dated 12.04.2013
passed in CrWJC No.110/2013, but during course of
consideration, the relevant provisions of law as enumerated
under the Act along with the contrary view so decided prior to
Hindustan Lever Limited (Supra) in Raghunath Bhagat &
Anr. v. State of Bihar & Anr reported in 1991 CrLJ 2054, the
subsequent consideration of Hindustan Lever Limited (Supra)
in the case of Om Prakash Agrawal v. S. Kullu, Addl. Dy.
Commissioner, Singhbhum, Chaibasa & Ors. reported in
(1993) 3 BLJR 2148 has not been considered. Furthermore, the
subsequent finding so recorded by the Apex Court in Assistant
Electric Engineer v. Satyendra Rai reported in 2012 (1) PLJR
476, Vishal Agrawal & Anr. v. Chhattisgarh State Electricity
Board & Ors reported in AIR 2014 SC 1539 have also been
Patna High Court CR. WJC No.887 of 2013
4/173
taken into consideration whereupon, opined that the veiw needs
reconsideration. Consequent thereupon, vide order dated
27.06.2014, the matter has been referred to Division Bench and
accordingly, directed to be listed after taking permission from
Hon'ble the Chief Justice.
2. In terms thereof, the matter came up before
the Division Bench and after elaborate consideration, vide order
dated 12.08.2015 the Division Bench directed the matter to be
listed before the Larger Bench whereupon, the matter is before
us.
3. The Division Bench while referring the matter
has formulated the following points:-
(a) Is not it that in absence
of any prescription as regards taking
cognizance of an offence under Chapter
IV of the Act, it could be only the Court
of Magistrate who has to act under
Section 190 CrPC?
(b) Is not it that Section 32
of the Act is attracted only in respect of
offences which are defined and made
punishable by Chapter IV of the Act and
other provisions, like Section 13, 33-I
and 33-J of the Act are not covered by
Section 32 of the Act and in cases of
those Sections which are falling under
Chapter III and IV-A cognizance and trial
has to be undertaken by Courts other than
the court of Sessions as per provisions
contained under Chapters III and IV-A of
the Act and if that is so and in absence of
any special provision barring the
Patna High Court CR. WJC No.887 of 2013
5/173
investigation of offences which are
declared cognizable by Section 36 AC is
not the police competent to register the
offence under Section 154 CrPC and to
investigate the same and lay down the
charge-sheet before the courts of
Magistrate for taking cognizance?
(c) Whether the
judgments/orders of the Court in CrWJC
No. 719/1998 and Cr.Misc. No. 808/1998
and also Cr.Misc. No. 50246/2006
require consideration?
(d) Should not the police
register a case and investigate the same
even in respect of offences under Chapter
IV of the Act as appears held by
implication by the Supreme Court in
Vishal Agrawal & Anr (Supra), of course
in context to an enactment other than the
Act?
4. In order to properly appreciate the
submissions having been made on behalf of respective learned
counsels along with learned Addl. Advocate General, learned
Amicus Curiae in consonance with the points so formulated,
first of all the facts of the each case is to be considered:
(a) CrWJC No. 887/2013 has been filed on
behalf of petitioner, Bablu @ Rajesh Kumar for quashing of the
FIR of G.R.P(Patna Junction) PS Case No. 98/2010 registered
under Section 467, 468 of the IPC and 27 (D) (B) (ii), 28 of
Drugs and Cosmetics Act wherein he has been arrayed as an
accused. The plea happens to be that police case is not at all
Patna High Court CR. WJC No.887 of 2013
6/173
maintainable in accordance with Section 32 of the Drugs and
Cosmetics Act.
(b) Petitioners of CrWJC No. 278/2015 have
asked for quashing of FIR of Gandhi Maindan PS Case No.
444/2014 registered at the instance of Ms. Susma, Drug
Inspector, Patna challenging the procedure whereunder Police
case is not at all maintainable.
(c) In likewise manner, CrWJC No. 899/2013
has been filed on behalf of petitioner, Chotelal Singh for
quashing of the FIR followed with subsequent investigation
relating to Shahkund PS Case No. 175/2012 registered under
Section 420 IPC and 18©, 27(B) (ii) of the Act on the same
ground i.e., police case is not at all maintainable in accordance
with Section 22 (3) as well as 32 of the Act.
5. Virtually, Sri Jitendra Singh, learned Senior
Counsel took the lead though considering the niceties of the
Act, the Bench also allowed/invited learned senior counsels to
enlighten the issue. Learned Senior Counsel, Sri Jitendra Singh
has submitted that there was no occasion for reference by a
single judge as the principle so laid down by the Single Bench
in relation to the Hindustan Lever Limited case (supra) has
been approved by the Division Bench. So, there was no
Patna High Court CR. WJC No.887 of 2013
7/173
opportunity left for referring the matter to Division Bench by
the Single Judge as the Single Judge was under obligation to
follow the ratio decided by the Division Bench. That being so,
reference by the Single Judge was contrary to the precedent
whereupon, would not have been entertained. In likewise
manner, it has also been submitted that while referring the
matter to the Larger Bench by the Division Bench after
discussing the finding so under para-4, 5, 6, 7, 8 vide order
dated 12.08.2015 (order of reference) was not at all warranted
because of the fact that the Division Bench missed the crux of
the statute which if, perceived, would not have allowed the
situation to embroil.
6. Now coming to the issue in hand, first of all,
attention has been drawn towards the amendment made in the
statute by way of Drugs and Cosmetics Act, 2005 effected in
the year 2008 and further, referring the same, it has been
submitted that intention of the legislature requiring the
aforesaid amendment is to be considered so much so, that the
aforesaid amendment before even approved having a provision
for presence of the police been negatived while allowing
accordingly the remaining amendments. The proposed
amendment of 2005, attracting presence of police, and its
Patna High Court CR. WJC No.887 of 2013
8/173
rejection by the Legislature, manifestly suggests that neither
before introduction of such amendment there was presence of
police at any stage nor after amendment, the police has been
allowed to come over screen. In other words, as police action
has completely been mantled, hence, police care could not be
held to be permissible. In the aforesaid background, no one
could conceive the contrary theory nor it could be justifiable.
Putting stress, it has been submitted that had there been
presence of police before amendment of 2008 (by Act, 2005),
the proposed amendment would not have brought presence of
police, and rejecting thereof, completely blurred the intendment
of police, anyway, including by way of police case.
7. It has also been submitted that niceties of the
relevant provisions of the Act has properly been considered,
discussed and explained in the case of M/s Torque
Pharmaceuticals Pvt. Ltd & Anr v. The State Bihar through
Deptt. Of Health as reported in 2015 (3) PLJR 660 which
ought to have been considered by the Division Bench as well as
by the Single Bench. It has also been submitted that from
perusal of the Act, it is evident that it happens to be a full-
fledged, self contained statute having all the necessary
provisions, completely immuned from any kind of anomaly that
Patna High Court CR. WJC No.887 of 2013
9/173
of Section 32 itself, on account thereof, there happens to be no
occasion of any kind of confusion. Proceeding ahead, it has
been submitted that Section 4 (1) of the CrPC takes care of the
offences punishable under Indian Penal Code while sub-section
(2) acknowledges the procedure, if any, so prescribed for
inception of trial of the offences punishable under Special Act,
under said Special Act. Because of the fact that the Act
specially provides for filing of a complaint case by a Drug
Inspector or, the official so empowered by the Central
Government or by the State Government or by the Consumer
Association or by an individual (consumer) under Section 32 of
the Act, on account thereof, the other kind of procedure so
prescribed under Section 154 of the CrPC, that means to say,
recording of FIR is non permissible.
8. In order to buttress such plea, it has also been
submitted that when relevant provisions of the Act is taken
together with the schedule so prescribed under the CrPC (2 nd
Schedule) relating to Special Act, it is apparent that the
identification of offence as cognizable in terms of CrPC has not
been followed under the Act. Furthermore, the proper
identification of nature of offence, sentence to be inflicted
under the Act are quite inconsistent to the CrPC and that being
Patna High Court CR. WJC No.887 of 2013
10/173
so, if over-all situation is perceived, it became crystal clear that
applicability of CrPC in its entirety is not at all allowed save
and except, wherever so permitted.
9. It has then been submitted that law of
interpretation of statute permits and prescribes interference by
the Court only if there happens to be ambiguity in the
prevailing statute. When there happens to be no ambiguity then,
in that circumstance, the court is not at all warranted to extend
its tendrils in order to give an interpretation otherwise than
what the legislature intended, frustrating the aim and object of
the statute. That being so, the Court is forbidden,
simultaneously, should restrain itself from judicial activism by
propagating law interpreting contrary to the intention of the
legislature eclipsing the true spirit of law. The Court has to
consider the purpose for introducing the law. The Court is not at
all competent enough to test the wisdom of legislature.
10. The whole controversy as has been urged
has arisen on account of an illusion of the court doubting over
propriety of Section 32 quilletting in wrong direction as not
only Section 32 itself, rather if read together with Section 36 of
the Act, clarify the situation. Putting stress over launching of
"prosecution" as visualizing, is to be considered in an
Patna High Court CR. WJC No.887 of 2013
11/173
appropriate context. And to justify the same, it has been
submitted that in order to properly appreciate the activity by
way of launching of prosecution, one has to properly appreciate
the word "prosecution". emphasizing the word "prosecution",
it has been submitted that neither is defined under the Criminal
Procedure Code nor under Drugs and Cosmetics Act, hence it
should be seen through its literal meaning (by way of referring
dictionary meaning) along with judicial interpretation, and
further, submitted that it does not denote by way of police case.
11. Really, there happens to be non entity of
police under the Act, could be properly conceived, if the
relevant provisions are purposely considered and for that, it has
been submitted that appointment of Drug Inspector is laid down
under the Rules which has got a bearing as, only after having
such qualification a person would be capable in examining,
identifying, scrutinizing the validity, reliability, genuineness of
the documents including appropriate scientific knowledge to
identify the medicine being spurious, mis-branded, adulterated
etc. The police officials having no such qualification will be
completely incapable to handle the situation so much so to trace
out at least the drug being spurious or mis-branded or
adulterated and in likewise manner to detect the irregularities,
Patna High Court CR. WJC No.887 of 2013
12/173
illegality having been committed while running the business.
12. Furthermore, when Section 22 of the Act is
minutely gone through, it is evident that all the powers
virtually, to be exercised by the police officer during course of
investigation in accordance with CrPC has been vested to the
Drug Inspector. Once, such exercise has been taken up and
completed followed with a conclusion at the end of the Drug
Inspector against the delinquent by way of launching of
prosecution certainly, would not allow other kind of prosecution
than by way of complaint, otherwise, it will frustrate the whole
scheme of law.
13. Justifying such interpretation, it has been
submitted that the situation be seen through another angle. As
per Section 22(1) of the Act, it is the inspector who could
inspect the premises, could issue search and seizure and issue
prohibition order effective for twenty one days, could direct the
person to produce all the relevant documents/registers under
Sub-Section 2A, could return all the seized documents/registers
within stipulated period of twenty one days, furthermore, Sub-
Section (3) permits prosecution of the persons putting hurdle
during exercise of aforesaid power. In likewise manner, it has
also been submitted that only the Drug Inspector is authorized
Patna High Court CR. WJC No.887 of 2013
13/173
to inform the Magistrate under Section 23(6) of the Act with
regard to the steps having been taken at his end under Section
22(3) of the Act.
14. In likewise manner, it has also been
submitted that as per Section 23 of the Act, it is only the Drug
Inspector who is authorized to take sample, it is the Drug
Inspector who has been authorized to send the sample to public
analyst for examination, it is the Drug Inspector who, while
discharging his duty has to furnish a copy of the public analyst
report upon the concerned, it is the Drug Inspector who could
launch prosecution. That means to say, no where either under
Section 22 or 23 of the Act, presence of police has been
perceived. Had there been, then in that event, the presence of
police would have at proper stage, including drawing of
prosecution at their end. Absence, as argued is not
inadvertently, rather knowingly, purposely, on account of
incompetency of police to handle due to deficiency relating to
qualification as well as experience.
15. It has further been submitted that as the Act
duly recognizes the Drug Inspector to be the only competent
authority while discharging the function in accordance of law,
ignoring the identity, status of police at every stage, therefore,
Patna High Court CR. WJC No.887 of 2013
14/173
as vested, accepted, authorized, to launch prosecution, is the
Drug Inspector, and if there happens to be harmonious reading
of Section 23(5) (c) along with Section 32 of the Act by way of
filing of complaint. In likewise manner, the Drug Inspector is
left Section 23(5)(c), to launch a prosecution directly before
the court, not through police case. In like wise manner,
referring to Section 22 & 23 of the Act, it has been submitted
that having parallel scrutiny thereof, it is abundantly clear that
the Drug Inspector is the only competent authority, who has
been vested with the power of looking after the executive
function, one has to see the validity of license whether the
establishment is running in terms of law. Side by side, also to
take sample of the drugs in order to trace out the genuineness of
the drug, and if needed, to launch prosecution.
16. In its continuity, it has been submitted that
though the Act is found commanded by different subheads,
dealing with different activities relating to different situations
but one thing is common, that is presence of Drug Inspector,
followed with power so prescribed under Section 22, 23 of the
Act. That being so, presence of Drug Inspector, status of Drug
Inspector, powers and function of Drug Inspector is found kept
immuned by the Legislature. So, the submission is that neither
Patna High Court CR. WJC No.887 of 2013
15/173
there happens to be infirmity nor ambiguity in the statute on
that very score, whereupon, the term launching of prosecution
as prescribed under Section 32 of the Act will be apart from
others, the Drug Inspector, that too, through only one mode of
prosecution, i.e., by way of complaint.
17. Putting gyve nuance of the CrPC, it has been
submitted that for proper appreciation of the same, Section 36
of the Act, has to be properly taken into consideration, much
less, on account of presence of non obstante clause, which
suggests not withstanding, that means to say, irrespective of
presence of, that means to say, having over-riding effect. Save
and except, 36AD, 36AE all the remaining Sections 36A,
36AB, indicate overriding effect and in the aforesaid
background, the proper identification of nature of offence,
independent procedure is found duly prescribed coupled with
period of sentence.
18. Then, it has been urged that even under
Chapter No. IV A, Section 33 A deals with independent mode
of procedure by way of identifying the officials connected to
launch of prosecution as against under Section 32 of the Act.
That means to say, under Section 33A Inspector only has been
identified to be the competent authority, that too after having
Patna High Court CR. WJC No.887 of 2013
16/173
sanction from the authority, so identified under Section 33 of
the Act. That means to say, manner whereunder mode of
prosecution has been prescribed under Section 33M of the Act
did not favour in lieu of police case, muchless, after taking into
note of Section 33(d) coupled with Section 33 I of the Act.
Hence, the analytical study of all the relevant provisions, speak
about single mode of prosecution, i.e. by filing complaint.
19. Further elaborating the magnitude of issue, it
has also been submitted that the word so used in the Section 32
is the "prosecution". This word "prosecution" does not connote
that it should be always/invariably by way of launching of
police case. The prosecution, as submitted, is a process taken
against an accused by an aggrieved/victim or any person so
authorised under law. Furthermore, referring the legal concept
of prosecution as per Advance Law Lexicon by "Ramanath
Aiyar", the learned senior counsel has submitted that it should
be institution and carrying of a legal proceeding against an
accused. It happens to be a comprehensive one and can be used
in different aspect and so far its perspective as per Hulsbery
Law is concerned, it has been defined as " in the absence of
statute provisions to the contrary any person may of his own
initiative and without any preliminary consent institute criminal
Patna High Court CR. WJC No.887 of 2013
17/173
proceeding with a view to an indictment".
20. It has further been submitted that it also
connotes every prosecution for an offence whether it is initiated
on a private complaint or a police case. Also submitted that in
terms of Article 20(2) of the Constitution, it means, judicial
proceeding before a court or a legal tribunal. That being so,
there is no ambiguity on that very score and if the same is read
together with Section 22 of the Act, it is apparent that it only
permits the prosecution by way of institution of a complaint
case. In its continuity, learned senior counsel has also submitted
that in accordance with Rule 53, it is incumbent upon the Drug
Inspector not to divulge or disclose information to any body
what to talk about the police then, in that circumstance,
institution of a police case would tantamount to disclosing of
the facts in contravention of the Rule 53 which would be
contrary to the spirit of law and that being so, the prosecution to
be under the guise of police case would be nothing but an abuse
which could not be allowed/recognized in the eye of law. Also
referred the following citations:-
1. 1977 (4) SCC 608, 2. AIR 1952 SC 362, 3.
(2007) 6 SCC 276, 4. (2008) 3 SCC 674, 5. (2014) 3 SCC 696,
6. 2015 (3) PLJR 660, 7. AIR 1981 SC 379, 8. AIR 1991 SC
Patna High Court CR. WJC No.887 of 2013
18/173
1260, 9. (2000) 4 SCC 459, 10. (2010) 6 SCC 113, 11. (2013) 1
SCC 314, 12. (2017) 5 SCC 163, 13. (2009) 8 SCC 431, 14.
(2014) 8 SCC 319, 15. AIR 1961 SC 387, 16. (2004) 3 SCC 1,
17. AIR 1957 SC 444, 18. (1986) 4 SCC 326, 19. (2009) 4 SCC
94, 20. (2004) 4 SCC 766, 21. (2005) 8 SCC 219, 22. (2014) 5
SCC 189, 23. AIR 1974 SC 1660, 24. (2003) 7 SCC 197, 25.
(2003) 3 SCC 57, 26. (1996) 6 SCC 44, 27. (2003) 11 SCC 584,
28. AIR 1965 SC 1636, 29. (1991) 4 SCC 139, 30. (2012) 6
SCC 228, 31. AIR 1979 SC 1981, 32. (2002) 7 SCC 273, 33.
(1978) 2 SCC 213, 34. (1991) 2 SCC 87, 35. (2006) 13 SCC
252, 36. AIR 1959 SC 375, 37. AIR 1962 SC 486, 38. (1999) 4
SCC 697, 39. AIR 1994 SC 1775, 40. (2000) 2 SCC 504, 41.
(2001) 8 SCC 289, 42. AIR 1978 SC 851, 43. (2018) 5 SCC
557, 44. (2000) 4 SCC 406, 45. 2000(2P PLJR 25 SC, 46. AIR
2012 SC 1485.
21. Learned Amicus Curiae Sri Prabhat
Ranjan has submitted that there happens to be no question of
infringement of another mode of prosecution by permitting and
identifying only one mode that means to say only by way of
filing complaint, nor it is so prescribed under the Act nay an
intention of the legislature. In order to buttress such plea, the
learned Amicus Curiae submitted that under CrPC or any other
Patna High Court CR. WJC No.887 of 2013
19/173
law wherefrom only complaint petition is identifiable to be the
only mode of prosecution, there happens to be specific
disclosure to the effect that prosecution would be permissible
only by way of filing of compliant otherwise both mode of
prosecution is permissible. For example, the learned Amicus
Curiae has referred different provisions of respective laws such
as NI Act, Food and Adulteration Act, etc. Had there been
intention of the legislature then, in that circumstance, there
would have been specific averment in Section 32 of the Act
that the prosecution by way of complaint is only permissible.
Furthermore, it has also been submitted that though in 2005
proposed amendment there was a provision (it is also proposed
to confer powers upon police officers not below the rank of
Sub-Inspectors and other Officers of the Central Government or
State Government authorized by it to institute the prosecution
under the aforesaid Act) and having not been passed by the
legislature, is not at all could be considered avowal against the
plea raised on behalf of petitioner because of the fact that the
offences have been categorized non-cognizable, cognizable
irrespective of nature of sentence so prescribed. That means to
say, the proper categorization, classification of the offences so
made is found as per definition so laid down under CrPC, that
Patna High Court CR. WJC No.887 of 2013
20/173
means to say, whenever offence is branded as cognizable
offence, no sooner than, there happens to be unbriddles sphere,
whereupon, police in terms of Section 154 CrPC is obliged to
register a case. As per Section 41 of the CrPC, arrest also
becomes imminent without warrant, subject to limitation so
prescribed guiding the issue where sentence is up-to seven
years. However, in terms of Section 155 of the CrPC, the police
has to take permission from the Magistrate to investigate a case
falling under non-cognizable category but, so far registration of
case is concerned, there happens to be no barrier. In an
alternative, it has been submitted that the prosecution has been
permitted not only at the behest of inspector rather at the
instance of Central as well as State Government through its
official so authorized apart from Association, customer. It is
needless to say, the police officials irrespective of their rank
above, ASP, DySP, are Gazetted, may be an employee of the
Central as well as State Government as the case may be as per
cadre, whereupon, could it be said that their presence has
completely been erased. Furthermore, this issue could also be
seen through parallel scrutiny of Section 32 as well as Section
33M, in consonance with Section 33I, 33J whereunder
classification of sentence has been prescribed and submitted
Patna High Court CR. WJC No.887 of 2013
21/173
that intention of legislature is quiet clear. Whenever, it happens
to be an offence falling under Chapter-II, III, IV, police case is
permissible while for IV-A, the same is not.
22. It has further been submitted that let the
issue be seen through different angle. Whenever an individual
or an association is aggrieved by or intends to launch a
prosecution, there happens to be no provision under the Act
compelling them to approach the Drug Inspector and ask for
drawing of prosecution rather may take proper initiative duly
recognized under the law without identifying proper mode, that
is, even by approaching inspector, the prosecution has been
permitted through complaint only.
23. Then it has been submitted that in likewise
manner, whenever the prosecution is to be instituted at the end
of an employee of Central Government or State Government,
their identification happens to be distinct from the identification
of the Drug Inspector and further, there happens to be no
embargo over the activity streamlining the same through the
Drug Inspector. It has also been submitted that as per Rule 53,
there happens to be an obligation upon the Drug Inspector not
to divulge any facts before an individual. Police is not an
individual rather it happens to be an establishment constituted
Patna High Court CR. WJC No.887 of 2013
22/173
in accordance with law having different cadre and its function
is governed by the law. Therefore, divulgence of an information
to the police could not be considered to be divulgence before an
individual. Therefore, there would not be violation of Rule 53,
in case, the police case is instituted even at the end of Drug
Inspector.
24. Now coming to non obstenate clause, it has
been submitted that after going through the relevant provisions
of the Act in consonance with the CrPC, it is evident that there
happens to be no clash. Admittedly, Section 4(2) of the CrPC
paves the way acknowledging sailing of the proceeding having
instituted as per special law but in case, Special Act does not
contain the special procedure, then in that circumstance, it is the
Code which will govern the horizon. In case, Drugs and
Cosmetics Act, is properly, minutely, carefully gone through, it
is evident that there happens to be no over-lapping save and
except proper identification of the courts by which the offences
so categorized are to be dealt with. It has also been submitted
that it could not be considered to be in derogation of CrPC
because of the fact that in series of the offence punishable under
IPC, triable by any Magistrate prescribing sentence beyond the
jurisdiction of the Magistrate did not cast any kind of
Patna High Court CR. WJC No.887 of 2013
23/173
infringement in trial rather there happens to be specific
provision such as Section 322 as well as 325 CrPC, apart from
Section 323 CrPC wherein Magistrate is authorized to refer the
matter to CJM for purpose of trial, infliction of proper sentence,
committal of a case. In likewise manner, it has also been
submitted that presence of Special Court (that of Sessions
Judge) did not automatically allow proceeding to be taken up
by the learned Sessions Judge like SC/ST (POA) Act, NDPS
Act rather the same has to be by way of commitment as the
Sessions Judge has got no inherent power save and except
under Section 193 of the CrPC to take cognizance that too on
committal in accordance with Section 209 CrPC.
25. Furthermore, supporting the submissions
having at the end of learned counsel for the petitioners, it has
been submitted that courts are not expected to deflect from
whatever been incorporated in the statute nor would lay down a
different legislature. What is permissible, is the interpretation
that too, when there happens to be ambiguity in the statute.
Because of the fact that there happens to be no ambiguity on
account thereof, attracts no interference. In order to buttress the
submission, the learned Amicus Curiae has referred the
following citations:-
Patna High Court CR. WJC No.887 of 2013
24/173
1. (1991) 2 SCC 87, 2. (1978) 2 SCC 213 (CB),
3. (2002) 7 SCC 273, 4. Caries Statute Laws, 7th Edition page
109, 5. Bennion Law of Statutory Interpretation 7 th Edition
Page 1978, 6. (2004) 4 SCC 766, 7. (2000) 2 SCC 504, 8.
(1984) 2 SCC 500, 9. (1984) 3 SCC 440, 10. (2010) 6 SCC 228,
11. (2013) 13 SCC 252, 12. (2018) 5 SCC 557, 13. (2014) 9
SCC 772.
26. Counter meeting with the submissions, the
learned Addl. Advocate General has argued that neither there
happens to be ambiguity nor confusion relating to the issue in
hand. The equivocal situation arose on account of conservative
interpretation by the Single Judge in Hindustan Lever Limited
case (supra) which has been treated as backbone for the
subsequent judgments. It has also been submitted that true it is
that at an earlier occasion the matter has come up before the
division Bench twice in Cr. Misc. No. 50246/2006 (Om Prakash
Singh v. State of Bihar (DB) as well as Shankar Kumar Ghosh
v. State of Bihar Cr.WJC No. 719/1998 with Cr. Misc. No. 808
of 1998 ( Om Prakash Sah v. State of Bihar) but, at both the
occasions, the court failed to identify the spirit of law. Further,
elaborating his submissions the learned AAG has submitted that
prescribing proper qualification for the post is different matter
Patna High Court CR. WJC No.887 of 2013
25/173
than the person to be competent enough to launch a prosecution
and in likewise manner, the mode of prosecution. At this
juncture, learned AAG drew attention towards Section 195
CrPC whereunder different authorities have been identified for
institution of the case and that too, in what manner, Section 198
of the CrPC relating to marriage, by whom and in what manner
the prosecution is to be launched and further, the different
Special Laws whereunder only complaint petition is the
permissive mode of prosecution. Because of the fact that no
such mode has been prescribed under the Drugs & Cosmetics
Act, on account thereof, it would not be reasonable to interpret
that only complaint petition is the source of prosecution
irrespective of character of offence so classified even as
cognizable. It has been submitted that after Hindustan Lever
Case, the Act faced radical change by an amendment, in all
aspect and so, whatsoever been held in Hindustan Lever could
not be perceived proper one, more particularly, when there was
no classification of offence being cognizable one, no
prescription of court as Special Court were available. So the
wish of the legislature while making the Act, more stringent has
also to keep while interpreting the same.
27. Apart from this, it has also been submitted
Patna High Court CR. WJC No.887 of 2013
26/173
that though the court has been identified to try the offence in
consonance with its label but the trial is to be governed in
accordance with CrPC. Furthermore, it has also been submitted
that points so raised at the end of learned counsel for the
petitioners could not be accepted in the background of the fact
that there happens to be no description under the Act allowing
conduction of the trial as complaint case. From Section 36A,
AB, it is evident that court has been identified for trial and as
per section 36AD, CrPC has been properly acknowledged in
order to govern the trial whereupon, it could safely be said that
having absence of any barrier over application of CrPC, there
happens to be no occasion to say that only complaint will be the
legal mode of prosecution, as CrPC, more particularly, Section
190 prescribes three mode of taking cognizance, on complaint,
on police report, or on its own.
28. Then, it has also been argued that learned
counsel for the petitioners is justified in his submission that
courts should refrain to legislate the law nor could wreathe,
unless there happens to be ambiguity or confusion, that too, by
way of interpretation to remove anomaly. Law is quite clear.
Section 32 identifies the persons capable to draw the
prosecution but, the mode of prosecution is not at all
Patna High Court CR. WJC No.887 of 2013
27/173
prescribed. That means to say, the legislature has intentionally
left the same in the background of nature of the offence having
so categorized in consonance with constitution of, the
respective courts by which offences are to be tried that too, in
accordance of procedure so proscribed under the CrPC.
29. It has also been submitted that qualification
of Drug Inspector has got nothing to do with the launching of
prosecution because of the fact that it is not the Drug Inspector
who has been found competent enough to test the medicine and
could say it spurious, mis-branded, adulterated rather it has to
be carried out by the respective laboratories and so, the
submission having at the end of learned counsel for the
petitioner that because of certain qualification required for
appointment of Drug Inspector, he could be only competent
person to identify the drugs to be spurious, mis-branded,
adulterated is just a misnomer. Furthermore, there happens to
be no provision under the Act channelizing the prosecution
through the Drug Inspector in case it is taken up at the behest of
individual/cusumer/association, official so delegated by the
Central Government or the State Government.
30. Then it has been submitted that heading of
the statute, sometimes, may command intention of the
Patna High Court CR. WJC No.887 of 2013
28/173
legislature but usually not. Learned counsel for the petitioners
is justified in his submission that under particular heading
particular mode of activity has been recognized and the
violation thereof, has been prescribed to be punishable but,
prosecution has to be in accordance with Section 32 of the Act
with regard thereto, save and except specially excluded so far
Ayurvedic, Unani medicines are concerned, having differently
dealt with under Chapter-IV-A of the Act. It has also been
submitted that the term 'prosecution' does not attract narrow
interpretation nor it could be construed conservatively rather,
once there happens to be no proper demarcation on this score,
then in that event, the court on its own would interpret, but not
inconsistent, distract of the legislative intent and consequent
thereupon, the earlier decisions including that of two Division
Bench decisions did not lay correct principle of law, hence are
subject to reassessment. The learned AAG referred the
following citations in order to justify his submissions which are
as :-
1. AIR 2014 SC 1539, 2. 2012 (1) PLJR 476 SC,
3. (2007) 6 SCC 276, 4. (2017) 5 SCC 163, 5. (2006) 13 SCC
252, 6. (2001) 8 SCC 289, 7. 1991 CrLJ 2054, 8. 1998 (3)
BLJR 2148, 9. 2005(3) PLJR 662, 10. 2010(2) PLJR 174, 11.
Patna High Court CR. WJC No.887 of 2013
29/173
Transplantation of Human Organ and Tissues Act, 1994., 12.
1997 (1) BLJR 899.
31. Before coming to the terms of reference,
there must be sincere effort by way of ground work in order to
facilitate proper legal answer to the terms of reference. Before
delving and cracking the hard nut as posed and flashed, certain
relevant provisions are to be taken note of at the first instance :-
Section 4 of the CrPC.
4. Trial of offences under the Indian Penal
Code and other laws.
1. All offences under the Indian Penal Code
(45 of 1860 ) shall be investigated, inquired into,
tried, and otherwise dealt with according to the
provisions hereinafter contained.
2. All offences under any other law shall be
investigated, inquired into, tried, and otherwise
dealt with according to the same provisions, but
subject to any enactment for the time being in
force regulating the manner or place of
investigating, inquiring into, trying or otherwise
dealing with such offences.
Section 5. Saving. Nothing contained in this
Code shall, in the absence of a specific provision
to the contrary, affect any special or local law for
the time being in force, or any special jurisdiction
or power conferred, or any special form of
procedure prescribed, by any other law for the time
being in force.
Section 5 of the IPC
Certain laws not to be affected by this Act.-
Nothing in this Act shall affect the provisions of
any Act for punishing mutiny and desertion of
officers, soldiers, sailors or airmen in the service
of the Government of India or the provisions of
any special or local law.
Patna High Court CR. WJC No.887 of 2013
30/173
Section 26 of the General Clauses Act:-
Provision as to offences punishable under
two or more enactments.- Where an act or
omission constitutes an offence under two or more
enactments, then the offender shall be liable to be
prosecuted and punished under either or any of
those enactments, but shall not be liable to be
punished twice for the same offence.
36AD Application of Code of Criminal
Procedure, 1973 to proceedings before Special
Court.--
(1) Save as otherwise provided in this Act,
the provisions of the Code of Criminal Procedure,
1973 (2 of 1974) (including the provisions as to
bails or bonds), shall apply to the proceedings
before a Special Court and for the purposes of the
said provisions, the Special Court shall be deemed
to be a Court of Session and the person conducting
the prosecution before the Special Court, shall be
deemed to be a Public Prosecutor: Provided that
the Central Government or the State Government
may also appoint, for any case or class or group of
cases, a Special Public Prosecutor.
(2) .........
(3) .........
Section 2 of the Drugs and Cosmetics Act:-
"2. Application of other laws not barred.--
The provisions of this Act shall be in addition to and
not in derogation of the Dangerous Drugs Act, 1930
(2 of 1930), and any other Law for the time being in
force."
32. It is needless to say that the IPC, CrPC,
Drugs and Cosmetics Act are placed in the concurrent list of the
seventh schedule to the Constitution of India, whereupon, all
the same command equal recognition. It is well settled that an
Patna High Court CR. WJC No.887 of 2013
31/173
act or omission can constitute an offence under IPC and at the
same time, be an offence under any other law, and are liable to
be prosecuted at the same time or distinctly, has been held by
the Apex Court in T.S. Baliah vs. T.S. Rengachari reported in
(1969) 3 SCR 65 as follows:-
"6. As regards the criminal prosecution
arising from the returns for the assessment
years 1958-59, 1959-60 and 1960-61, it was
contended on behalf of the appellant that
the provision of Section 52 of the 1922 Act
was a special provision in this behalf, so
that there could be prosecution of the
appellant only under that provision and not
under Section 177, Indian Penal Code
which was a general provision. It was said
that in respect of the matters covered by
Section 52 of the 1922 Act, the provisions
of Section 177, Indian Penal Code should
be taken to have been repealed by
implication and therefore the prosecution of
the appellant under Section 177, Indian
Penal Code was illegal. We are unable to
accept this argument as correct.
Before coming to the conclusion that
there is a repeal by implication, the Court
must be satisfied that the two enactments
are so inconsistent or repugnant that they
cannot stand together and the repeal of the
express prior enactment must flow from
necessary implication of the language of the
later enactment. It is therefore necessary in
this connection to scrutinise the terms and
consider the true meaning and effect of the
two enactments.
It was argued on behalf of the
appellant that there was inconsistency
between the provisions of Section 177,
Indian Penal Code and of Section 52 of the
1922 Act. It was said that the differences
Patna High Court CR. WJC No.887 of 2013
32/173
between the two enactments were as
follows: (1) Section 177, Indian Penal Code
is non-compoundable whereas the offence
under Section 52 of the 1922 Act is
compoundable with the permission of the
Inspecting Assistant Commissioner by
virtue of Clause (2) of Section 53 of the
1922 Act, (2) The prosecution under Section
177, Indian Penal Code can be instituted by
any public servant under Section 195,
Criminal Procedure Code, whereas the
prosecution under Section 53 of the 1922
Act has to be instituted at the instance of the
Inspecting Assistant Commissioner as
provided under Section 53(1) of the 1922
Act, (3) An offence under Section 177,
Indian Penal Code is triable by the
Presidency Magistrate, a Magistrate of the
First Class or Second Class, whereas the
offence under Section 52 of the 1922 Act
cannot be tried by a Second Class
Magistrate unless specially empowered by
the Central Government, and (4) If penalty
is levied under the 1922 Act in respect of
certain matters, no prosecution can be
instituted by virtue of the provisions under
Section 28(4) of the 1922 Act in respect of
the same matters, whereas there is no such
bar under Section l Indian Penal Code. In
our opinion, these differences do not
support the argument that there is any
repugnancy or inconsistency between the
two statutes.
The provisions enacted in Section 52
of the 1922 Act do not alter the nature or
quality of the offence enacted in Section
177, Indian Penal Code but it merely
provides a new course of procedure for
what was already an offence. In a case of
this description the new statute is regarded
not as superseding, nor repealing by
implication the previous law, but as
cumulative.
For instance, it was held in R. v.
Patna High Court CR. WJC No.887 of 2013
33/173
Robinson, [1759] 2 Burr. 800 that Section
10 of the Poor Relief Act, 1691 (c. 11), in
imposing a penalty of £5, recoverable
summarily, on parish officers who refused
to receive a pauper removed to their parish
by an order of justices, was to leave those
officers still liable to indictment for the
common law offence of disobeying the
order which the justices had authority to
make under the Poor Relief Act, 1662 (c.
12). In cases such as these, it is to be
presumed that the legislature knew that the
offence was punishable by indictment, and
that, as it did not in express terms abolish
the common law proceedings, it intended
that the two remedies should coexist. In R.
v. Hopkins, [1893] 1 Q.B. 621 where the
Metropolitan Police Act, 1839 (c. 47), by
one section (Section 57) empowered a
magistrate to impose a penalty of not more
than 40s. for an offence, and by another
section (Section 77) empowered him, if the
penalty was not paid, to commit the
offender to prison for a month, and a later
statute [Metropolitan Police Act, 1864 (c.
55), Section (1)] repealed Section 57 and
substituted for it one empowering the
magistrate to impose the same penalty or to
commit to prison for not more than three
days, it was held by the Queen's Bench that
this did not impliedly repeal Section 77, but
that it was competent for the magistrate to
sentence an offender to pay a penalty of
40s. and in default of payment to be
imprisoned for a month. The principle of
these decisions applies to the present case
and having regard to the terms and language
of the two enactments, we are of opinion
that there is no repugnancy or inconsistency
and the two enactments can stand together
and they must therefore be treated as
cumulative in effect. We are of the opinion
that the doctrine of implied repeal cannot be
applied in the circumstances of this case
Patna High Court CR. WJC No.887 of 2013
34/173
and that the argument of the appellant on
this point must be rejected.
33. Same view has also been reaffirmed in
State of Maharashtra v. Sayyed Hussain as reported in (2019)
18 SCC 145 which are as follows:-
"8. There is no bar to a trial or conviction
of an offender under two different enactments,
but the bar is only to the punishment of the
offender twice for the offence. Where an act or
an omission constitutes an offence under two
enactments, the offender may be prosecuted and
punished under either or both enactments but
shall not be liable to be punished twice for the
same offence.1 The same set of facts, in
conceivable cases, can constitute offences under
two different laws. An act or an omission can
amount to and constitute an offence under the
Indian Penal Code and at the same time, an
offence under any other law.2 The High Court
ought to have taken note of Section 26 of the
General Clauses Act, 1897 which reads as
follows:
Provisions as to offences punishable
under two or more enactments-Where an act or
omission constitutes an offence under two or
more enactments, then the offender shall be
liable to be prosecuted and punished under either
or any of those enactments, but shall not be
liable to be punished twice for the same offence.
9. In Hat Singh's (2003) 2 SCC 152 case
this Court discussed the doctrine of double
jeopardy and Section 26 of the General Clauses
Act to observe that prosecution under two
different Acts is permissible if the ingredients of
the provisions are satisfied on the same facts.
While considering a dispute about the
prosecution of the Respondent therein for
offences under the Mines and Minerals
(Development and Regulation) Act 1957 and
Patna High Court CR. WJC No.887 of 2013
35/173
Indian Penal Code, this Court in State (NCT of
Delhi) v. Sanjay : (2014) 9 SCC 772 held that
there is no bar in prosecuting persons under the
Penal Code where the offences committed by
persons are penal and cognizable offences. A
perusal of the provisions of the FSS Act would
make it clear that there is no bar for prosecution
under the Indian Penal Code merely because the
provisions in the FSS Act prescribe penalties.
We, therefore, set aside the finding of the High
Court on the first point.
34. From the perusal of Section 2 of the Drugs
and Cosmetics Act, it is crystal clear that the legislative intent
was/is not to over-ride or supersede the provisions of the IPC or
other enactment whereupon, it cannot be found to abrogate the
applicability of the IPC or other Act. The Offences do not
overlap, and therefore, the maxim 'Generalia Specialibus Non
Derogant' is inapplicable. Even another Special Act, while
having its application do recognize the Drug & Cosmetic Act,
such as NDPS Act.
35. Further in order to properly appreciate the
intention of the legislature by having presence of 36AD, the
other relevant provisions that means to say 36, 36A, 36AB,
36AC introduced in the year 2008 should also be taken note of
and so is quoted below in chronological manner:-
36. Magistrate's power to impose enhanced
penalties.- Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of
Patna High Court CR. WJC No.887 of 2013
36/173
1974)], it shall be lawful for [any Metropolitan
Magistrate or any Judicial Magistrate of the first
class] to pass any sentence authorised by this Act
in excess of his powers under the said Code.
36A. Certain offences to be tried
summarily. --Notwithstanding anything contained
in the Code of Criminal Procedure, 1973 (2 of
1974), 240 [all offences(except the offences triable
by the Special Court under section 36AB or Court
of Session) under this Act], punishable with
imprisonment for a term not exceeding three years,
other than an offence under clause (b) of sub-
section (1) of section 33-I, shall be tried in a
summary way by a Judicial Magistrate of the first
class specially empowered in this behalf by the
State Government or by a Metropolitan Magistrate
and the provisions of sections 262 to 265 (both
inclusive) of the said Code shall, as far as may be,
apply to such trial: Provided that, in the case of any
conviction in a summary trial under this section, it
shall be lawful for the Magistrate to pass a
sentence of imprisonment for a term not exceeding
one year: Provided further that when at the
commencement of, or in the course of, a summary
trial under this section it appears to the Magistrate
that the nature of the case is such that a sentence of
imprisonment for a term exceeding one year may
have to be passed or that it is, for any other reason,
undesirable to try the case summarily, the
Magistrate shall, after hearing the parties, record
an order to that effect and thereafter recall any
witness who has been examined and proceed to
hear or rehear the case in the manner provided by
the said Code.
36AB (1)The Central Government, or the
State Government, in consultation with the Chief
Justice of the High Court, shall, for trial of
offences relating to adulterated drugs or spurious
drugs and punishable under clauses
(a) and (b) of section 13, sub-section (3) of
section 22, clauses (a) and (c) of section 27,
section 28, section 28A, section 28B and clause (b)
of sub-section (l) of section 30 and other offences
Patna High Court CR. WJC No.887 of 2013
37/173
relating to adulterated drugs or spurious drugs, by
notification, designate one or more Courts of
Session as a Special Court or Special Courts for
such area or areas or for such case or class or
group of cases as may be specified in the
notification. Explanation .--In this sub-section,
"High Court" means the High Court of the State in
which a Court of Session designated as Special
Court was functioning immediately before such
designation.
(2). While trying an offence under this Act,
a Special Court shall also try an offence, other than
an offence referred to in sub-section (l), with
which the accused may, under the Code of
Criminal Procedure, 1973 (2 of 1974), be charged
at the same trial.
36AC Offences to be cognizable and non-
bailable in certain cases.
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974)
(a) every offence, relating to adulterated or
spurious drug and punishable under clauses (a) and
(c) of sub-section (1) of section 13, clause (a) of
sub-section (2) of section 13, sub-section (3) of
section 22, clauses (a) and (c) of section 27,
section 28, section 28A, section 28B and sub-
sections (1) and (2) of section 30 and other
offences relating to adulterated drugs or spurious
drugs, shall be cognizable.
(b) no person accused, of an offence
punishable under clauses (a) and (c) of sub-section
(1) of section 13, clause (a) of sub-section (2) of
section 13, sub-section (3) of section 22, clauses
(a) and (c) of section 27, section 28, section 28A,
section 28B and sub-sections (1) and (2) of section
30 and other offences relating to adulterated drugs
or spurious drugs, shall be released on bail or on
his own bond unless--
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release; and
Patna High Court CR. WJC No.887 of 2013
38/173
(ii) where the Public Prosecutor opposes the
application, the Court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail:
Provided that a person, who, is under the
age of sixteen years, or is a woman or is sick or
infirm, may be released on bail, if the Special
Court so directs.
(2) The limitation on granting of bail
specified in clause (b) of sub-section (1) is in
addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other
law for the time being in force on granting of bail.
(3) Nothing contained in this section shall
be deemed to affect the special powers of the High
Court regarding bail under section 439 of the Code
of Criminal Procedure, 1973 (2 of 1974) and the
High Court may exercise such powers including
the power under clause (b) of sub-section (1) of
that section as if the reference to "Magistrate" in
that section includes also a reference to a "Special
Court" designated under section 36AB.
36. It is to be borne in mind that under Section
3 of the Act, no definition is prescribed relating to nature of
offence, nature of prosecution, mode of prosecution hence it is
to be taken from CrPC, more particularly, when the same has
not been declared repugnant to CrPC. Furthermore, Section
36AD of the Act does permit whereupon the relevant words so
used could be identified through CrPC.:-
(i) Bailable, non bailable:- "bailable offence"
means an offence which is shown as bailable in the
First Schedule, or which is made bailable by any other
law for the time being in force; and "non-bailable
Patna High Court CR. WJC No.887 of 2013
39/173
offence" means any other offence;
(ii)"cognizable offence" means an offence for
which, and "cognizable case" means a case in which,
a police officer may, in accordance with the First
Schedule or under any other law for the time being in
force, arrest without warrant;
(iii)"complaint" means any allegation made
orally or in writing to a Magistrate, with a view to
his taking action under this Code, that some person,
whether known or unknown, has committed an
offence, but does not include a police report.
(iv)"investigation" includes all the proceedings
under this Code for the collection of evidence
conducted by a police officer or by any person (other
than a Magistrate) who is authorized by a Magistrate
in this behalf;
(v) "non-cognizable offence' means an offence
for which, and "non-cognizable case" means a case
in which, a police officer has no authority to arrest
without warrant;
(vi) "offence" means any act or omission made
punishable by any law for the time being in force and
includes any act in respect of which a complaint may
be made under section 20 of the Cattle-trespass Act,
1871 (1 of 1871);
37. In its continuity Section 32 of the Act (as
amended vide Act No. 26/2018) is also found appropriate to be
referred below:-
(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.
Patna High Court CR. WJC No.887 of 2013
40/173
(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.
38. From bare perusal of the Section 32 of the Act, it
is manifest that no particular mode of launching of prosecution
has been prescribed rather it is the cognizance taking court
which has to see the mode of prosecution as Section 190 of the
CrPC adhere to three kinds of launching of prosecution. At this
proper juncture, Section 190 CrPC also needs to be
incorporated:-
"190. Cognizance of offences by Magistrates.
(1)Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf
under sub- section
(2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other
than a police officer, or upon his own knowledge, that
such offence has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance
under sub- section (1) of such offences as are within
his competence to inquire into or try
39. After going through Section 190 CrPC, it is
Patna High Court CR. WJC No.887 of 2013
41/173
evident that it speaks about three eventualities whereupon the
court could take cognizance of an offence i.e. on complaint, or
on police report (under Section 173 CrPC) or on its own. After
having conjoint reading of Section 190 CrPC in consonance
with Section 32 of the Act, it is crystal clear that Section 32
does not encapsulate 190(a) CrPC or vice versa. That means to
say, Section 32 does not specify the judicial application of mind
only if the prosecution is in accordance with Section 190(a) of
the CrPC nor has any such kind of prescription.
40. Furthermore, though as per Section 32 of the Act,
there has not been any kind of distinction. Moreover, Section 2
permits application of other Penal Law, and for that, no separate
forum save and except so prescribed under Section 32 of the
Act has been allowed.
41. The other aspect which, the present moment drew
attention, is why the Act has been amended and the answer is in
the background of anti-social activities of the offender even
costing life of consumer. The same could be seen in the
background of Section 32 (before Amendment) which reads as
follows:-
"32. (1) No prosecution under this Chapter
shall be instituted except by an Inspector.
(2) No Court inferior to that of a
Presidency Magistrate or of a Magistrate of the
Patna High Court CR. WJC No.887 of 2013
42/173
first class 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."
42. In likewise manner Section 36 has got no
presence in the original Act, however, been introduced through
an amendment as follows:-
36. Magistrate's power to impose enhanced
penalties.- Notwithstanding anything contained in
section 32 of the Code of Criminal Procedure,
1898 (V of 1898) it shall be lawful for any
presidency magistrate or any magistrate of the first
class to pass any sentence authorised by this Act in
excess of his powers under section 32 of the said
Code.
43. Other Sections though found subsequently
amended did not require to be detailed being non-nonchalance
over the issue.
44. After subsequent amendment introduced vide Act
no. 7 of 1986, the Section 32 reads as follows:-
"32. Cognizance of offence.- No prosecution
under this Chapter shall be instituted except by an
Inspector [or by the persons aggrieved or by a
recognized consumer association whether such
person is a member of that association or not.]
(2) No Court inferior to that of [a Metropolitan
Magistrate or of a Judicial Magistrate of the first
class] shall try an offence punishable under this
Chapter.
Patna High Court CR. WJC No.887 of 2013
43/173
(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.
45. Section 36 reads as follows:-
"36. Magistrate's power to impose enhance
penalties.- Notwithstanding anything contained in
[the Code of Criminal Procedure, 1973, (2 of 1974)]
it shall be lawful for [any Metropolitan or any
Judicial Magistrate of first class to pass any sentence
authorized by this Act in excess of his powers under
the said Code.
46. And then, a new Section 36A (Act no. 68 of
1982) has been introduced which reads as follows:-
"36-A. Certain offences to be tried
summarily.- Notwithstanding anything
contained in the Code of Criminal Procedure,
1973 (2 of 1974), all offences under this Act,
punishable with imprisonment for a term not
exceeding three years, other than an offence
under Cl (b) of sub-section (1) of Sec. 33-I, shall
be tried in a summary way of judicial Magistrate
of the first class specially empowered in this
behalf by the State Government or by a
Metropolitan Magistrate and the provisions of
Secs. 262 to 265 (both inclusive) of the said
Code shall, as for as may be, apply to such trial.
Provided that, in the case of any conviction
in a summary trial under this section, it shall be
lawful for the Magistrate to pass a sentence of
imprisonment for a term not exceeding one year.
Provided further that when at the
commencement of, or in the course of a
summary trial under this section, it appears to
the Magistrate that the nature of the case is such
that a sentence of imprisonment for a term
exceeding one year may have to be passed or
that it is, for any other reason, undesirable to try
Patna High Court CR. WJC No.887 of 2013
44/173
the case summarily, the Magistrate shall, after
hearing the parties, record an order to that effect
and thereafter recall any witness who has been
examined and proceed to hear or rehear the case
in the manner provided by the said code."
47. So having comparative study of successive
amendment of the Act, it has become crystal clear that by way
of amendment, the penal provisions have been made harsher
and in likewise manner, identification of category in
consonance with proper marking of the court for trial has also
been made. Here, it looks worth mention to note that in the year
1997, when Hindustan Lever Case has come up, no such
stringent provisions were nor the identification of respective
courts.
48. Learned counsel for the petitioners by
referring the photo copy of the Advance Law Lexicon (by P.M.
Ramanath Aiyar) put much emphasis over the presence of
Section 36AD and submitted that the same happens to be within
the banner of "non obstante" and to explain the same, referred
the dictionary meaning which suggest notwithstanding or not
opposing while non obstante Clause has been explained as a
non obstante clause is a legislative device which is usually
implied to give over-riding effect to certain provisions over
some contrary provisions that may be found either in the same
Patna High Court CR. WJC No.887 of 2013
45/173
enactment or some other enactment that is to say, to avoid the
operation and effect of all contrary provisions. Furthermore, the
aforesaid definition happens to be based upon principle decided
by the Apex Court in Union of India & Anr. v. G.M. Kokil &
Ors. as reported in AIR 1984 SC 1022, relied in Vaishali
Abhimanyu Joshi v. Nanasaheb Gopal Joshi reported in
(2017) 14 SCC 373.
49. On simple and plain reading of Section
32AD, the language so used by the legislature is indicative of
the fact that it is not at all within the banner of non obstante nor
the same is found influenced by any such perception. As for
illustration Section 22 of the Transplantation of Human
Organ and Tissues Act, 1994 could be seen which reads as
follows:-
22. Cognizance of Offences.- (1) No Court shall
take cognizance of an offence under this Act except
on a complaint made by--
(a) the Appropriate Authority concerned, or any
officer authorised in this behalf by the Central
Government or the State Government or, as the case
may be, the Appropriate Authority; or
(b) a person who has given notice of not less
than sixty days, in such manner as may be prescribed,
to the Appropriate Authority concerned, of the
alleged offence and of his intention to make a
complaint to the Court.
(2) No Court other than than of a Metropolitan
Magistrate or a Judicial Magistrate of the first class
shall try any offence punishable under this Act.
(3) Where a complaint has been made under
Patna High Court CR. WJC No.887 of 2013
46/173
Clause (b) of sub-section (1), the Court may, on
demand by such person, direct the Appropriate
Authority to make available copies of the relevant
records in its possession to such person.
50. Then example should be seen. Though it is
apparent that Section 2, Section 32(3) did not clutch over
applicability of other enactment which, as per Section 80 of the
NDPS Act, did prescribe authorization of power in accordance
with Section 53 of the Act which also include department of
drug and cosmetic prescribes following mode of prosecution:-
36A. Certain offences to be tried summarily.
--Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), 240 [all
offences(except the offences triable by the Special
Court under section 36AB or Court of Session)
under this Act], punishable with imprisonment for
a term not exceeding three years, other than an
offence under clause (b) of sub-section (1) of
section 33-I, shall be tried in a summary way by a
Judicial Magistrate of the first class specially
empowered in this behalf by the State Government
or by a Metropolitan Magistrate and the provisions
of sections 262 to 265 (both inclusive) of the said
Code shall, as far as may be, apply to such trial:
Provided that, in the case of any conviction in a
summary trial under this section, it shall be lawful
for the Magistrate to pass a sentence of
imprisonment for a term not exceeding one year:
Provided further that when at the commencement
of, or in the course of, a summary trial under this
section it appears to the Magistrate that the nature
of the case is such that a sentence of imprisonment
for a term exceeding one year may have to be
passed or that it is, for any other reason,
undesirable to try the case summarily, the
Magistrate shall, after hearing the parties, record
Patna High Court CR. WJC No.887 of 2013
47/173
an order to that effect and thereafter recall any
witness who has been examined and proceed to
hear or rehear the case in the manner provided by
the said Code.
36AC Offences to be cognizable and non-
bailable in certain cases.
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974)
(a) every offence, relating to adulterated or
spurious drug and punishable under clauses (a) and
(c) of sub-section (1) of section 13, clause (a) of
sub-section (2) of section 13, sub-section (3) of
section 22, clauses (a) and (c) of section 27,
section 28, section 28A, section 28B and sub-
sections (1) and (2) of section 30 and other
offences relating to adulterated drugs or spurious
drugs, shall be cognizable.
(b) no person accused, of an offence
punishable under clauses (a) and (c) of sub-section
(1) of section 13, clause (a) of sub-section (2) of
section 13, sub-section (3) of section 22, clauses
(a) and (c) of section 27, section 28, section 28A,
section 28B and sub-sections (1) and (2) of section
30 and other offences relating to adulterated drugs
or spurious drugs, shall be released on bail or on
his own bond unless--
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release; and
(ii) where the Public Prosecutor opposes the
application, the Court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail:
Provided that a person, who, is under the
age of sixteen years, or is a woman or is sick or
infirm, may be released on bail, if the Special
Court so directs.
(2) The limitation on granting of bail
specified in clause (b) of sub-section (1) is in
addition to the limitations under the Code of
Patna High Court CR. WJC No.887 of 2013
48/173
Criminal Procedure, 1973 (2 of 1974) or any other
law for the time being in force on granting of bail.
(3) Nothing contained in this section shall
be deemed to affect the special powers of the High
Court regarding bail under section 439 of the Code
of Criminal Procedure, 1973 (2 of 1974) and the
High Court may exercise such powers including
the power under clause (b) of sub-section (1) of
that section as if the reference to "Magistrate" in
that section includes also a reference to a "Special
Court" designated under section 36AB.
51. That means to say, irrespective of presence
of CrPC where Special Act clearly bars applicability of the code
with regard to mode of drawing of prosecution, trial etc, then,
in that event, procedure so prescribed under the Special Act will
have over-riding effect over the CrPC otherwise CrPC in its
natural phenomenon will take care of. In State of Bihar v.
Bihar Rajya MSESKK Mahasangh as reported in (2005) 9
SCC 129, it has been held as follows:-
"45. A non-obstante clause is generally
appended to a section with a view to give the
enacting part of the section, in case of conflict, an
overriding effect over the provision in the same or
other Act mentioned in the non-obstante clause. It is
equivalent to saying that inspite of the provisions or
Act mentioned in the non-obstante clause, the
provision following it will have its full operation or
the provisions embraced in the non-obstante clause
will not be an impediment for the operation of the
enactment or the provision in which the non-obstante
clause occurs. [See 'Principles of Statutory
Interpretation, 9th Edition by Justice G.P. Singh -
Chapter V, Synopsis IV at pages 318 & 319]
46. When two or more laws or provisions
operate in the same field and each contains a non-
obstante clause stating that its provision will override
Patna High Court CR. WJC No.887 of 2013
49/173
those of any other provisions or law, stimulating and
intricate problems of interpretation arise. In resolving
such problems of interpretation, no settled principles
can be applied except to refer to the object and
purpose of each of the two provisions, containing a
non-obstante clause. Two provisions in same Act each
containing a non-obstante clause, requires a
harmonious interpretation of the two seemingly
conflicting provisions in the same Act. In this
difficult exercise, there are involved proper
consideration of giving effect to the object and
purpose of two provisions and the language employed
in each. [See for relevant discussion in para 20 in Shri
Swaran Singh and Anr. v. Shri Kasturi Lal;
[1977]2SCR421 ].
47. Normally the use of phrase by the
Legislature in a statutory provision like
'notwithstanding anything to the contrary contained in
this Act' is equivalent to saying that the Act shall be
no impediment to the measure [See Law Lexicon
words 'notwithstanding anything in this Act to the
contrary']. Use of such expression is another way of
saying that the provision in which the non-obstante
clause occurs usually would prevail over other
provisions in the Act. Thus, non-obstante clauses are
not always to be regarded as repealing clauses nor as
clauses which expressly or completely supersede any
other provision of the law, but merely as clauses
which remove all obstructions which might arise out
of the provisions of any other law in the way of the
operation of the principle enacting provision to which
the non-obstante clause is attached. [See Bipathumma
and Ors. v. Mariam Bibi; 1966(1) MLJ 162
52. The same view has further been followed in
Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi reported
in (2017) 14 SCC 373, which is as follows:-
"35. A statutory provision containing non
obstante Clause has to be given full effect. This
Court in Union of India and Anr. v. G.M. Kokil and
Patna High Court CR. WJC No.887 of 2013
50/173
Ors. : 1984 (Supp) SCC 196 has laid down in
paragraph 11 as below:
11....It is well-known that a non obstante
Clause is a legislative device which is usually
employed to give overriding effect to certain
provisions over some contrary provisions that may be
found either in the same enactment or some other
enactment, that is to say, to avoid the operation and
effect of all contrary provisions. Thus the non
obstante Clause in Section 70, namely,
"notwithstanding anything contained in that Act" must
mean notwithstanding anything to the contrary
contained in that Act and as such it must refer to the
exempting provisions which would be contrary to the
general applicability of the Act...
53. Now, keeping the aforesaid principle in
mind, it is apparent from Section 36AD that all the provisions
of CrPC have been made applicable save and except whatever
been exclusively laid down under the Act barricading to some
extent so, the relevant provisions having so dealing with the
circumstances, excluding application of CrPC under banner of
non obstante clause are to be seen in order to weigh its impact.
54. Out of curiosity, when the Act has been
critically analyzed, it is evident that only Section 36, 36A,
36AC give such impression. On in-depth consideration of these
Sections, it is manifest that Section 36 deals with the power of a
Magistrate to inflict sentence in excess of power so vested
under CrPC. Section 36A deals with trial of all kinds of
offences having less than three years sentence except triable by
Patna High Court CR. WJC No.887 of 2013
51/173
the Special Court/and the offence covered under 33-I (1) (b),
shall be tried summarily. Furthermore, at one occasion sentence
less than one year would be permissible while in the same
breath, it has also been allowed to Magistrate to proceed just in
reverse gear, if found so just and proper in the facts and
circumstances of the case, and on that very score, another
procedure has been prescribed.
55. In likewise manner, 36AC deals with
constitution of Special Court for the trial of offences falling
under Section 13(a) (i) (c), 13(2) (a) Section 22 (3), Section
27(a), (c), Section 28, Section 28 (A), Section 28(B), Section
30(1) (b) including other offences and on account thereof, has
been classified as cognizable relating to adulterated drugs or
spurious drugs and for that, the Special Court has been
constituted which should be the court of sessions as provided
under Section 36AB. Furthermore, the Sessions Court has also
been empowered to try the offence punishable under the other
penal offences.
56. Now comes the issue of nature of offence as
discussed under Section 36AC of the Act. Under Sections 13(1)
(a)(c), 13 (2) (a), 22 (3), 27(a)(c), 28, 28A, 28B, 30(1) (2) and
other offences relating to adulterated and spurious drugs have
Patna High Court CR. WJC No.887 of 2013
52/173
been shown as cognizable. Irrespective of period of sentence so
prescribed therefor, it is needless to say that Original Act
contained under 13(1), sentence of period extending one year or
with fine extending to Rs. 500 or with both, 13(2) habitual
offender, sentence extending upto two years, fine extending one
thousand or both. By way of an amendment (1982) 13(1) (a)
extending punishment upto three years and fine extenting five
thousand. So far 13(1)(i) is concerned, upto three years, or fine
extending five thousand or with both. 13(2)(a) deals with the
situation of habitual offender falling under category of Section
13(1) (a) (c) prescribing enhanced sentence, Section 23 deals
with a situation whereunder search and seizure is obstructed,
27(a) (c) regarding manufacture, sale of adulterated and
spurious drugs prescribing higher sentence, Section 28, 28A,
28B, non discloser of identity of manufacturer, non production
of relevant document, manufacture of drugs and cosmetics in
contravention of Section 26A, Section 30 is the provision
dealing with conviction.
57. In likewise manner, when the sublimation of
Chapter IV-A is taken up, it is evident that it has got
independent identity as per Section 33A. Section 33E defines
mis-branded drugs, 33EE, adulterated drugs, 33EEA-spurious
Patna High Court CR. WJC No.887 of 2013
53/173
drugs, Section 33-I prescribes mode of punishment while 33-V,
habitual offender/previous convict. Section 33H provides
application of Section 22, 23, 25, 33 on prosecution.
Furthermore, having parallel scrutiny of old as well as new Act,
it is evident that term of sentence has been made harsh.
58. Now the manner of confiscation has to be
seen. Chapter-IV, Section 31 deals with confiscation. For better
appreciation same is quoted below:-
Confiscation:-
Where any person has been convicted under this
Chapter for contravening any such provision of this
Chapter or any rule made thereunder as may be
specified by rule made in this behalf, the stock of the
drug 2[or cosmetic] in respect of which the
contravention has been made shall be liable to
confiscation [and if such contravention is in respect
of-- [(i) manufacture of any drug deemed to be
misbranded under section 17, adulterated under
section 17A or spurious under section 17B; or (ii)
manufacture for sale, or for distribution, sale, or
stocking or exhibiting or offering for sale,] or
distribution of any drug without a valid licence as
required under clause (c) of section 18,
any implements or machinery used in such
manufacture, sale or distribution and any receptacles,
packages or coverings in which such drug is
contained and the animals, vehicles, vessels or other
conveyances used in carrying such drug shall also be
liable to confiscation]
[(2) Without prejudice to the provisions contained in
sub-section (1) where the Court is satisfied, on the
application of an Inspector or otherwise and after
such inquiry as may be necessary that the drug or
cosmetic is not of standard quality [or is a
[misbranded, adulterated or spurious drug or
Patna High Court CR. WJC No.887 of 2013
54/173
misbranded or spurious cosmetic,] such drug or, as
the case may be, such cosmetic shall be liable to
confiscation.]
59. Chapter IVA, Section 33 K speaks about
confiscation and for better appreciation, the same is quoted
below:-
33-K. Confiscation.- Where any person has
been convicted under this Chapter, the stock of
the [Ayurvedic, Siddha or Unani] drug, in
respect of which the contravention has been
made, shall be liable to confiscation.
Firstly was introduced in the year 1960 by the
Act No. 351/1960, then in the year 1962 and then 1982 which is
still continuing in same frame.
60. In the background of above referred relevant
provisions, it has become abundantly clear that save and except
superficial way of repugnance, that too, confined to Section 36,
36A and in that circumstance may sterile second schedule of the
CrPC to some extent, however, with regard to majority of the
event could be seen as wardieen CrPC. Hence, it could not be
said that application of CrPC has completely been excluded.
Furthermore, permitting registration of case under different
Penal Law including that of Act, as the same could not be
stockade with conservative interpretation.
Patna High Court CR. WJC No.887 of 2013
55/173
61. In Lalita Kumari v. Government of Uttar
Pradesh as reported in (2014) 2 SCC 1, the Constitution Bench
after considering, analyzing, discussing the ambit and scope of
Section 154 CrPC observed as follows:-
"115. Although, we, in unequivocal terms,
hold that Section 154 of the Code postulates the
mandatory registration of FIRs on receipt of all
cognizable offence, yet, there may be instances
where preliminary inquiry may be required
owing to the change in genesis and novelty of
crimes with the passage of time. One such
instance is in the case of allegations relating to
medical negligence on the part of doctors. It will
be unfair and inequitable to prosecute a medical
professional only on the basis of the allegations
in the complaint.
116. In the context of medical negligence
cases, in Jacob Mathew (supra), it was held by
this Court as under:
51. We may not be understood as holding
that doctors can never be prosecuted for an
offence of which rashness or negligence is an
essential ingredient. All that we are doing is to
emphasise the need for care and caution in the
interest of society; for, the service which the
medical profession renders to human beings is
probably the noblest of all, and hence there is a
need for protecting doctors from frivolous or
unjust prosecutions. Many a complainant prefer
recourse to criminal process as a tool for
pressurising the medical professional for
extracting uncalled for or unjust compensation.
Such malicious proceedings have to be guarded
against.
52. Statutory rules or executive
instructions incorporating certain guidelines need
to be framed and issued by the Government of
India and/or the State Governments in
consultation with the Medical Council of India.
So long as it is not done, we propose to lay down
Patna High Court CR. WJC No.887 of 2013
56/173
certain guidelines for the future which should
govern the prosecution of doctors for offences of
which criminal rashness or criminal negligence
is an ingredient. A private complaint may not be
entertained unless the complainant has produced
prima facie evidence before the court in the form
of a credible opinion given by another competent
doctor to support the charge of rashness or
negligence on the part of the accused doctor. The
investigating officer should, before proceeding
against the doctor accused of rash or negligent
act or omission, obtain an independent and
competent medical opinion preferably from a
doctor in government service, qualified in that
branch of medical practice who can normally be
expected to give an impartial and unbiased
opinion applying the Bolam test to the facts
collected in the investigation. A doctor accused
of rashness or negligence, may not be arrested in
a routine manner (simply because a charge has
been levelled against him). Unless his arrest is
necessary for furthering the investigation or for
collecting evidence or unless the investigating
officer feels satisfied that the doctor proceeded
against would not make himself available to face
the prosecution unless arrested, the arrest may be
withheld.
117. In the context of offences relating to
corruption, this Court in P. Sirajuddin [(1970)1
SCC 595] expressed the need for a preliminary
inquiry before proceeding against public
servants.
118. Similarly, in Tapan Kumar Singh
[(2003)6 SCC 175], this Court has validated a
preliminary inquiry prior to registering an FIR
only on the ground that at the time the first
information is received, the same does not
disclose a cognizable offence.
62. And then, concluded by way of issuing
direction under para-120 which reads as follows:-
Patna High Court CR. WJC No.887 of 2013
57/173
"120. In view of the aforesaid discussion, we
hold:
120.1. Registration of FIR is mandatory under
Section 154 of the Code, if the information discloses
commission of a cognizable offence and no
preliminary inquiry is permissible in such a situation.
120.2. If the information received does not
disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry may
be conducted only to ascertain whether cognizable
offence is disclosed or not.
120.3. If the inquiry discloses the commission
of a cognizable offence, the FIR must be registered.
In cases where preliminary inquiry ends in closing
the complaint, a copy of the entry of such closure
must be supplied to the first informant forthwith and
not later than one week. It must disclose reasons in
brief for closing the complaint and not proceeding
further.
120.4. The police officer cannot avoid his
duty of registering offence if cognizable offence is
disclosed. Action must be taken against erring
officers who do not register the FIR if information
received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not
to verify the veracity or otherwise of the information
received but only to ascertain whether the
information reveals any cognizable offence.
120.6. As to what type and in which cases
preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case. The
category of cases in which preliminary inquiry may
be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal
delay/laches in initiating criminal prosecution, for
example, over 3 months delay in reporting the matter
without satisfactorily explaining the reasons for
delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
Patna High Court CR. WJC No.887 of 2013
58/173
preliminary inquiry.
120.7. While ensuring and protecting the
rights of the accused and the complainant, a
preliminary inquiry should be made time bound and
in any case it should not exceed fifteen days
generally and in exceptional cases, by giving
adequate reasons, six weeks time is provided. The
fact of such delay and the causes of it must be
reflected in the General Diary entry.
120.8. Since the General Diary/Station
Diary/Daily Diary is the record of all information
received in a police station, we direct that all
information relating to cognizable offences, whether
resulting in registration of FIR or leading to an
inquiry, must be mandatorily and meticulously
reflected in the said Diary and the decision to
conduct a preliminary inquiry must also be reflected,
as mentioned above."
63. Before coming to the next issue, some sort
of extra effort is to be taken relating to in what manner there
should be interpretation of a statute. In Sarah Mathew v.
Institute of cardiovascular disease as reported in (2014) 2 SCC
62, the Constitution Bench held as follows:-
"41. There can be no dispute about the rules of
interpretation cited by the counsel. It is true that there
is no ambiguity in the relevant provisions. But, it
must be borne in mind that the word 'cognizance' has
not been defined in the Code of Criminal Procedure
This Court had to therefore interpret this word. We
have adverted to that interpretation. In fact, we have
proceeded to answer this reference on the basis of
that interpretation and keeping in mind that special
connotation acquired by the word 'cognizance'. Once
that interpretation is accepted, Chapter XXXVI along
with the heading has to be understood in that light.
The rule of purposive construction can be applied in
such a situation. A purposive construction of an
Patna High Court CR. WJC No.887 of 2013
59/173
enactment is one which gives effect to the legislative
purpose by following the literal meaning of the
enactment where that meaning is in accordance with
the legislative purpose or by applying a strained
meaning where the literal meaning is not in
accordance with the legislative purpose (See: Francis
Bennion on Statutory Interpretation). After noticing
this definition given by Francis Bennion in National
Insurance Co. Ltd. v. Laxmi Narain Dhut : (2007) 3
SCC 700, this Court noted that more often than not,
literal interpretation of a statute or a provision of a
statute results in absurdity. Therefore, while
interpreting statutory provisions, the courts should
keep in mind the objectives or purpose for which
statute has been enacted. In light of this observation,
we are of the opinion that if in the instant case literal
interpretation appears to be in any way in conflict
with the legislative intent or is leading to absurdity,
purposive interpretation will have to be adopted.
42. In New India Assurance Co. Ltd. v. Nusli
Neville Wadia and Anr. etc. : (2008) 3 SCC 279 while
dealing with eviction proceedings initiated under the
Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 this Court was concerned with
interpretation of Sections 4 and 5 thereof. This Court
was of the view that literal meaning thereof would
place undue burden on the noticee and would lead to
conclusion that the landlord i.e. the State would not
be required to adduce any evidence at all. This Court
observed that such a construction would lead to an
anomalous situation. In the context of fairness in
State action this Court observed that with a view to
reading the provisions of the said Act, in a proper and
effective manner, literal interpretation which may
give rise to an anomaly or absurdity will have to be
avoided. This Court further observed that so as to
enable a superior court to interpret a statute in a
reasonable manner, the court must place itself in the
chair of a reasonable legislator. So done, the rules of
purposive construction will have to be resorted to
which would require the construction of the statute in
such a manner so as to see that it's object is fulfilled.
43. In this connection, we may also usefully refer
to the following paragraph from Justice G.P. Singh's
Patna High Court CR. WJC No.887 of 2013
60/173
'Principles of Statutory Interpretation' [13th edition -
2012].
"With the widening of the idea of context and
importance being given to the rule that the statute has
to be read as a whole in its context it is nowadays
misleading to draw a rigid distinction between literal
and purposive approaches. The difference between
purposive and literal constructions is in truth one of
degree only. The real distinction lies in the balance to
be struck in the particular case between literal
meaning of the words on the one hand and the
context and purpose of the measure in which they
appear on the other. When there is a potential clash,
the conventional English approach has been to give
decisive weight to the literal meaning but this
tradition is now weakening in favour of the purposive
approach for the pendulum has swung towards
purposive methods of constructions."
64. Furthermore, the Constitution Bench had
also occasion to consider the relevancy with regard to heading
of the Chapter and that has been explained under paragraph-38
which is as follows:-
"38. So far 'heading' of the chapter is concerned,
it is well settled that 'heading' or 'title' prefixed to
sections or group of sections have a limited role to
play in the construction of statutes. They may be
taken as very broad and general indicators or the
nature of the subject matter dealt with thereunder but
they do not control the meaning of the sections if the
meaning is otherwise ascertainable by reading the
section in proper perspective along with other
provisions. In Frick India Ltd. v. Union of India and
Ors. : (1990) 1 SCC 400, this Court has observed as
under:
"8. It is well settled that the headings prefixed
to sections or entries cannot control the plain words of
the provisions; they cannot also be referred to for the
purpose of construing the provision when the words
Patna High Court CR. WJC No.887 of 2013
61/173
used in the provision are clear and unambiguous; nor
can they be used for cutting down the plain meaning
of the words in the provision. Only, in the case of
ambiguity or doubt the heading or sub-heading may
be referred to as an aid in construing the provision but
even in such a case it could not be used for cutting
down the wide application of the clear words used in
the provision.
65. However, one should not lost sight of
Section3(9) of the General Clauses Act whereunder Chapter has
been defined as :- Chapter shall mean a chapter of the Act or
Regulation in which the word occurs. Further explaining the
object, it has been held to introduce brewing in the drafting of
Acts and Regulations, so that a provision of the Act or
Regulation referring to another Chapter of the same Act or
Regulation had not use the elaborate formula as per the Bihar &
Orissa General Clauses Act, 1917 as Section 4(10), it has been
defined as:-Chapter shall mean a chapter of the Act on which
the word occurs.
66. Law Lexicon also recognizes definition of
"Chapter" in a way as prescribed under Section 3(9) of the
General Clause Act.
As per Webster's 'chapter' means:-1. A
main division of a book, treaties, or the like; as,
genesis has fifty chapters. Hence, something
forming, or considered as, an integral or
independent part or series, as a subject, topic or
matter, an experience, of phase of anything etc.
Patna High Court CR. WJC No.887 of 2013
62/173
2. A regular meeting or assembly for business or
conference of the canons of a cathedral or
collegiate church, or of canonesses, monks,
members of an order etc, such meetings were
opened by the reading of a chapter, as of
scriptures. 3. A body or community of those who
hold a chapter, or an organized branch or body
of some society or fraternity; specif, the body of
canons of cathedral or collegiate church, who
are presided over by a dean.
Oxford:- 1. a separate section of a book,
usually with a number of title. 2. a period of
time in a person's life or in history, 3. All the
priests of a CATHEDRAL or members of a
religious community, 4. a local branch of a
society, a club etc,
As per Black's law dictionary, 'Chapter' denotes
United State's bankruptcy code.
67. In Hardeep Singh v. State of Punjab
reported in (2014) 3 SCC 92, the Constitution Bench had
occasion to propagate the law while interpreting the statute and
has held as follows:-
" 43. The court cannot proceed with an
assumption that the legislature enacting the
statute has committed a mistake and where the
language of the statute is plain and
unambiguous, the court cannot go behind the
language of the statute so as to add or subtract a
word playing the role of a political reformer or
of a wise counsel to the legislature. The court
has to proceed on the footing that the legislature
intended what it has said and even if there is
some defect in the phraseology etc., it is for
others than the court to remedy that defect. The
statute requires to be interpreted without doing
any violence to the language used therein. The
Patna High Court CR. WJC No.887 of 2013
63/173
court cannot re-write, recast or reframe the
legislation for the reason that it has no power to
legislate.
44. No word in a statute has to be construed
as surplusage. No word can be rendered
ineffective or purposeless. Courts are required
to carry out the legislative intent fully and
completely. While construing a provision, full
effect is to be given to the language used
therein, giving reference to the context and
other provisions of the Statute. By construction,
a provision should not be reduced to a "dead
letter" or "useless lumber". An interpretation
which renders a provision an otiose should be
avoided otherwise it would mean that in
enacting such a provision, the legislature was
involved in "an exercise in futility" and the
product came as a "purposeless piece" of
legislation and that the provision had been
enacted without any purpose and the entire
exercise to enact such a provision was "most
unwarranted besides being uncharitable." (Vide:
Patel Chunibhai Dajibha etc. v. Narayanrao
Khanderao Jambekar and Anr. : AIR 1965 SC
1457; The Martin Burn Ltd. v. The Corporation
of Calcutta : AIR 1966 SC 529; M.V. Elisabeth
and Ors. v. Harwan Investment and Trading Pvt.
Ltd. Hanoekar House, Swatontapeth, Vasco-De-
Gama, Goa : AIR 1993 SC 1014; Sultana
Begum v. Prem Chand Jain : AIR 1997 SC
1006; State of Bihar and Ors. etc. etc. v. Bihar
Distillery Ltd. etc. etc. : AIR 1997 SC 1511;
Institute of Chartered Accountants of India v.
Price Waterhouse and Anr. : AIR 1998 SC 74;
and The South Central Railway Employees Co-
operative Credit Society Employees Union,
Secundrabad v. The Registrar of Co-operative
Societies and Ors. : AIR 1998 SC 703).
45. This Court in Rohitash Kumar and Ors.
v. Om Prakash Sharma and Ors. : AIR 2013 SC
30, after placing reliance on various earlier
judgments of this Court held:
"27. The Court has to keep in mind the
fact that, while interpreting the provisions of a
Patna High Court CR. WJC No.887 of 2013
64/173
Statute, it can neither add, nor subtract even a
single word... A section is to be interpreted by
reading all of its parts together, and it is not
permissible, to omit any part thereof. The Court
cannot proceed with the assumption that the
legislature, while enacting the Statute has
committed a mistake; it must proceed on the
footing that the legislature intended what it has
said; even if there is some defect in the
phraseology used by it in framing the statute,
and it is not open to the court to add and amend,
or by construction, make up for the deficiencies,
which have been left in the Act......
28. The Statute is not to be construed in
light of certain notions that the legislature might
have had in mind, or what the legislature is
expected to have said, or what the legislature
might have done, or what the duty of the
legislature to have said or done was. The Courts
have to administer the law as they find it, and it
is not permissible for the Court to twist the clear
language of the enactment, in order to avoid any
real, or imaginary hardship which such literal
interpretation may cause.......
29. ... under the garb of interpreting the
provision, the Court does not have the power to
add or subtract even a single word, as it would
not amount to interpretation, but legislation.
68. Another important aspect to be recollected in
memory is preamble in a way to appreciate a statute. And for
that one has to see what is preamble.
As per texual aspect, as per Webster's
dictionary:- 1. An introductory portion; an
introduction or preface, as to a book,
document,etc; specif, the introductory part of a
statute, which states the reasons and intent of
the law or is used for other explanatory
purposes, as to recite facts knowledge of which
is necessary to an understanding of the law, to
Patna High Court CR. WJC No.887 of 2013
65/173
define or limit the meanings of words used in the
law, etc. It may explain ambiguity in the law, but
cannot modify the meaning of what is plain and
certain. 2. An introductory fact or circumstance;
a preliminary; esp., one that gives indication or
what is to follow; a presage.
As per Oxford :- An introduction to a book
or a written document;an introduction to sth you
say;
As per Black:- An introductory statement in
a constitution, statute, or other document
explaining the document's basis and objective;
esp., a statutory recital of the inconveniences for
which the statute is designed to provide a
remedy.
69. In State of UP v. Mahanth Kamal Puri
reported in AIR 1965 MP 183, it has been held:-
5. Having heard the counsel, I agree with the
opinion expressed by Shiv Dayal J. on the two
questions. The relevant Section 30 of the Gwalior
Act reads:
KISI PRASHTISHGAH AUR MAZHABI
WAQF KI NIGRANI-WA-INTEZAM KE LIYE
JO TAARIKHI HALAAT KE AITBAR SE YA
QADAMAT KI WAJAH SE MASH-HOOR HO
YA KISI NISBAT AGRAAJ AAMMA KE LIYE YA
KISI KHAAS WAJAH SE ZAROORI KHYAL
KIYA JAYE TO GOVERNMENT KO IKHTIYAR
HOGA KI EK SPECIAL COMMITTEE
MUQARRAR KARE YA YAH HUKUM SADIR
FARMAYE KI USKO SARKARI EHTEMAM
MEIN LIYA JAYE.
It is quite true that neither section 30 nor
any other section of the Gwalior Act expressly
provides for restoration of any temple and its
property the administration of which has been
taken over by the State. Even so, I am of opinion
that the language employed in the section must be
Patna High Court CR. WJC No.887 of 2013
66/173
construed in its appropriate setting and, if
necessary, limited to the object which the
legislature had in view. So, the meaning of the
words of a statute is found not so much in a
strictly grammatical construction or etymological
propriety of language, nor even in its popular use,
as in the subject or in the occasion in which they
are used, and the object to the attained. In order,
therefore, to come to a decision as to the true
meaning of a word used in a statute, one has to
enquire as to the subject matter of the enactment
and the object which the Legislature had in view.
Workmen of Dimakuchi Tea Estate v.
Management of Dimakuchi Tea Estate 1958 SCR
1156: (AIR 1958 SC 353) and State of Uttar
Pradesh v. C. Tobit, 1958 SCR 1275: (AIR 1958
SC 414). The preamble of a statute has been said
to be a good means of finding out its meaning
and, as it were, a key to the understanding of it; A.
Thangal Kunju Musaliar v. N. Venkitachalam
Potti (1955) 2 SCR 1196 : AIR 1956 SC 246).
Indeed, the preamble may now be regarded, like
the title, as part of the statute for the purpose of
explaining, restraining or even extending enacting
words, but not for the purpose of qualifying or
limiting express provisions couched in clear and
unambiguous terms: Halsbury's Laws of England,
2nd Edn., Vol. 31, Para 558 (p. 461). The
preamble of the Gwalior Act reads:
"Whereas it is expedient that places of
worship which are established or may be
established in future in Gwalior State are
maintained in a state which fulfils the object of
their founders and do not remain without worship
and the properties and assets which may have
been endowed for the aid, management and
maintenance of such places of worship, or which
may be so endowed in future may be administered
according to the desire of the donors and be
properly supervised, the Council of Regency, on
behalf of the Ruler, hereby enact as follows:......"
In my opinion, having regard to the object
of the Gwalior Act as indicated by its preamble,
Patna High Court CR. WJC No.887 of 2013
67/173
the appointment of a special committee or
chatmam (management) contemplated by Section
30, which does not by clear and unambiguous
language show that it was to be undertaken on a
permanent footing, is limited to the time required
for restoring proper management of a place of
worship and its properly necessary for fulfilling
the objects of the founder.
70. In A. Thangal Kunju Musaliar v. M.
Venkatachalam Potti, Authorized Official and Income Tax
Officer as reported in AIR 1956 SC 246, the constitution Bench
held:-
63. In order to ascertain the scope and
purpose of the impugned section reference must
first be made to the Act itself. The preamble of a
statute has been said to be a good means of
finding out its meaning and as it were a key to the
understanding of it. The preamble to the
Travancore Act XIV of 1124, like that of Act
XXX of 1947, runs thus : "Whereas it is expedient
for the purpose of ascertaining whether the actual
incidence of taxation on income is and has been in
recent years in accordance with the provisions of
law and the extent to which the existing law and
procedure for the assessment and recovery of such
taxation is adequate to prevent the evasion
thereof, to make provision for an investigation to
be made into such matters. It is hereby enacted as
follows". It does not unfortunately give any
assistance in the solution of the problem before
us.
64. Section 5(1) itself, however, gives some
indication as to the real object of it. The condition
on which the action of the Government under that
section is made dependent is that the Government
must have prima facie reasons for believing that a
person has to a substantial extent evaded payment
Patna High Court CR. WJC No.887 of 2013
68/173
of taxation on his income. The powers conferred
on the Commission by section 6 and the
procedure prescribed for the Commission by
section 7 are clearly very drastic and harsh. This
unmistakably shows that the legislative authority
took the view that these stringent measures were
necessary for unearthing the tax evasions which
had gone unnoticed before when the usual
procedure under the Income-tax law was applied.
Then comes section 8(2) which authorises the
Government after perusal of the report of the
Commission to direct proceedings to be taken
against the person to whose case the report relates
in respect of the income of any period
commencing after the 16th August, 1939. This
provision clearly evinces that the intention of the
legislative authority is to catch the income evaded
from after the 16th August 1939. Section 5(1) also
provides that the reference thereunder of a case
must be made at any time before the 16th
February, 1950. From these sections it will appear
that the object of this law was to uncover the
evasion of tax on income made after the 16th
August, 1939 and before the 16th February 1950
about the existence of which evasion the
Government had prima facie reason to believe.
65. The question at once arise as to why it
was that the legislative authority took the view
that there were possible cases of tax evasion. It
has been said that although the statement of the
objects and reasons appended to a bill is not
admissible as an aid to the construction of the Act
as passed (see Aswini Kumar Ghose's case
[1953]4SCR1 , yet it may be referred to only for
the limited purpose of ascertaining the conditions
prevailing at the time which necessitated the
making of the law (see Subodh Gopal Bose's case
[1954]1SCR587 . Similar observations were made
by Fazl Ali, J. with reference to legislative
proceedings being relevant for the proper
understanding of the circumstances under which
an Act was passed and the reasons which
necessitated in Chiranjit Lal Chowdhuri v. The
Union of India : [1950]1SCR869 . Indeed, in the
Patna High Court CR. WJC No.887 of 2013
69/173
case of Kathi Raning Rawat v. The State of
Saurashtra : 1952CriLJ805 , this Court permitted
the State to file an affidavit stating in detail the
circumstances which prevailed at the time when
the law there under consideration had been passed
and which necessitated the passing of that law. In
the present case also, an affidavit has been filed
by Gauri Shanker, Secretary of respondent 2,
stating the reasons why it was thought necessary
to enact the impugned Act including section 5(1).
This affidavit clearly brings out the serious
problem that faced the revenue authorities. A war
of unprecedented magnitude had raged from
September 1939 to 1946. The war conditions
brought in their train a sudden rise in the demand
of all kinds of goods, both consumer and
industrial, which, naturally pushed up the prices
to abnormal heights affording a great opportunity
to the producers, manufacturers and merchants to
reap huge profits. There was good reason to
believe that these abnormal profits were not being
brought into regular accounts but were being
concealed. Faced with this situation, means had to
be devised to enquire into the tax evasion and to
realise the legitimate dues of the State. If regard
be had to this background it is obvious that
section 5(1) had reference to a class of substantial
evaders of income-tax who required to be
specially treated under the drastic procedure
provided by Act XXX of 1947.
71. In "statutory interpretation" by Fransis
Bennian, at Section 246-The Preamble has been defined as
"The preamble is an optional feature in public general Acts,
though compulsory in private Acts. It appears immediately after
the long title, and States the reason for passing the Act. It may
include a recital of the mischief to which the Act is directed.
Patna High Court CR. WJC No.887 of 2013
70/173
When present, it is thus a useful guide to the legislative
intention.
72. The preamble may be used as a guide to
legislative intention. In Stoule/vs. Lord Zouch (1569), 353:- It
has been held:-
"A key to open the minds of the makers of the
Act, and the mischief which they intended to redress."
73. In due course of time, it has been explained
as it is an introduction to and in a sense a prefatory or
explanatory note in regard to the Sections which are as follows:
However, having a caution that the preamble should not be
allowed to contradict plain words in the body of an Act. The
preamble did not over-ride the plain words.
74. In Ganesha v. Sharanappa as reported in
2014 CrLJ 1146, the Hon'ble Apex Court had occasion to see
and analyze the two words being frequently used,
'complainant' as well as 'informant'. After critically
analyzing the same, it has been explained under para-12 which
are as follows:-
"12. Before we part with the case, we may
observe a common error creeping in many of the
judgments including the present one. No
distinction is made while using the words
'informant' and 'complainant'. In many of the
judgments, the person giving the report under
Patna High Court CR. WJC No.887 of 2013
71/173
Section 154 of the Code is described as the
'complainant' or the 'de facto complainant'
instead of 'informant', assuming that the State is
the complainant. These are not words of
literature. In a case registered under Section 154
of the Code, the State is the prosecutor and the
person whose information is the cause for
lodging the report is the informant. This is
obvious from Sub-section (2) of Section 154 of
the Code which, inter alia, provides for giving a
copy of the information to the 'informant' and
not to the 'complainant'. However the
complainant is the person who lodges the
complaint. The word 'complaint' is defined
under Section 2(d) of the Code to mean any
allegation made orally or in writing to a
Magistrate and the person who makes the
allegation is the complainant, which would be
evident from Section 200 of the Code, which
provides for examination of the complainant in a
complaint-case. Therefore, these words carry
different meanings and are not interchangeable.
In short, the person giving information, which
leads to lodging of the report under Section 154
of the Code is the informant and the person who
files the complaint is the complainant.
75. In this context, it looks appropriate to refer
though at the cost of repetition Section 36AD wherein
applicability of CrPC has been identified and to some extent
under Section 36A read with Section 32 to observe whether the
legislature has intended to confine the prosecution by way of
complaint petition only. When the aim and objective of the Act
has been taken into consideration, gradually, as is evident, not
only there happens to be expansion of its jurisdictional avenue
Patna High Court CR. WJC No.887 of 2013
72/173
rather severity of offence has also been categorized in
consonance with enhancement of punishment which has also
been enhanced gradually and the last amendment of 2008 is a
glaring example wherein the offences have been identified to be
cognizable and non bailable and further, apart from others, the
gravity of the offence has attracted constitution of Special
Court, which should be the court of sessions. As stated above,
the intention of the legislature is of paramount consideration
while interpreting a statue. That means to say, whenever an
offence has become cognizable and non-bailable, then in that
circumstance, whether drawing of prosecution only by way
complaint petition, appears to be contrary to spirit of law, more
particularly, when there has not been any kind of prohibition of
Section 190 CrPC read with Section 2, Section 32(3) as well as
Section 36AB (2) of the Act paving way.
76. Another situation is also to be perceived in
the background of the submission having been made on behalf
of learned respective counsels. Although, much emphasis has
been given with regard to power of the Inspector so enumerated
under Section 22 of the Act and further, the procedure to be
followed by the Inspector during course of inspection under
Section 23 of the Act, is quite distinguishable. Majority of the
Patna High Court CR. WJC No.887 of 2013
73/173
activities dealt with are the executive function and during
course of conduction of search and seizure as provided under
Section 22 of the Act, Sub-section-2 suggests that the
provisions whatsoever relating to search and seizure so
enumerated under the Code will be available to the Inspector
during course thereof, and further, as per Sub-Section 3, any
person violating or obstructing has been made liable for
prosecution prescribing sentence up to three years. As per
Section 23 of the Act, where the sample has been seized for the
purpose of test or analysis, the procedure is prescribed under
Sub-Rule-3 as well as 4, the one vial shall be sent to the
Government analyst for test or analysis, the second vial would
be produced before the Court where proceeding if any, is
instituted, the third vial is to be sent to the person properly
identifiable under Section 18A, that means to say, the
manufacturer and so, in the aforesaid background, it has been
argued that because of the fact that the aforesaid activities are to
be carried out by the Drug Inspector only without having access
to others, on account thereof, the Drug Inspector was only
competent enough to launch prosecution that too by way of
complaint petition.
77. At this very juncture, reference has also been
Patna High Court CR. WJC No.887 of 2013
74/173
relating to Section 25, Sub-clause-5 of the Act whereunder the
cost has been directed to be deposited by the complainant or
accused in case, the sample is to be sent to Central Drug
Laboratory on the request of either of them. In the aforesaid
background, it has emphatically been submitted that only
complaint has to be filed on account of due recognition of
complaint, and the Drug Inspector has to take care of, hence the
Drug Inspector is only competent to file prosecution by way of
complaint petition.
78. In its continuity, it has also been submitted
that wherever seizure has been allowed, at that very moment,
there only happens to be presence of the Drug Inspector and it
is he who will have to withdraw the seizure or in accordance
with Sub-Section-B of the Sub-Section 5 of Section 23, he is
the person who has to inform the judicial Magistrate for having
necessary order relating to custody. The same could be only if
the status of Drug Inspector is kept immuned and further, his
activity is secured in accordance with the Act. Consequent
thereupon, it could definitely be inferred that the statute only
recognizes the Drug Inspector and further, he is the person who
has to manage all the events including that of getting the
sample examined by the State Analyst as well as Central
Patna High Court CR. WJC No.887 of 2013
75/173
Laboratory. Therefore, it could not be perceived contrary to the
spirit of law that mere acknowledging the offence cognizable
and non-bailable, automatically there could be presence of
police by way of registering as well as investigating a case
under the Act.
79. The aforesaid problem is found duly
answered from plain reading of the Act itself. Section 32 not
only identifies the Inspector to be the sole authority for
prosecution rather apart from Inspector, the Gazetted Officer of
the Central Government or the State Government so authorized
by general or special order, the person aggrieved, a recognized
consumer association has also been properly identified and, for
rest of three categories, there happens to be no specific
procedure so prescribed save and except under Section 26, a
special procedure away from procedure so prescribed under
Section 22, 23, as well as 25 allowing the person (purchaser) or
any recognized consumer, on an application as well as deposit
of prescribed fee would be entitled to get the medicine/cosmetic
examined and for that, there happens to be no condition
precedent that order should be from the judicial magistrate that
too, after institution of a complaint case only. Although, Sub-
Section-4 of Section 25 may be available after institution of the
Patna High Court CR. WJC No.887 of 2013
76/173
case. That means to say, any steps having at the end of any
person including that of association has got such kind of liberty,
then in that circumstance, whether it could be perceived that for
getting sample examined in accordance with Section 26, a
complaint case has to be pending since before.
80. This aspect has also to be seen through
another angle. As per Section 32, a Gazetted Officer so
delegated by the Central Government or by the State
Government is also entitled to file prosecution but, so far his
activity is concerned, neither they have got their presence under
Section 22 or Section 23. Not only this, when another Section
relating to compounding of offence as prescribed under Section
32B of the Act is gone through, it is apparent that the Drug
Inspector has got no presence instead thereof, it has specifically
been laid down that the Central Government or the State
Government may authorize in this behalf any official on
payment for credit to that Government of such sum so
prescribed would compromise.
81. Presence of Gazetted Central or State
Government has been introduced by 2008 amendment wherein
presence of police was also, which the legislature did not
approved. Does it mean that police has been deprived of to have
Patna High Court CR. WJC No.887 of 2013
77/173
its presence. Whether presence of Gazetted Central or State
Government completely excludes presence of police, whether
police cadre is found desolate with Gazetted official, whether
Central or State Government is handicapped to delegate such
power to police official, being that of Gazetted one. And the
plain answer is in negative. There happens to be no
barrier/restriction introduced by the legislature on that score.
The same has got much more relevancy after going through
Section 23(3), (4), (5) read with Section 25 recognizing the
activities of inspector, Section 26 prescribing the methods for
consumer as well as consumer association, but so far steps to be
taken by the Gazetted officials having been delegated power by
the Central or State Government is concerned (as the case may
be) no procedure has been prescribed. Then in that
circumstance, when relevant procedure is searched out, the only
legal remedy is found through institution of case before police.
It is further to be seen through another angle. All the activities
whatever been, in case of complaint, will have to be after
process of Section 190 CrPC is exhausted, so be the position
with regard to police case. Before Section 190, in case, the
Inspector is to send the sample for test in likewise manner,
police during course of investigation also follow, does follow in
Patna High Court CR. WJC No.887 of 2013
78/173
so many cases apart from notice been followed under the Cr.PC
itself. Therefore, whatever been the qualification of the
inspector, that has got no relevancy or of use so far procedure
for prosecution is concerned.
82. The word 'prosecution' is neither defined
under the Code nor under the Act. Therefore, it could be seen in
plausible way, that means to say, literal meaning as explained
under relevant dictionary as well as how by way of judicial
interpretation. Prosecution as defined in Black Law Dictionary:
" commencement carrying out any action or scheme,
commencement carrying out a criminal proceeding in which
accused person is tried". As per Advanced Law Lexicon (P.
Ramanath Aiyar), the 'prosecution' has different meaning such
in relation to a course of study, includes promotion from one
part or stage or the course of study to another part or stage or
the course of study. As per Halsbury, 4 th Edn. Vol-11 page 68, "
In the absence of statutory provisions to the contrary any person
may of his own initiative, and without any preliminary consent,
institute criminal proceedings with a view to an indictment.
"Prosecution is the institution or commencement
of a criminal proceeding the process of exhibiting formal
charges against an offender before a legal tribunal, and pursuing
Patna High Court CR. WJC No.887 of 2013
79/173
them to final judgment on behalf of the state or government or
by indictment or information. A prosecution exists until
terminated in the final judgment of the Court, to wit, the
sentence, discharge or acquittal.
The institution and carrying on of the legal
proceeding against a person the party by whom criminal
proceedings are instituted or conducted; the act of prosecuting
in any sense.
The word "prosecution" includes such civil
actions as may be the subject of a suit for malicious
prosecution.
In its wider sense prosecution means a
proceeding by way of indictment or information, and is not
necessarily confined to prosecution for an offence.
The term 'prosecution' implies every prosecution
for an offence, whether it is initiated on a private complaint or a
police report.
The word 'prosecution' in Art. 20(2)
Constitution of India means judicial proceedings before a Court
or a legal tribunal. It cannot have reference to departmental or
disciplinary proceedings taken for inflicting departmental
penalty or punishment on an officer belonging to the
Patna High Court CR. WJC No.887 of 2013
80/173
department for any misconduct.
83. In Thomas Dana v. State of Punjab
reported in 1959 Supp (1) SCR 274 where the plea of double
jeopardy was subject to consideration, the word 'prosecution'
has elaborately been dealt with and for better appreciation the
relevant para is quoted below:-
"10. It is, therefore, necessary first to consider
whether the petitioners had really been prosecuted
before the Collector or Customs, within the meaning
of Article 20(2). To "prosecute", in the special sense
of law, means, according to Webster's Dictionary, "(a)
to seek to obtain, enforce, or the like, by legal
process; as, to prosecute a right or a claim in a court
of law. (b) to pursue (a person) by legal proceedings
for redress or punishment; to proceed against
judicially; esp., to accused of some crime or breach of
law, or to pursue for redress or punishment of a crime
or violation of law, in due legal form before a legal
tribunal; as, to prosecute a man for trespass, or for a
riot." According to Wharton's Law Lexicon, 14th edn.,
p. 810, " prosecution" means " a proceeding either by
way of indictment or information, in the criminal
courts, in order to put an offender upon his trial. In all
criminal prosecutions the Kind is nominally the
prosecutor". This very question was discussed by this
Court in the case of Maqbool Hussain v. State of
Bombay with reference to the context in which the
word "prosecution" occurred in Article 20. In the
course of the judgment, the following observations,
which apply with full force to the present case, were
made;
".... and the prosecution in this context would
mean an initiation or starting of proceedings of a
criminal nature before a court of law or a judicial
tribunal in accordance with the procedure prescribed
in the statute which creates the offence and regulates
the procedure".
In that case, this Court discussed in detail the
Patna High Court CR. WJC No.887 of 2013
81/173
provisions of the Sea Customs Act, with particular
reference to Chapter XVI, headed "Offences and
Penalties". After examining those provisions, this
Court came to the following conclusion;
"We are of the opinion that the Sea Customs
Authorities are not a judicial tribunal and the
adjudging of confiscation, increased rate of duty or
penalty under the provisions of the Sea Customs Act
do not constitute a judgment or order of a court or
judicial tribunal necessary for the purpose of
supporting a plea of double jeopardy".
84. In S. A. Venkataraman v. Union of India
reported in 1954 CrLJ 993, the Constitution Bench while
dealing with prospect of double jeopardy under earlier
pronouncement in Maqbool Hussain v. State of Bombay as
reported in AIR 1953 SC 325 has held as follows:-
15. It may be pointed out that the words
"prosecution" and "punishment" have no fixed
connotation and they are susceptible of both a
wider and a narrower meaning; but in Article 20
(2) both these words have been used with
reference to an "offence" and the word "offence"
has been taken in the sense in which it is used in
General Clauses Act as meaning " an act or
omission made punishable by any law for the
time being in force." It follows that the
prosecution must be in reference to the law
which creates the offence & the punishment must
also be in accordance with what that law
prescribes".
85. In Army Headquarters v. CBI reported in
(2012) 5 SCC 228, it has been held as follows:-
"28. The 'prosecution' means a criminal
Patna High Court CR. WJC No.887 of 2013
82/173
action before the court of law for the purpose of
determining 'guilt' or 'innocence' of a person
charged with a crime. Civil suit refers to a civil
action instituted before a court of law for
realisation of a right vested in a party by law."
29 *****
30 *****
31 *****
32 *****
33 *****
34 *****
35 *****
36 *****
37 *****
38 *****
39. In Jamuna Singh and Ors. v. Bhadai
Shah : AIR 1964 SC 1541, this Court dealt with
the expression 'institution of a case' and held that
a case can be said to be instituted in a court only
when the court takes cognizance of the offence
alleged therein. Section 190(1) Code of Criminal
Procedure. contains the provision for taking
cognizance of offence (s) by Magistrate. Section
193 Code of Criminal Procedure. provides for
cognizance of offence (s) being taken by courts
of Sessions on commitment to it by a Magistrate
duly empowered in that behalf. This view has
been reiterated, approved and followed by this
Court in Satyavir Singh Rathi, ACP and Ors. v.
State through CBI (2011) 6 SCC 1.
40. *****
41. Thus, in view of the above, it is evident
that the expression "Institution" has to be
understood in the context of the scheme of the
Act applicable in a particular case. So far as the
criminal proceedings are concerned,
"Institution" does not mean filing; presenting or
initiating the proceedings, rather it means taking
cognizance as per the provisions contained in
the Code of Criminal Procedure.
42. *****
43. *****
44. There is a marked distinction in the
Patna High Court CR. WJC No.887 of 2013
83/173
stage of investigation and prosecution. The
prosecution starts when the cognizance of
offence is taken. It is also to be kept in mind that
the cognizance is taken of the offence and not of
the offender. The sanction of the appropriate
authority is necessary to protect a public servant
from unnecessary harassment or prosecution.
Such a protection is necessary as an assurance to
an honest and sincere officer to perform his
public duty honestly and to the best of his
ability. The threat of prosecution demoralises the
honest officer.
86. In Jamuna Singh v. Bhadai Shah as
reported in AIR 1964 SC 1541, it has been held as follows:-
"6. The Code does not contain any definition of
the words "institution of a case". It is clear however
and indeed not disputed, that a case can be said to be
instituted in a court only when the court taken
cognizance of the offence alleged therein. Section
190(1) of the Code of Criminal Procedure contains
the provision for cognizance of offences by
Magistrates. It provides for three ways in which such
cognizance can be taken. The first is on receiving a
complaint of facts which constitute such offence; the
second is on a report in writing of such facts - that is,
facts constituting the offence - made by any police
officer; the third is upon information received from
any person other than a police officer or upon the
Magistrate's own knowledge or suspicion that such
offence has been committed. Section 193 provides for
cognizance of offences being taken by courts of
sessions on commitment to it by a Magistrate duly
empowered in that behalf. Section 194 provides for
cognizance being taken by the High Court of offences
upon a commitment made to it in the manner
provided in the Code.
7. An examination of these provisions makes it
clear that when a Magistrate takes cognizance of an
offence upon receiving a complaint of facts which
constitute such offence, a case is instituted in the
Patna High Court CR. WJC No.887 of 2013
84/173
Magistrate's Court and such a case is one instituted
on a complaint. Again, when a Magistrate takes
cognizance of any offence upon a report in writing of
such facts made by any police officer it is a case
instituted in the Magistrate's court on a police report."
87. In Superintendent and Remembrancer of
Legal Affairs, West Bengal v. Mahendra Singh reported in
1979 CrLJ 545, it has been held as follows:-
"7. Mr. Roy. the learned Advocate
appearing for the accused respondent in support
of the judgment has referred before us to a
decision of the Supreme Court in the case of
Maqbool Hussain v. State of Bombay reported in
AIR 1953 SC 325 wherein "prosecution" has
been defined to mean an initiation or starting of
proceedings of a criminal nature before a Court
of law or a judicial tribunal in accordance with
the procedure prescribed in the statute which
creates the offence and regulates the procedure.
The above decision, in our view, instead of
supporting the observations of the learned trial
Judge goes against the same. We are of the view
that the institution of a "prosecution" where a
case is started by the Police can be by
submission of a report in final form in
accordance with Section 173 of the Cr.P.C. 1898
and not before that. We need not dilate on or
delve into the matter further as the point is no
more res integra, so far as our Court is concerned
in view of the Bench decisions in the cases of
Ismail Khan v. Emperor (AIR 1927 Cal 721 : 28
Cri LJ 817, Emperor v. Pritam Singh : 48 Cri LJ
668 and Panchu Gopal Ghose v. King (AIR 1955
NUC (Cal) 546). The sanction that was accorded
in the present case before submission of the
charge-sheet therefore was a valid sanction and
the Court ought to have acted on such sanction.
Patna High Court CR. WJC No.887 of 2013
85/173
88. In State, CBI v. Sashi Balasubramanian as
reported in (2006) 13 SCC 252, it has been held as follows:-
"29. It is in the aforementioned context,
interpretation of the word -prosecution- assumes
significance. The term 'prosecution' would
include institution or commencement of a
criminal proceeding. It may include also an
inquiry or investigation. The terms 'prosecution'
and 'cognizance' are not interchangeable. They
carry different meanings. Different statutes
provide for grant of sanction at different stages.
30. 'In initio' means in the beginning. The
dictionary meaning of 'initiation' is cause to
begin. Whereas some statutes provide for grant
of sanction before a prosecution is initiated,
some others postulate grant of sanction before a
cognizance is taken by Court. However,
meaning of the word may vary from case to
case. In its wider sense, the prosecution means a
proceeding by way of indictment or
information, and is not necessarily confined to
prosecution for an offence.
31. The term 'prosecution has been
instituted' would not mean when charge-sheet
has been filed and cognizance has been taken. It
must be given its ordinary meaning.
32. *****
33. ****
34. ****
35.****
36. Institution of a prosecution and
institution of a complaint case in a criminal
court stand on different footings. Whereas
summons to an accused in a complaint case can
be issued only upon taking cognizance of the
offence, the same would not mean in a case
where first information report has been lodged
resulting in initiation of investigation or where
it has been referred to police or other authorities
for enquiry; even then a prosecution may not be
held to have been initiated at that stage."
Patna High Court CR. WJC No.887 of 2013
86/173
89. Recently, in Southern Motors v. State of
Karnataka as reported in (2017) 3 SCC 467, it has been held as
follows:-
"34. In the same vein, the following
passage from M/s. Doypack Systems Pvt. Ltd. v.
Union of India and Ors.: (1988) 2 SCC 299 was
adverted to: State of Jharkhand v. Tatal Steel
Ltd., (2016) 11 SCC 147
" 24 58. The words in the statute
must, prima facie, be given their ordinary
meanings. Where the grammatical construction
is clear and manifest and without doubt, that
construction ought to prevail unless there are
some strong and obvious reasons to the contrary.
Nothing has been shown to warrant that literal
construction should not be given effect to. See
Chandavarkar S.R. Rao v. Ashalata : (1986) 4
SCC 447 approving 44 Halsbury's Laws of
England, 4th Edn., para 856 at page 552, Nokes
v. Doncaster Amalgamated Collieries Limited
1940 AC 1014. It must be emphasised that
interpretation must be in consonance with the
Directive Principles of State Policy in Article
39(b) and (c) of the Constitution.
59. It has to be reiterated that the
object of interpretation of a statute is to discover
the intention of the Parliament as expressed in
the Act. The dominant purpose in construing a
statute is to ascertain the intention of the
legislature as expressed in the statute,
considering it as a whole and in its context. That
intention, and therefore the meaning of the
statute, is primarily to be sought in the words
used in the statute itself, which must, if they are
plain and unambiguous, be applied as they
stand....
35. The following excerpts from Tata
Steel Ltd. (supra), being of formidable
significance are also extracted as hereunder.
"25. In this regard, reference to
Patna High Court CR. WJC No.887 of 2013
87/173
Mahadeo Prasad Bais (Dead) v. Income-Tax
Officer 'A' Ward, Gorakhpur and Anr. : (1991) 4
SCC 560 would be absolutely seemly. In the
said case, it has been held that an interpretation
which will result in an anomaly or absurdity
should be avoided and where literal construction
creates an anomaly, absurdity and
discrimination, statute should be liberally
construed even slightly straining the language so
as to avoid the meaningless anomaly. Emphasis
has been laid on the principle that if an
interpretation leads to absurdity, it is the duty of
the court to avoid the same.
26. In Oxford University Press v.
Commissioner of Income Tax : (2001) 3 SCC
359, Mohapatra, J. has opined that interpretation
should serve the intent and purpose of the
statutory provision. In that context, the learned
Judge has referred to the authority in State of
T.N. v. Kodaikanal Motor Union (P) Ltd. :
(1986) 3 SCC 91 wherein this Court after
referring to K.P. Varghese v. ITO : (1981) 4 SCC
173 and Luke v. IRC (1964) 54 ITR 692 has
observed: (Oxford University Press Case
(2001)3 SCC 359)
33...... "17. The courts must
always seek to find out the intention of the
legislature. Though the courts must find out the
intention of the statute from the language used,
but language more often than not is an imperfect
instrument of expression of human thought. As
Lord Denning said it would be idle to expect
every statutory provision to be drafted with
divine prescience and perfect clarity. As Judge
learned Hand said, we must not make a fortress
out of dictionary but remember that statutes
must have some purpose or object, whose
imaginative discovery is judicial craftsmanship.
We need not always cling to literalness and
should seek to endeavour to avoid an unjust or
absurd result. We should not make a mockery of
legislation. To make sense out of an unhappily
worded provision, where the purpose is apparent
to the judicial eye 'some' violence to language is
Patna High Court CR. WJC No.887 of 2013
88/173
permissible.(Kodaikanal Motor Union Case
(1986) 3 SCC 91)
27. Sabharwal, J. (as His Lordship
then was) has observed thus: (Oxford University
Press Case (2001)3 SCC 359)
'58. ...It is well-recognised Rule of
construction that a statutory provision must be
so construed, if possible, that absurdity and
mischief may be avoided. It was held that
construction suggested on behalf of the Revenue
would lead to a wholly unreasonable result
which could never have been intended by the
legislature. It was said that the literalness in the
interpretation of Section 52(2) must be
eschewed and the court should try to arrive at an
interpretation which avoids the absurdity and the
mischief and makes the provision rational,
sensible, unless of course, the hands of the court
are tied and it cannot find any escape from the
tyranny of literal interpretation. It is said that it
is now well-settled Rule of construction that
where the plain literal interpretation of a
statutory provision produces a manifestly absurd
and unjust result which could never have been
intended by the legislature, the court may
modify the language used by the legislature or
even "do some violence" to it, so as to achieve
the obvious intention of the legislature and
produce a rational construction. In such a case
the court may read into the statutory provision a
condition which, though not expressed, is
implicit in construing the basic assumption
underlying the statutory provision....
36. As would be overwhelmingly
pellucid from hereinabove, though words in a
statute must, to start with, be extended their
ordinary meanings, but if the literal construction
thereof results in anomaly or absurdity, the
courts must seek to find out the underlying
intention of the legislature and in the said
pursuit, can within permissible limits strain the
language so as to avoid such unintended
mischief.
Patna High Court CR. WJC No.887 of 2013
89/173
37. In Seaford Court Estates Ltd. v.
Asher [1949] 2 All ER 155 (CA) hallowed by
time, outlining the duty of the Court to iron out
the creases, it was enunciated, that whenever a
statute comes up for consideration, it must be
remembered that it is not within human powers
to foresee the manifold sets of facts which may
arise and even if it were, it is not possible to
provide for them in terms free from all
ambiguity, the caveat being that the English
language is not an instrument of mathematical
precision. It was held that in an eventuality
where a Judge, believing himself to be fettered
by the supposed Rule that he must look to the
language and nothing else, laments that the
draftsmen have not provided for this or that or
have been guilty of some or other ambiguity, he
ought to set to work on the constructive task of
finding the intention of the Parliament and that
he must do this not only from the language of
the statute, but also from a consideration of the
social conditions which gave rise to it and of the
mischief which it was passed to remedy and then
he must supplement the written word so as to
give "force and life" to the intention of the
legislature.
90. Again reverting back, it is evident that
before 2008 amendment, the fact did not identify the word
cognizable, non bailable, nor constitution of Special Court, to
be the gist of lessons. While introducing the Bill, the purpose
was to punish the anti-social elements indulged in
manufacturing, sale of spurious, adulterated medicine,
ultimately costing life (as per report submitted) with stringent
sentence, as the prevailing sentence, was found inadequate and
Patna High Court CR. WJC No.887 of 2013
90/173
for that Special Court has also been identified. Furthermore,
clandestine activities in an organized way by the manufacturer
as well as the seller in manufacturing adulterated, spurious
medicine required proper cause of investigation so that the
guilty should be punished. For better appreciation, the same is
quoted below:-
"Amendment Act 26 of 2008-- Statement of
Objects and Reasons.-- The Drugs and Cosmetics
Act, 1940 is a consumer protection legislation, which
is mainly concerned with the standards and quality of
drugs manufactures in this country and control of the
import, manufacture, sale and distribution of drugs
and cosmetics.
2. There have been widespread reports regarding
the easy movement and harmful consequences of
adulterated and spurious drugs in the country and
wide ranging national concern has been expressed on
these reports. The issue of adulterated or spurious
drugs has serious dimentions because it involves
medicinal use and can lead to serious and even fatal
injury. There is also loss of revenue to the
Government due to the manufacture and sale of
adulterated or spurious drugs.
3. Drugs and Cosmetics Act, 1940 was amended
in 1982 so as to impose more stringent penalties on
the anti-social elements indulging in the manufacture
or sale of adulterated or spurious drugs or drugs not
of standard quality which are likely to cause death or
grievous hurt to the user. However, the penalties
existing in the said Act are not found effective. One
of the reasons for the existing penalties not being
effective is that manufacture and sale of adulterated
and spurious drugs is primarily clandestine activity
which is showing increasing involvement of
organized crime in recent years. Besides, offenders
often obtain bail as the offences are non-cognizable
and bailable under the existing provisions of the Act.
The offenders remain on bail due to delay in disposal
Patna High Court CR. WJC No.887 of 2013
91/173
of cases for manufacture and sale of adulterated and
spurious drugs. Many cases for violation are detected
and investigated by the police who needs to be
conferred upon the power to prosecute such cases
promptly.
4. The Central Government constituted an
Expert Committee under the chairmanship of Dr.
R.A.Mashelkar, Director General of Council of
Scientific and Industrial Research in January, 2003 to
undertake a comprehensive examination of drugs
regulatory issues, including the problem of spurious
drugs, evaluate the extent of the problem of spurious
or substandard drugs and recommend measures
required to deal with the problem effectively. The
Committee, inter alia, recommended for
enhancement of penalties, designation of Special
Court for speedy trial of spurious drugs cases, making
offences relating to spurious drugs cognizable and
non-bailable, authorizing the police to file
prosecution for offences related to spurious drugs and
compounding of offences, etc. A Bill to amend the
Drugs and Cosmetics Act, 1940 broadly to give effect
to the recommendations of the aforesaid Committee
was introduced on the 22nd Decemter, 2003 in Lok
Sabha and the Bill lapsed due to dissolution of Lok
Sabha. The Central Government, inter alia, proposes
to make the make the following amendments in the
Drugs and Cosmetics Act, 1940, broadly on the lines
of the earlier Bill introduced with certain
modifications which relate to enhancement of
punishment and oing away with the death penalty as
proposed in the sail Bill, namely;--
(I) The existing provisions contained in section
27 of the aforesaid Act, inter alia, provide for sacle of
punishment for the first offence in respect of
adulterated or spurious drugs. Clause (a) of section 27
of the aforesaid Act, provides for imprisonment for
not less than five years which may extend to life and
with fine of not less than rupees ten thousand for the
manufacture and sale of adulterated or spurious drugs
or drugs not of standard quality which are likely to
cause death of the patients or harm on the patient's
body as would amend to grievous hurt. It is proposed
to enhance the period of imprisonment for a term
Patna High Court CR. WJC No.887 of 2013
92/173
which shall not be less than ten years but which may
extend to imprisonment for life and shall also be
liable to fine of ten lakh rupees or three times the
value of the drugs confiscated, whichever is more.
(ii) It is also proposed to insert two provisions in
the said clause (a) as to provide that the fine imposed
on the convicted person and realized from him under
the said clause shall be paid to the person who used
such adulterated or spurious drugs and in case of his
death, to his relative;
(iii) Clause (b) of said section 27 provides for
punishment of imprisonment for not less than one
year which may extend to three years and fine of not
less than rupees five thousand for manufacture and
sale of any adulterated rug ( not being a drug referred
to in section 17-A) or manufacture and sale of drugs
without a valid license. It is proposed to enhance the
said punishment of imprisonment being not less than
three years but may extend to five years and with fine
which shall not be less than one lakh rupees;
(iv) Clause (c) of aforesaid section 27 provides
for punishment of imprisonment for not less than one
year which may extend to three years but which may
extend to five years and with fine which shall not be
less than rupees five thousand for manufacture and
sale of any spurious drug (not being a drug referred to
in section 17-B). It is proposed to enhance the said
punishment of imprisonment being not less than
seven years but which may extend to imprisonment
for life and with fine which shall be three lakh rupees
or three times the value of the drugs seized,
whichever is more.
(v) Clause (d) of aforesaid section 27 provides
for punishment of imprisonment for a term which
shall not be less than one years but which may extend
to two yeasrs and with fine. It is proposed to provide
that the fine shall not be less than twenty thousand
rupees;
(vi) It is also proposed to provide for a fine of
not less than twenty thousand rupees under section 28
for non-disclosure of the name of the manufacturer
and under section 28-A for not keeping documents,
etc, and for non-disclosure of information;
(vii) It is also proposed to enhance punishment
Patna High Court CR. WJC No.887 of 2013
93/173
specified under section 30 for subsequent offences.
Clause (a) of said section 30 provides for punishment
for imprisonment not less than two years which may
extend to six yeas and with fine of not less than
rupees ten thousand for manufacture and sale of any
adulterated drug or manufacture and sale of drugs
without a valid license. It is proposed to enhance the
said punishment which shall not be less than seven
years but which may extend to ten years and with fine
which shall not be less than two lakh rupees. Clause
(b) of aforesaid section 30 provides for punishment
for imprisonment for not less six years which may
extend to ten years and with fine of not less than
rupees ten thousand for manufacture and sale of a
spurious drug. It is proposed to enhance the
punishment of imprisonment which shall not be less
than ten years but which may extend to imprisonment
for life and with fine which shall not be less than
three lakh rupees;
(viii) It is also proposed to designate one or
more Court of Session as Special Court for trial of
offences releated to adulterated or spurious drugs;
(ix) It is also proposed to make offences rleating
to adulterated or spurious drugs as cognizable and
non-bailable in certain cases;
(x) It is also proposed to confer powers upon the
police officers not below the rank of sub-inspector of
police and other officers of the Central Government
or State Government authorized by it to institute the
prosecution under the aforesaid Act;
(xi) It is also proposed to provide compounding
of certain offences not being an offence punishable
with imprisonment only or with imprisonment and
also with fine.
91. Thus, it has become abundantly clear that
while interpreting a statute, the object and intention of the
legislature has to be taken into consideration and unless and
until there happens to be ambiguity, the court should seize its
Patna High Court CR. WJC No.887 of 2013
94/173
prescenium and interpret it according to its own wisdom
contrary to the aim and object of the legislature.
92. Apart from this, it has also become clear that
prosecution does not confine to filing of the complaint petition
only. In the background of the fact that like any other law such
as NI Act (Section 142), Transplantation of Human Organs and
Tissues Act (Section 20), Wild Life Protection Act (Section 25),
Environment Protection Act, (Section 19), Electricity Act
(Section 151) and others whereunder prosecution by way of
complaint is only permissible did speak so barricading other
kind of prosecution but so far present case is concerned, no
such enactment/averment is there. Apart from this, whenever
any offence being identified as cognizable, non bailable even
then would not allow the police action, more particularly in
view of direction so given by the Apex Court in Lalita v. State
of UP (Supra), even to the extent non cognizable as registration
is not forbidden, rather investigation is.
93. The fragrance of such interpretation is
further found from the case of Maharashtra Antibiotics &
Pharmaceuticals Ltd v. Democratic Youth Federation of India &
Ors reported in (2005) 12 SCC 162 wherein the High Court,
under the Public Interest Litigation directed the investigation of
Patna High Court CR. WJC No.887 of 2013
95/173
a case registered under Drugs and Cosmetics Act, 1940 to be
conducted by the Central Vigilance Commission and for that,
transferred the investigation from the State Police as well as
CBI which was raised before the Apex Court wherein the
Central Vigilance Commission has intimated that they have got
no necessary infrastructure to carry out the investigation and in
the aforesaid background, the Apex Court observed under para-
3 as well as 4 as follows:-
"3. Therefore, we direct the investigation of
the case under the Drugs and Cosmetics Act,
1940 that is being conducted by the State Police
as well as the investigation of the case under
Prevention of Corruption Act shall now be
conducted by CBI under the supervision of
Central Vigilance Commission.
4. We direct CBI to conclude the
investigation and file a report within six months
from today."
94. In State of Maharashtra v. Devahari
Devasingh Pawar reported in (2008)2 SCC 540 wherein a
criminal case was instituted which was investigated and charge-
sheet was submitted under different Sections on account of
supply of HIV contaminated blood. Side by side, the Drug
Inspector also filed a complaint case separately and
independently under Drugs and Cosmetics Act, 1940 and as is
evident, both the cases were amalgamated and in terms thereof,
Patna High Court CR. WJC No.887 of 2013
96/173
police case proceeded. Subsequent thereof, as the witness was
not produced, sanction was not on the record in accordance
with Section 197 CrPC, the Magistrate had dropped the
proceeding which was set aside in revision by the Sessions
judge which was also set aside by the High Court against which
the matter had gone to the Supreme Court and after discussing
the same, under para-16, it has been concluded as follows:-
"16. As shown above, a substantial part of
cases against the accused does not require any
sanction for their prosecution. The facts of the
case do not warrant any piecemeal quashing or
discharge of the accused. We, therefore, consider
it appropriate and just that the trial of the accused
should be allowed to proceed without any
hindrance. After the evidence of two the sides are
led, the trial court will be in a better position to
judge whether or not any offences are made out
under the Drugs Act and; whether or not any
offences, if are made out, could be said to have
been committed by the accused in discharge of
their official duties and whether or not any
sanction of the State Government was required
for their prosecution for those offences and what
would be the effect of non-production of
sanction by the prosecution. The question of
sanction for prosecution under the Drugs Act is
thus left open to be decided by the trial court at
the end of the trial. In the result, the order of the
High Court coming under appeal is set-aside and
the matter is remitted to the trial court with the
aforesaid directions and observations. In the
result, this appeal stands allowed.
95. The Constitution Bench had an occasion to
examine in Chimanlal Jagjivandas Sheth v. State of
Patna High Court CR. WJC No.887 of 2013
97/173
Maharashtra reported in AIR 1963 SC 665. The facts of the
case as is evident from para-2, is drawing of a criminal
proceeding on account of sub-standard quality of drug found on
raid conducted by police accompanied by Drug Inspector.
During consideration, it has been observed as follows:-
".......The Legislature designedly extended
the definition of "drug" so as to take in
substances which are necessary aids for treating
surgical or other cases. The main object of the
Act is to prevent sub-standards in drugs,
presumably for maintaining high standards of
medical treatment. That would certainly be
defeated if the necessary concomitants of
medical or surgical treatment were allowed to be
diluted: the very same evil which the Act intends
to eradicate would continue to subsist..... .
96. Keeping the aforesaid principle in mind,
now the questionnaire so formulated by the Division Bench has
to be answered. (a) After going through Section 36, 36A, 36AB,
36AC, 36AD, 36AE, it is crystal clear that there happens to be
no impediment so prescribed under the CrPC, more particularly,
is found properly answered on a plain reading of the same as
the committal proceeding has to be taken up in accordance with
Section 209 of the CrPC that too only after taking of
cognizance under Section 190 CrPC irrespective of application
of other penal provisions under garbs of Section 2 of the Act
and is accordingly, answered that the Magistrate would while
Patna High Court CR. WJC No.887 of 2013
98/173
exercising power under Section 190 CrPC is competent enough
to take cognizance of an offence, apart from others, including
under Drugs and Cosmetics Act.
97. So far points no.(b) and (d) are concerned, it
is needless to say that irrespective of nature of the offence,
being non cog or cog, the prosecution could not be confined by
way of filing of the complaint petition only rather, considering
the intent of the legislature, the spirit of the law, it could be on a
complaint petition as well as on police report.
98. Point no.(c). In the aforesaid background,
the principle so decided in CrWJC No. 719/1998 along with
Cr.Misc. No. 808/1998 and also Cr.Misc. No. 50246/2006 are
hereby, over ruled.
99. All the points have been answered. Let the
matter be returned back to the learned Single judge to decide
the issue in accordance with law.
Per:- Hon'ble Mr Justice Birendra Kumar
100. I have carefully gone through the elaborate and elucidate judgment rendered by Hon'ble Mr. Justice Aditya Kumar Trivedi. I regret to find myself unable to agree with the views expressed by his Lordships for the reasons mentioned hereinbelow:
Patna High Court CR. WJC No.887 of 2013 99/173
101. A Division Bench of this Court, in Bablu @ Rajesh Kumar Vs. The State of Bihar and Ors vide Cr.W.J.C.No. 887 of 2013 with Cr.W.J.C.No. 899 of 2012 Chhote Lal Singh Vs. The State of Bihar & Ors had reservations on the correctness of the ratio decided by two earlier Division Bench of this Court in Cr. Misc. No. 50246 of 2006 Om Prakash Singh Vs. State of Bihar and Cr. Misc. No. 719 of 1998 Shankar Kumar Ghose Vs. State of Bihar wherein it was held that an FIR and police investigation of cases registered under Section 32 of the Drugs and Cosmetic Act, 1940 is not permissible under the scheme of the Act. In the circumstance, by order dated 12.08.2015 passed in the aforesaid Cr.W.J.C., the matter was referred to a larger Bench for consideration of the points detail in Para-3 of this judgment above. For better appreciation of the points referred, the same are being recasted as follows:
(i) Whether in absence of any special provision barring the investigation of offences which are declared cognizable by Section 36-AC of the Drugs and Cosmetic Act, 1940, is not the police competent to register the offence under Section 154 Cr.P.C. and to investigate the same and lay down the chargesheet before the courts of Magistrate for taking Patna High Court CR. WJC No.887 of 2013 100/173 cognizance? In other words, should not the police register a case and investigate the same even in respect of offences under Chapter-IV of the Act as appears held by implication by the Hon'ble Supreme Court in Vishal Agrawal and Anr. Vs. Chhatisgarh State Electricity Board and Anr, reported in (2014)3 SCC 696. Of course, in context to enactment other than this Act?
(ii) Whether the judgments/orders of the Court in Cr.Misc.No.719 of 1998, Cr.Misc. No. 808 of 1998 and Cr.
Misc. No.50246 of 2006 requires reconsideration?
It is worth to mention here that in all the aforesaid judgments, this Court has held that FIR and police investigation of the cases registered under Section 32 of the Drugs and Cosmetic Act are not permissible under the scheme of the Act.
(iii) Is not it that Section 32 of the Act is attracted only in respect of offences which are defined and made punishable by Chapter-IV of the Act. Other provisions like Section 13,33-I and 33-J of the Act are not covered by Section 32 of the Act and in cases of those sections which are falling under Chapter- III and IVA cognizance and trial has to be undertaken by courts other than the courts of sessions as per the provisions contained under Chapter-III or Chapter-IVA of the Patna High Court CR. WJC No.887 of 2013 101/173 Act?
(iv) Is not it that in absence of any prescription as regards taking cognizance of an offence under Chapter-IV of the Act, it could be only the court of Magistrate who has to act under Section 190 Cr.P.C.?
102. Point Nos. I and II:-
Section 32 of the Drugs and Cosmetic Act, 1940 reads 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 authorized 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 recognized 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 Patna High Court CR. WJC No.887 of 2013 102/173 deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter."
103. Submission advanced in favour of the bar of registration of a police case and investigation of the case by the police is that the Act is a self-contained Code and has taken proper care of complete investigation of the offences under the Act by a qualified inspector defined under the Act, considering the specialized nature of offences of misbranding of drugs and cosmetic, adulteration of drugs and cosmetic, and spurious drugs and cosmetic. Moreover, a bill was introduced in the parliament named as the Drugs and Cosmetic (Amendment) Bill, 2005. The proposed amendment in Section 32 of the Principal Act reads as follows:-
"(1) No prosecution under this Chapter shall be instituted except by-
(a) an Inspector; or
(b) any police officer (not below the rank of Sub-
Inspector of Police) as referred to in the Police Act, 1861 or any member of the police establishment not below the rank of Sub- Inspector of the Special Police Force constituted under the Delhi Special Police Establishment Act, 1946; or Patna High Court CR. WJC No.887 of 2013 103/173
(c) any officer of the Central Government or a State Government authorized 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
(d) the person aggrieved; or
(e) a recognized 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."
104. Clause (b) of sub-section (1) of Section 32 of the Bill above did not find favour of the parliament, as such, by the Amendment Act No. 26 of 2008, only the provisions of Section 32 as it is, assented to by the Parliament.
105. On the aforesaid basis, submission is that the Parliament was conscious that there is no provision under the Statute to institute the prosecution on police report and when such provision was proposed to be brought on the Statute, the Legislature declined the same. Therefore, under the scheme of the Act, FIR and police investigation of the offences registered under Section 32 of the Act is not permissible.
106. To contra, submission is that if the Legislature Patna High Court CR. WJC No.887 of 2013 104/173 would have intended that only a complaint petition is maintainable under the scheme of Section 32 of the Act, it would have clearly used the words "no prosecution under this Chapter shall be instituted except on a complaint by", as has been done in respect of other statutes such as Clause A of sub- section (1) of Section 142 of the Negotiable Instrument Act, 1981 which says that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing. Similarly, sub-section (1) of Section 20 of Transplantation of Human Organs and Tissues Act, 1994 provides that no court shall take cognizance of an offence under this Act except on a complaint made by. Likewise, Section 55 of Wild Life (Protection Act), 1972 reads that no court shall take cognizance of any offence in this Act except on the complaint of any person other than.
107. Contention is that besides the Inspector defined under the Act, some other person and authorities are also competent to institute the case under Section 32 of the Act including the person aggrieved. Unless the Drugs and Cosmetic Act, 1940 specifically bars institution of the police case and investigation of the same by the police, the person aggrieved or any other recognized consumer association or Gazetted Officer Patna High Court CR. WJC No.887 of 2013 105/173 empowered by the Govt. concerned cannot be compelled to not to go before the police and to file a complaint case only.
108. A conjoint reading of the provisions of sub- section (2) of Section 4 and Section 5 of the Code of Criminal Procedure, 1973 reproduced in para-26 of this judgment above makes it abundantly clear that if any enactment regulates the manner or place of investigation, enquiry and trial of the offences mentioned in the said enactment, the provisions of that enactment shall be applicable. Now the question to be examined is whether the Drugs and Cosmetic Act provides for investigation of the case by the Inspector in a manner better than the police can do under Chapter XII of the Code of Criminal Procedure, 1973. In other words, whether the Drugs and Cosmetic Act by necessary implication bars the application of Chapter-XII of the Code of Criminal Procedure which relates to institution of the FIR and investigation of the case by police.
109. The Drugs and Cosmetic Act, 1940 is a consumer protection legislation which is mainly concerned with the standards and purity of drugs manufactured in this country, it controls import, manufacture, sale and distribution of spurious, adulterated and misbranded drugs and cosmetics. The violation has been made punishable under the Act. The Act Patna High Court CR. WJC No.887 of 2013 106/173 further provides for forum of investigation and trial of offences committed under the Act. A perusal of the entire scheme of the Act and its closer scrutiny manifestly depicts that the Act is a complete code for investigation and trial of offences under the Act and whereever the Legislature found it necessary, the Act specifically provided that the provisions of Cr.P.C. would be followed in that particular matter. The investigation of the case under the Act requires special skill rather scientific knowledge to identify spurious and adulterated drugs. The Inspector, under the Act, who has been empowered under Sub Rule 4 of Rule 51 of the Drugs and Cosmetic Rules, 1945 to investigate any complaint in writing which may be made to him, is required to possess a special qualification under Rule 49 of the Drugs and Cosmetic Rules 1945 (hereinafter referred to as Rules). According to Rule 49, a person who is appointed as Inspector under the Act shall be a person who has a degree in Pharmacy or pharmaceutical sciences or medicine with specialization in clinical pharmacology or micro biology from a university established in India by law. Besides the aforesaid, the Inspector is further required to have experience of the period referred in the Rules. The appointments of Inspectors in relation to Ayurvedic, Siddha and Unani drugs is to be done as per Patna High Court CR. WJC No.887 of 2013 107/173 provisions of Section 33(G) and appointment of Inspectors for any other drugs or cosmetics is to be done according to Section 21 of the Act. Section 22 of the Act refers to the powers of the Inspectors which includes search and inspection of the premises wherein drugs and cosmetic is being sold, stocked, exhibited or offered for sale or distribution. The Inspector is empowered to take samples of any drug or cosmetic and to send it for forensic examination, to the recognized Govt. analysts, and for report. After receipt of the report, a copy of the same would be handed over to the person from whom seizure was made and a copy of the same shall be forwarded to the court before which any proceeding in respect of that sample is pending vide Section 25 of the Act. The Inspector can search any place or vehicle or vessel where he has reason to believe that the same is being used for carrying and storage of drugs and cosmetics. The Drug Inspector is empowered to examine any record or register document or any other material if he has reason to believe that it may furnish evidence of commission of an offence under the Act. The drug inspector can require any person to produce any record or register etc relating to manufacture or sale or distribution stock etc of the drugs and cosmetics. Clause (d) of sub-section 1 of Section 22 empowers the inspector to exercise Patna High Court CR. WJC No.887 of 2013 108/173 such other powers as may be necessary for carrying out the purposes of this chapter or any Rule made thereunder. The Drug Inspector shall follow the procedure of search and seizure mentioned in the Cr.P.C. Thus entire power of investigation of the specialized nature of offences under the Act has been vested in a skilled person known as "Inspectors" under the Act and Rules made thereunder. The police has no such skill, therefore, by necessary implication, the Act bars registration of the FIR under Section 154 Cr.P.C. even of cognizable offences as well as investigation of the case by the police because a complete and effective care has been taken by the statutory provision for proper investigation of the complaint received by the Inspectors either from the person mentioned in Section 32 or from the court where complaint is brought. The Inspector has got certain powers exercisable prior to institution of prosecution and certain powers exercisable prior to as well as after the institution of the prosecution.
110. The matter can be examined from another angle also.
111. According to Advanced Law Lexicon, in criminal law the word "prosecution" means a proceeding instituted and carried on by the course of law before a Patna High Court CR. WJC No.887 of 2013 109/173 competent court for the purpose of determining the guilt or innocence of a person charged with crime. In General Officer Commanding, Rashtriya Rifles Vs. Central Bureau of Investigation & Anr, reported in (2012)6 SCC 228, the Hon'ble Supreme Court considered the interpretation of term "institution of a case" and said that the expression has to be understood in the context of the scheme of the Act applicable in a particular case. So far as the criminal proceedings are concerned "institution" does not mean filing, presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in Cr.P.C.
In Surjit Singh Kalra Vs. Union of India & Anr., reported in (1991)2 SCC 87 the Hon'ble Supreme Court quoted with approval the following from Craies Statute Law, 7th Edition Page-109 " True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain Patna High Court CR. WJC No.887 of 2013 110/173 existing words of all meaning, it is permissible to supply the words".
In Union of India & Anr. Vs. Hansoli Devi & Ors, reported in (2002)7 SCC 273, the Hon'ble Supreme Court said about the meaning of "ambiguous" as follows:
"A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning."
112. There are two commonly used modes of institution of criminal prosecution known to the criminal jurisprudence. One is by filing of a complaint to the court and another is report to the police which culminates in filing of the police report to the court under Section 173 Cr.P.C. which sets the court exercising criminal jurisdiction in motion. As has Patna High Court CR. WJC No.887 of 2013 111/173 been referred above, the Drug and Cosmetic (Amendment Bill) 2005 attempted to empower the police to institute prosecution which the police can do only by filing a report under Section 173 Cr.P.C. but the said provision did not find favour of the parliament while considering the amendment in Section 32 of the Principal Act. Thus the parliament consciously declined to include the police as the authority to institute the prosecution. In the circumstance, it cannot be argued that in absence of use of the word "complaint" in Section 32 of the Act, the necessary implication would be that prosecution can be launched on the police report also; for the reason that the parliament specifically denied the proposed amendment to be brought on the statute. If the prosecution cannot be launched on the police report, the institution of FIR under Section 154 Cr.P.C. would be a futile exercise. Thus after examination of the matter from both the angles i.e. denial of the parliament to add the police also among others mentioned in Section 32 of the Act as person competent to institute prosecution as well as specific provision for exercise of power of investigation by the Inspector engrafted in the Act which leaves no stone untouched for proper and just investigation of the case, in my view, the FIR and police report under Section 173 Cr.P.C. is barred under the Patna High Court CR. WJC No.887 of 2013 112/173 scheme of the Drugs and Cosmetic Act,1940 which includes Section 32 of the Act also.
113. In Vishal Agrawal Case (Supra), the point for consideration before the Hon'ble Supreme Court was whether the amendment in Section 151 of the Electricity Act , 2003 which empowers the Court to take cognizance of an offence upon a police report made by the police under Section 173 of the Code of Criminal Procedure would be applicable to the pending complaints filed before the aforesaid amendment. Prior to the amendment in the Electricity Act with effect from 15.06.2007, there was no provision for taking cognizance on the police report filed under Section 173 Cr.P.C in the Electricity Act, 2003, however, by the said amendment, the police was enabled to investigate the cognizable offences under the Act. The amended provision was considered by the Hon'ble Supreme Court in Vishal Agrawal Case (Supra) alongwith the Electricity Rules, 2005 made in exercise of power under Section 176 of the Electricity Act, 2003 especially the provisions of Rule 12 was noticed, wherein it was specifically mentioned that the police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the appropriate Government or the Patna High Court CR. WJC No.887 of 2013 113/173 appropriate Commission or any of their officers authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of the licensee or a generating company, as the case may be. Under Sub-Rule 2, the police was empowered to investigate the complaint in accordance with the general law applicable to the investigation of any complaint.
114. The factual position of this case is quite different. There is no such provision either in the Act or under the Rules made thereunder, authorizing the police to take cognizance of the complaint made by the authorized person complaining commission of the offence under the Drugs and Cosmetics Act or power to investigate such complaint.
115. In A.K .Roy and Anr. Vs. State of Punjab & Ors, reported in (1986)4 SCC 326, the Hon'ble Supreme Court was considering the provisions of Section 20 of the Prevention of Food Adulteration Act, 1954 and held that only the categories of persons authorized under the Act are competent to launch prosecution and the Act does not contemplate the institution of a prosecution by any person other than those designated. The ancillary would be that in the Drugs and Cosmetic Act also, the authorized persons under Section 32 of Patna High Court CR. WJC No.887 of 2013 114/173 the Act cannot delegate the power to file prosecution report to the police by filing a complaint to the police and permitting the investigation of the case by the police.
116. In D.B. Habeas Corpus Petition No.6897 of 2009, Doctor Hriday Narain Singh Vs. The State of Rajasthan & Anr, alongwith the connected writ applications, a Division Bench of the Hon'ble Rajasthan High Court had occasion to consider whether FIR of the offences alleged to be committed under the Drugs and Cosmetics Act, 1940 was permissible in law and if not whether detention of the accused in pursuance of the FIR was illegal detention. The Court accepted the submission of the petitioners that "the custody of the petitioners since inception was absolutely illegal because no criminal complaint under Section 200 Cr.P.C. came to be filed and no process was ever issued under Section 204 Cr.P.C. The arrest of the petitioners was illegal since inception and wholly without jurisdiction, violating the fundamental right of the personal liberty of the petitioners guaranteed under Article 21 of the Constitution of India". The Court further held that " a prosecution under Section 32 of the Act can be initiated by the authorized persons only by means of a complaint only".
117. In the case of Rajendra Vs. The State of Patna High Court CR. WJC No.887 of 2013 115/173 Maharashtra & Anr, (Cr. Writ Petition No.846 of 2016) by judgment dated 03.10.2016, a Division Bench of the Hon'ble Bombay High Court held that the police investigation conducted by the police officer in respect of offence under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 was illegal.
118. In Ashok Kumar Sharma Vs. State of U.P and Ors, in Cr. Misc. Writ Petition No.20338 of 2018, a Division Bench of the Hon'ble Allahabad High Court was considering the quashment of FIR registered for offences under Section 18(a) (i) and 27 of the Drugs and Cosmetics Act, 1940 while quashing the FIR, the Court observed as follows:
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 Patna High Court CR. WJC No.887 of 2013 116/173 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, Patna High Court CR. WJC No.887 of 2013 117/173 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".
119. Thus the irresistible conclusion would be that irrespective of declaration of certain offences as cognizable by Section 36-AC of Drugs and Cosmetics Act, 1940, the police is incompetent to register an FIR and investigate the case in view of the specific and compact scheme under the Act for investigation of the case by an inspector under the Act as well as scheme of institution of prosecution by the named authorities specifically excluding the provision for institution of prosecution on the police report which was sought to be brought on the statute book and declined by the parliament as discussed above. The judgment of the Hon'ble Supreme Court in Vishal Agrawal Case (Supra) was rendered in quite different factual and statutory provisions of the case, hence, is not applicable in the present facts and circumstances of this case. Accordingly, it is held that the judgments in Cr. Misc. No.719 of 1998, Shankar Kumar Ghose Vs. The State of Bihar and in Cr.Misc. No. 808 of 1998 and Cr. Misc. No. 50246 of 2006 Om Prakash Singh Vs. The State of Bihar & Ors whereunder Patna High Court CR. WJC No.887 of 2013 118/173 the two Division Benches comprising of different Hon'ble Judges held that an FIR and police investigation of the cases under Section 32 of the Drugs and Cosmetics Act, 1940 is not permissible, requires no reconsideration.
120. Point No.III- To correctly understand the correct answer of this point, it would be apt to have a look on the schemes and provisions of the Drugs and Cosmetics Act, 1940. The whole Act is divided into V Chapters. Chapter-I is introductory one, containing short title, extent and commencement of the Act and definition of certain terms used under the Act etc. Chapter-II relates to the Drugs Technical Advisory Board, the Central Drugs Laboratory and the Drugs Consultative Committee containing Section 5 to Section 7 (a). The provisions are not relevant for our purpose. Chapter-III relates to import of Drugs and Cosmetics, it contains Section 8 to Section 15. The terms misbranded drugs, adulterated drugs, spurious drugs, misbranded cosmetics, spurious cosmetics are defined for the purpose of this Chapter and Section 10 relates to prohibition of import of certain drugs and cosmetics. Other provisions relates to power of the Central Govt. to make rules in this regard. Section 13 provides for offences in relation to import of the Drugs and Cosmetics and provision for Patna High Court CR. WJC No.887 of 2013 119/173 punishment for commission of the offences under Section 13 of the aforesaid Act. Section 14 provides for confiscation of the Drugs and Cosmetics in respect of which offence has been committed under Section 13. Section 15 confers jurisdiction on a Metropolitan Magistrate or Judicial Magistrate of 1st Class for trial of offences punishable under Section 13 of the Act. Chapter-IV relates to manufacture, sale and distribution of Drugs and Cosmetics. This Chapter contains Section 16 to 33
(a). Again for the purpose of this Chapter, the terms misbranded drugs, adulterated drugs, spurious drugs, misbranded cosmetics, spurious cosmetics and adulterated cosmetics are defined and Section 18 provides for prohibition of manufacture and sale of certain drugs and cosmetics. Section 21 relates to qualification and appointment of Inspectors and under Section 22 is power of the Inspectors and Section 23 contains procedure to be followed by the Inspectors. Section 25 relates to reports of the Govt. Analysts. Sections 27, 27A provide penalty for manufacture, sale etc of Drugs and Cosmetics in contravention of this Chapter. Sections 28A, 29 and 30 also provide for punishment for contravention of the provisions under the Chapter. Section 31 provides for confiscation of the drugs and cosmetics in respect of which offence has been committed. Patna High Court CR. WJC No.887 of 2013 120/173 Section 32 relates to cognizance of offence. Section 32-B is compounding of certain offences. Section 33 gives the rule making power to the Central Govt. and Section 33-A lays down that save as otherwise provided in this Act nothing contained in this Chapter shall apply to Ayurvedic, Siddha and Unani drugs. In respect of Ayurvedic, Siddha and Unani drugs, provisions is there in Chapter-IVA. This Chapter starts from Sections 33-B to 33-O. Again there is definition of adulterated and spurious drugs under this Chapter as well as penalty for manufacturing, sale of Ayurvedic, Siddha and Unani drugs in contravention of the provisions of the Chapter. Under Section 33-G, the Inspectors are defined and they are empowered to exercise power under Sections 22,23,24 and 25 contained in Chapter-IV of the Act in view of the provisions of Section 33(H). There is provision for penalty for subsequent offences and confiscation of the drugs in respect of which offence has been committed. Section 33-M(1) says that no prosecution under this Chapter shall be instituted except by an Inspector with the previous sanction of the authority specified under Sub-section 4 of Section 33(G). Sub-section 4 of Section 33(G) says that every inspector shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code and shall be Patna High Court CR. WJC No.887 of 2013 121/173 officially subordinate to such authority as the Govt. appointing him may specify in this behalf. Again provision is here that no Court inferior to that of Metropolitan Magistrate or Judicial Magistrate 1st Class shall try an offence punishable under this Chapter. Chapter-V contains miscellaneous provisions. As per Section 36-AB for trial of certain offences enumerated under Section 13 contained in Chapter- III and offences enumerated in Sections 22,27,28 and Section 30 contained in Chapter-IV, there is provision for designation of one or more court of sessions as Special Court. Section 36-AC makes certain offence cognizable and non-bailable. Section 36-AD contemplate application of Cr.P.C. before the Special Court. Section 36-A is being reproduced below:
36-A "Certain offences to be tried summarily.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), [all offences(except the offences triable by the Special Court under section 36AB or Court of Session) under this Act], punishable with imprisonment for a term not exceeding three years, other than an offence under Patna High Court CR. WJC No.887 of 2013 122/173 clause (b) of sub-section of section 33-I, shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the Patna High Court CR. WJC No.887 of 2013 123/173 case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness who has been examined and proceed to hear or rehear the case in the manner provided by the said Code."] 36-AD. "Application of Code of Criminal Procedure, 1973 to proceedings before Special Court. -- (1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor:
121. It is well settled principle of interpretation of the Statute that a Statute must be read as a whole and one provision of the Act should not be construed with reference to Patna High Court CR. WJC No.887 of 2013 124/173 other provisions in the same Act so as to make a consistent enactment of the whole Statute. Such a construction has a merit of avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the Statute. It is the duty of the courts to avoid "a head on clash" between two sections of the same Act and "whenever it is possible to do so to construe provisions which appears to conflict so that they harmonize". "When there are in an enactment, two provisions which cannot be reconciled with each other they should be so interpreted that, if possible, affect should be given to both. This is what is known as the rule of harmonious construction." (reference may be made to the judgment of Hon'ble Supreme Court in Power Machines India Limited Vs. State of Madhya Pradesh & Ors, reported in (2017)7 SCC 323).
122. In National Insurance Company Limited Vs. Kirpal Singh and other analogous cases, reported in (2014)5 SCC 189, the Hon'ble Supreme Court considered the earlier judgment in R.B.I. Vs. Peerless General Finance & Investment Co. Ltd., reported in (1987)1 SCC 424 and held as follows:
"33. Interpretation must depend on the text and the context. They are the bases of Patna High Court CR. WJC No.887 of 2013 125/173 interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit Patna High Court CR. WJC No.887 of 2013 126/173 into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place." (emphasis supplied).
123. The Courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some in exactitude in the language used. The Statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole issue. (Reference may be made in Commissioner of Income Tax Vs. Hindustan Bulk Carriers, reported in (2003)3 SCC
57).
124. A court should interpret a provision so as to make explicit the intention of the legislature. It cannot rewrite, recast, or redesign the provisions since the power to legislate has not been conferred on the courts. The Court should make a purpose full interpretation so as to effectuate the intention of the legislature and not a purpose less one in order to defeat the intention of the legislature wholly or in part. (Reference may be Patna High Court CR. WJC No.887 of 2013 127/173 made in Union of India & Anr. Vs. Shardindu, reported in (2007)6 SCC 276. In Commissioner of Income Tax Vs. Hindustan Bulk Carriers, reported in (2003)3 SCC 57, the Hon'ble Supreme Court observed as follows:
"The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. Thus a construction that reduces one of the provisions to a "useless lumber" or "dead letter" is not a harmonised construction. To harmonise is not to destroy. It should not be lightly assumed that Parliament had given with one hand what it took away with the other."
125. There is no provision under Chapter-III as to who will investigate the offences committed under Section 13 of the Act nor there is provision as to who will institute the prosecution for offence under this Chapter, however, Rule 52 (5) of the Drugs and Cosmetics Rules, 1945 empowers the inspectors to institute prosecution in respect of breaches of the Act and Rules thereunder. Likewise Section 51 (4) to (5) which Patna High Court CR. WJC No.887 of 2013 128/173 contains head notes "duties of inspectors of premises licensed for sale" to investigate any complaint in writing which may be made to him and to institute prosecution in respect of breaches of the Act and Rules thereunder. Therefore, the rules made under the Act have clarified that the Inspectors under the Act are empowered to investigate the breaches committed under the Act and Rules which are punishable. The aforesaid Rule covers the offence committed under Chapter III also besides the offence committed under Chapter-IV. Section 33-I and Section 33-J are in Chapter-IVA relating to Ayurvedic, Siddha and Unani Drugs. Under Section 33(G) there is provision for appointment of Inspectors having prescribed qualification and the provisions of Section 22 relating to power of the Inspectors. Section 23, the procedure to be followed by the Inspectors is applicable in respect of the offences under Section 33-I and Section 33-J also in view of the provisions of Section 33-H which reads as follows:
"33-H. Application of provisions of sections 22, 23, 24 and 25.--The provisions of sections 22, 23, 24 and 25 and the rules, if any, made thereunder shall, so far as may be, apply in relation to an Inspector and a Government Patna High Court CR. WJC No.887 of 2013 129/173 Analyst appointed under this Chapter as they apply in relation to an Inspector and a Government Analyst appointed under Chapter IV, subject to the modification that the references to "drug" in the said sections, shall be construed as references to [Ayurvedic, Siddha or Unani] drug".
126. There is specific provision under Section 33(M) in respect of the offences committed under Chapter-IVA as to the person competent to institute the prosecution with the previous sanction of the competent authority designated by the Central Govt. Sub-Section 2 of the Section 33-M provides that no court inferior to Metropolitan Magistrate or Judicial Magistrate 1st Class shall try offences under this Chapter. Again the harmonious construction would be that the Inspector would be competent person to investigate the case committed under any of the provisions of the Act in view of the clarification made in Rule 51 and 52 of the Drugs and Cosmetics Rules 1945 as discussed above. Thus the harmonious construction of the provisions referred above would be that the competency of the person to institute prosecution under Chapter-III would be the same as referred in Section 32 of the Patna High Court CR. WJC No.887 of 2013 130/173 Act in absence of specific provision in this regard in Chapter- III. Section 33-M specifically provides the competency of only the Inspector to institute the prosecution with the previous sanction of the competent authority. Hence, the offences under Chapter-IVA shall be investigated and the prosecution shall be instituted by the Inspector under Section 33-M containing specific provision for the purpose.
127. The relevant provisions of forum of trial mentioned under the Act are being reproduced below.
"15. Jurisdiction.- No Court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the first class shall try an offence punishable under Section 13."
32. "Cognizance of offences. -- [(1) x x x x
(a) x x x x x xx x x x x x x x x x x x x x x
(b)x x x x x x x x x x x x x x x x x x x x x x
(c)x x x x x x x x x x x x x x x x x x x x
(d) x x x x x x x x x x x x x x x x x x x x x (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.] Patna High Court CR. WJC No.887 of 2013 131/173 "33M. Cognizance of offences.-- (1) No prosecution under this Chapter shall be instituted except by an Inspector 1[with the previous sanction of the authority specified under sub-section (4) of section 33G].
(2) No Court inferior to that 2[of a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter".
36-A "Certain offences to be tried
summarily.--Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), [all
offences(except the offences triable by the Special Court under section 36AB or Court of Session) under this Act], punishable with imprisonment for a term not exceeding three years, other than an offence under clause (b) of sub-section of section 33-I, shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the Patna High Court CR. WJC No.887 of 2013 132/173 State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness who has been examined and proceed to hear or Patna High Court CR. WJC No.887 of 2013 133/173 rehear the case in the manner provided by the said Code."
36-AB Special Courts. --(1) The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences relating to adulterated drugs or spurious drugs and punishable under clauses (a) and (b) of section 13, sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and clause (b) of sub-section (l) of section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Session as a Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification.
Explanation .--In this sub-section, "High Court" means the High Court of the State in which a Court of Session designated as Patna High Court CR. WJC No.887 of 2013 134/173 Special Court was functioning immediately before such designation.
(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-
section (l), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial."
128. A conjoint and harmonious reading of the aforesaid provisions would be that the offences mentioned under Section 36-AB shall be tried by a special court of the rank of court of sessions except offences under Section 13(a)
(b), other offences are related to Chapter-IV of the Act. Sub Section 2 of Section 32 of Chapter- IV says that no court inferior to that of a court of sessions shall try an offence punishable under this Chapter. Therefore, all offences under Chapter-IV plus offences under Section 13(a)(b) occurring in Chapter-III shall be tried by a court of sessions or by the Special Judge of the rank of court of sessions if notified by the Central Govt. or the State Govt. Section 15 provides that no court inferior to that of a Metropolitan Magistrate or a Judicial Patna High Court CR. WJC No.887 of 2013 135/173 Magistrate of 1st Class shall try an offence punishable under Section 13 is to be harmonised to the extent that offences mentioned under Section 13(a)(b) shall be excluded from the jurisdiction of Metropolitan Magistrate or Judicial Magistrate 1st Class for the purpose of trial as the same is triable by a Special Judge of the rank of the court of sessions in view of the provisions of Section 36-AB. The offences under Chapter-IVA with respect to Ayurvedic, Siddha and Unani Drugs shall be tried by a court not inferior to that of the Metropolitan Magistrate or Judicial Magistrate 1st Class in view of the provisions under Section 33-M.
129. Point No.IV- The Drugs and Cosmetics Act, 1940 does not have any specific provision as to the court which is competent to take cognizance of the offences under the Act. The Act does not specifically bar the application of the Code of Criminal Procedure. Rather it is specific that in the matter of trial before the court of sessions, the procedure for trial of offences under the Cr.P.C. shall be followed. The offences mentioned in Section 36-A shall be tried summarily as per provisions of the Cr.P.C. by a Judicial Magistrate of the 1 st Class and in the matter of search and seizure also, the Inspector has to follow the provisions of Cr.P.C. in view of the provisions Patna High Court CR. WJC No.887 of 2013 136/173 of Section 22(2) of the Act. Thus harmonious construction would be that the court competent to take cognizance under the Cr.P.C. shall be competent to take cognizance of offences under the Act also which will include offences mentioned in Chapter- III, IV and Chapter-IVA.
130. Conclusion:-
A. Under the Drugs and Cosmetics Act, 1940, the institution of FIR under Section 154 Cr.P.C. and investigation of the case by the police and submission of chargesheets under Section 173 Cr.P.C. is completely barred in view of the specific provision for institution of the prosecution and power of investigation vested to the specially skilled Inspectors in the matter of nature and technicalities of the offences under the Act.
B:-Any aggrieved person can file a criminal complaint either to the court or to the Inspector under the Act and the Inspector is authorised to investigate any complaint in writing which may be made to him in view of the powers under Rule 51(4) of the Rules, 1945. Even the Magistrate is competent to transmit the complaint petition filed before it to the Inspector in exercise of power vested in Cr.P.C. with direction to investigate and thereafter institute prosecution in respect of breaches of the Act and Rules thereunder. The power Patna High Court CR. WJC No.887 of 2013 137/173 of the Magistrate shall be in addition to its own power to proceed with the complaint, instituted before it, according to law.
C:-As has been concluded above, the offences mentioned under Section 36-AB and 32(2) shall be tried by a court at the level of Sessions Judge by whatever designation, it may be known which includes one offence of Chapter-III and remaining offences of Chapter-IV of the Act. The rest of the offences under Chapter-III and under Chapter-IVA shall be tried by a Metropolitan Magistrate or a Judicial Magistrate of the 1st Class in view of the provisions under Section 15 occurring in Chapter-III and Section 33-M occurring in Chapter-IVA of the Act. According to quantum of punishment prescribed, the provisions of summary trial mentioned in the Cr.P.C. would be applicable as provided under Section 36-A of the Act as referred above.
D:-A Magistrate competent under Section 190 Cr.P.C. to take cognizance shall be competent to take cognizance under the Drugs and Cosmetics Act, 1940 also and shall follow the procedure of Cr.P.C. for enquiry and trial according to law and the aforesaid provision would not only Patna High Court CR. WJC No.887 of 2013 138/173 confine to offences under Chapter-IV of the Act rather in respect of all the offences mentioned under the Drugs and Cosmetics Act.
Per:- Hon'ble Mr. Justice Hemant Kumar Srivastava.
131. I have had opportunity to go through the judgments separately authored by brother Mr. Justice Aditya Kumar Trivedi and brother Mr. Justice Birendra Kumar respectively. Brother Justice Trivedi while answering reference no. (i) came to conclusion that the Magistrate would while exercising power under Section 190 of the Cr. P.C. is competent enough to take cognizance of an offence, apart from others, including under Drugs and Cosmetics Act. Furthermore, brother Justice Trivedi while answering the reference no. (ii) and (iv) came to conclusion that irrespective of nature of the offence, being non-cognizable or cognizable, the prosecution could not be confined by way of filing of the complaint petition only rather, considering the intent of the Legislature, the spirit of the law, it could be on a complaint petition as well as on police report. Furthermore, brother Justice Trivedi in respect of reference no. (iii) held that the principle so decided in Cr.W.J.C. No. 719 of 1998 along with Cr. Misc. No. 808 of 1998 and also Patna High Court CR. WJC No.887 of 2013 139/173 Cr. Misc. No. 50246 of 2006 are over-ruled.
132. Brother Justice Birendra Kumar on contrary held that under the Drugs and Cosmetics Act, 1940, the institution of first information report under Section 154 of Cr.P.C. and investigation of the case by the police and submission of charge sheets under Section 173 of the Cr.P.C. is completely barred in view of specific provision for institution of the prosecution and power of investigation vested to the specially skilled inspectors in the matter of nature and technicalities of the offences under the Act. Brother Justice Birendra Kumar further held that any aggrieved person can file a criminal complaint either to the court or to the inspector under the Act and the inspector is authorized to investigate any complaint in writing which may be made to him in view of the powers under Rule 51(4) of the Rules 1945 and even the Magistrate is competent to transmit the complaint petition filed before it to the inspector in exercise of power vested in Cr.P.C. with direction to investigate and thereafter, institute prosecution in respect of breaches of the Act and rules thereunder and the power of the Magistrate shall be in addition to his own power to proceed with the complaint, instituted before it, according to Patna High Court CR. WJC No.887 of 2013 140/173 law. Furthermore, Brother Justice Birendra Kumar held that the offences mentioned under Section 36-AB and 32(2) shall be tried by a court at the level of Sessions Judge by whatever designation, it may be known which includes one offence of Chapter III and remaining offences of Chapter IV of the Act. The rest of the offences under Chapter III and under Chapter IV-A shall be tried by a Metropolitan Magistrate or a Judicial Magistrate of the First Class in view of the provisions under Section 15 occurring in Chapter III and Section 33-M occurring in Chapter IV-A of the Act. According to quantum of punishment prescribed, the provisions of summary trial mentioned in the Cr.P.C. would be applicable as provided under Section 36-A of the Act as referred above. Brother Justice Birendra Kumar further held that a Magistrate, competent under Section 190 of the Cr.P.C. to take cognizance, shall be competent to take cognizance under the Drugs and Cosmetics Act, 1940 also and shall follow the procedure of Cr.P.C. for enquiry and trial according to law and the aforesaid provision would not only confine to offences under Chapter IV of the Act rather in respect of all the offences mentioned under the Drugs and Cosmetics Act.
133. It is needless to reiterate the facts of the Patna High Court CR. WJC No.887 of 2013 141/173 case because Brother Justice Trivedi has already referred the relevant facts of the case.
134. This larger Bench was constituted due to reference made by the Division Bench formulating the questions as mentioned by brother Justice Trivedi in his judgment.
135. The Division Bench of this court has formulated first question that is not it that in absence of any prescription as regards taking cognizance of an offence under Chapter IV of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'Act'), it could be only the court of Magistrate who has to act under Section 190 of the Cr.P.C. On the above stated point, brother Justice Trivedi as well as brother Justice Birendra Kumar are unanimous and held that Magistrate shall be competent under Section 190 of the Cr.P.C. to take cognizance of an offence apart from others including under Drugs and Cosmetics Act and shall follow the procedure of Cr.P.C. for enquiry and trial according to law and the aforesaid power of Magistrate under Section 190 of the Cr.P.C. is not confined only to offences under Chapter IV of the Act rather in respect of all the offences mentioned under the Act.
Patna High Court CR. WJC No.887 of 2013 142/173
136. Section 32 of Chapter IV of the Act runs 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.
The heading of Section 32 of the Act contains the word "cognizance of offences" whereas contents of Section 32 of the Act speak about prosecution. The aforesaid provision does not say as to who is competent to take cognizance rather the aforesaid section identifies those persons who are competent to institute prosecution. Similarly, Section 33-M of Chapter IV-A of the Act runs as follows:-
Patna High Court CR. WJC No.887 of 2013 143/173 33-M. Cognizance of offences-(1) No prosecution under this Chapter shall be instituted except by an Inspector [with the previous sanction of the authority specified under sub-section (4) of section 33-G].
(2) No Court inferior to that [of a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter.
Section 33-M of the Act also does not say as to who is competent to take cognizance rather the aforesaid section only identifies a drug inspector with the previous sanction of the authority specified under Section 4 of Section 33-G of the Act to institute the prosecution. Therefore, it is obvious that the Act is completely silent as to who will take cognizance of the offences described in the aforesaid Act. It is well settled principle of law that if a special act is silent on any point, the provisions of general Law shall prevail. Section 4(2) of Criminal Procedure Code (hereinafter referred to as "Code") says that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
137. Here, I would like to refer that the offences Patna High Court CR. WJC No.887 of 2013 144/173 described in the Act have been put into two categories for the purpose of trial. Section 36-A says that the certain offences to be tried summarily and the aforesaid section identifies those offences of the Act which shall be tried summarily by a Judicial Magistrate of 1st Class and makes the provisions of Section 262 to 265 of the Code applicable for the purpose of trial. Similarly, Section 36-AB of the Act makes certain offences of the Act triable by a court of Sessions. Both the aforesaid sections say only about the procedure of trial and apart from this, Section 36-AD makes the provisions of Code applicable to the proceedings before Special Court.
138. Section 190 of the Code prescribes the mode of taking cognizance of the offences. The aforesaid section provides three modes of taking cognizance that is upon receiving a complaint of facts which constitutes such offence, upon a police report of such facts and upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. It is pertinent to note here that Section 190 of the code authorizes only Magistrate of the 1st Class and Magistrate of the 2nd Class especially empowered in this Patna High Court CR. WJC No.887 of 2013 145/173 behalf by the Chief Judicial Magistrate to take cognizance. Therefore, it is obvious that according to Section 190 of the Code, only Magistrate can take cognizance of offence. However, there is one exception in Section 193 of the Code which says that except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code.
139. Section 36-AB of the Act makes provision for designation of one or more courts of sessions as special court or special courts for trial of the offences of the Act which has been identified in Section 36-AB. Similarly, Section 32(2) of Chapter IV of the Act makes the offences of Chapter IV triable by court of Sessions. Therefore, it is obvious from perusal of Section 36-AB and Section 32(2) of the Act as well as Section 193 of the Code that Special Court designated under the Act has no jurisdiction to take cognizance of the offences of the Act as a court of original jurisdiction unless the case is committed to Special Court under Section 209 or other relevant provisions of the Code. Therefore, I am in fully agreement with brother Mr. Justice Patna High Court CR. WJC No.887 of 2013 146/173 Trivedi and brother Mr. Justice Birendra Kumar that in absence of any specific provision of taking cognizance under the Act, the Magistrate of the 1st Class or Magistrate of the 2nd Class, specially, empowered in this behalf shall take cognizance of the offences of the Act as a court of original jurisdiction under Section 190 of the Code. Accordingly, Reference no. 1 is answered in the aforesaid manner.
140. Learned Division Bench has formulated reference no. (ii) to this effect that is not it that Section 32 of the Act is attracted only in respect of offences which are defined and made punishable by Chapter IV of the Act and other provisions, like, Sections 13, 33-I and 33-J of the Act are not covered by Section 32 of the Act and in cases of those sections which are falling under Chapter III and IV A cognizance and trial has to be undertaken by courts other than the court of sessions as per provisions contained under Chapter III or IV A of the Act and if that is so and in absence of any special provision barring the investigation of offences which are declared cognizable by Section 36-AC, is not the police competent to register the offence under Section 154 of Cr.P.C. and to investigate the same and lay down the charge sheet before the courts of Magistrate for taking cognizance. Patna High Court CR. WJC No.887 of 2013 147/173 Brother Justice Trivedi has held in its judgment that the prosecution could not be confined by way of filing of the complaint petition only and the prosecution for the offences of Drugs and Cosmetics Act, 1940 could be prosecuted on a complaint petition as well as on police report. On contrary, brother Justice Birendra Kumar has held that Drugs and Cosmetics Act is a special Act and special procedure for investigation and trial of the offences of the Act have been provided and, therefore, the prosecution for the offences of the Act cannot be lodged on the police report and the prosecution can be initiated only on the basis of complaint petition filed by the persons authorized under Section 32 of the Act.
141. From bare perusal of the Section 32 of the Act, it is obvious that above stated section authorizes an Inspector, any Gazetted Officer of the Central Government or a State Government duly authorized by the Central Government or a State Government as the case may be, person aggrieved and a recognised consumer association whether such person is a member of that association or not to institute prosecution for the offences of the Chapter IV of the Act. Furthermore, the heading of Section 32 of the Act Patna High Court CR. WJC No.887 of 2013 148/173 speaks about cognizance of offences whereas section speaks about the competency of person who may institute the prosecution under Chapter IV of the Act. Section 32 of the Act goes to show that cognizance of offences of Chapter IV of the Act can only be taken by the court, if the prosecution is instituted by those persons who have been identified in Section 32 of the Act. It appears from the aforesaid section that, except the persons authorized by Section 32 of the Act to launch prosecution for the offences of Chapter IV of the Act, no person can initiate the prosecution for those offences which have been described in Chapter IV of the Act.
142. Before dealing with the aforesaid point, I would like to refer the backgrounds in which the amended Act 26 of 2008 was brought on the statute book. The drugs and Cosmetics Act 1940 was enacted to provide comprehensive measure for uniform control of the manufacture and distribution of drugs as well as of import. The aforesaid Act 1940 was amended time to time. The Act of 1940 was amended in 1982 so as to impose more stringent penalties on the anti social elements indulging in the manufacture or sale of adulterated or spurious drugs or drugs not of standard quality which are likely to cause death or Patna High Court CR. WJC No.887 of 2013 149/173 grievous hurt to the user. However, in course of time, it was felt that the penalties existing in the said Act were not effective and the increasing involvement of organized crime was noticed and it was also noticed that the offenders used to obtain bail as the offences were non-cognizable and bailable under the existing provisions of the Act. Thereafter, a Committee was constituted to examine the aforesaid issues. The Committee made certain recommendations including enhancement of penalties, designation of special court for speedy trial, making the offence cognizable and non bailable and also for authorizing the police to file prosecution for offences related to spurious drugs and compounding of offences etc. In view of the recommendation of the Committee, several amendments were made in Act 1940 by the Amendment Act, 2008.
143. I would like to refer Section 36-AC of Chapter V of the Act which says that notwithstanding anything contained in the Code of Criminal Procedure 1973(2 of 1974)-
(a) every offence, relating to adulterated or spurious drug and punishable under clauses (a) and (c) of sub-section (1) of Section 13, clause
(a) of sub-section (2) of Section 13, sub-section (3) of Section 22, clauses (a) and (c) of section 27, section 28, section 28-A, section 28-B and Patna High Court CR. WJC No.887 of 2013 150/173 sub-sections (1) and (2) of section 30 and other offences relating to adulterated drugs or spurious drugs, shall be cognizable.
(b) no person accused, of an offence punishable under clauses (a) and (c) of sub-section (1) of section 13, clause (a) of sub-section (2) of section 13, sub-section (3) of section 22, clauses
(a) and (c) of section 27, section 28, section 28-A, section 28-B and sub-sections (1) and (2) of section 30 and other offences relating to adulterated drugs or spurious drugs, shall be released on bail or on his own bond unless-
(i) the Public prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs.
(2)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
144. The bare perusal of Section 36-AC of the Act goes to show that certain offences of the Act have been identified as cognizable and non bailable. Here, I would like to refer Section 2 (c) of the Code which says that cognizance offence means an offence for which, and a cognizance case means a case in which, a police officer may in accordance with first schedule or under any other law for the time being in force, arrest without warrant. Furthermore, I would like to Patna High Court CR. WJC No.887 of 2013 151/173 refer Section 2 (l) of the Code which says that non cognizable offence means an offence for which, and a non cognizable case means a case in which a police officer has no authority to arrest without warrant.
145. Furthermore, Section 154 of the Code says as follows:-
154. Information in cognizable cases-
Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
146. Section 156 of the Code is also relevant here which runs as follows:-
156. Police officer's power to investigate cognizable case-(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer Patna High Court CR. WJC No.887 of 2013 152/173 was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.
147. The above stated relevant provisions of Code go to show that a police officer has authority to arrest any person without warrant in a cognizable offence and furthermore, it is obvious that if any information relating to commission of a cognizable offence is given to the police, the police officer is duty bound to enter the aforesaid information in a book to be kept by such officer. Meaning thereby, if an information regarding the cognizable offence is given to a police officer, the police officer shall register the first information report and without the order of a Magistrate shall investigate any cognizable case under his jurisdiction. Section 156(3) of the Code makes it clear that the Magistrate empowered under Section 190 of the code may direct the police to investigate any cognizable offence.
148. Section 32 and Section 33-M of the Act describe the persons who are competent to prosecute the offenders of the Act and the Court can take cognizance of the offence of the Act only on the basis of prosecution instituted by those persons who are identified under Section 32 as well as Section 33-M of the Act. However, sub-section Patna High Court CR. WJC No.887 of 2013 153/173 (3) of Section 32 makes it clear that the provision of Section 32(1) of the Act shall not prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against Chapter IV of the Act. Sub-section (3) of Section 32 of the Act makes it clear that a person can be prosecuted under any other law for any act or omission which constitutes an offence against him under Chapter IV of the Act. Therefore, it is obvious that if same set of facts constitute offence punishable under Chapter IV of the Act, 1940 as well as punishable under any other law, in that situation, the prosecution can be launched by any person and it is not necessary that the prosecution must be initiated by those persons who have been identified under Section 32(1) of the Act.
149. In State (NCT of Delhi) vs. Sanjay and other analogous cases reported in (2014) 9 SCC, 772, a question arose before the Hon'ble Apex Court as to whether police has power to institute cases on the basis of an FIR against the alleged offenders for mining of sand from riverbed without valid licence and as to whether Magistrate has the power to take cognizance of such offence upon a police report without a complaint from the authorized officer Patna High Court CR. WJC No.887 of 2013 154/173 under Section 22 of Mines and Minerals (Development and Regulation) Act, 1957 and whether mining of sand from riverbed would constitute an offence under Section 379 of the I.P.C. for dishonestly stealing public property. The Hon'ble Apex Court held in the aforesaid decision that Chapter X1 of the Code (specially Sections 149 to 152) confers very important power and duty upon the police officer to take preventive action in certain cases. Furthermore, Apex Court held that a police officer of his own authority has the duty to prevent any injury attempted to be committed to any public property or national assets and to prosecute such person in accordance with law. Section 22 of MMDR Act restricts the court to take cognizance of any offence punishable under MMDR Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government. The Hon'ble Apex Court while interpreting the aforesaid section 22 of MMDR Act as well as other relevant provisions of the Code came to conclusion that the aforesaid Section 22 of MMDR Act does not put a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals Patna High Court CR. WJC No.887 of 2013 155/173 including sand from the riverbed. The Hon'ble Apex Court also came to conclusion that merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint petition, shall not debar the police from taking action against the persons for committing theft of sand and minerals by exercising power under the Criminal Procedure Code and submit a report before the Magistrate for taking cognizance against such persons. The Hon'ble Apex Court also held that if same set of facts constitute the offences under MMDR Act as well as the offence punishable under any other law, the police can investigate the case and submit police report before the Magistrate and the Magistrate having jurisdiction can take cognizance of such offence without waiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of MMDR Act.
150. It is not in dispute that in the Act, the persons who are authorized under Section 32 of the Act can initiate prosecution before the competent court. Moreover, brother justice Trivedi as well as brother Justice Birendra Kumar are in agreement on the aforesaid point but only Patna High Court CR. WJC No.887 of 2013 156/173 difference between them is regarding the lodging of FIR in respect of offences committed under the Act. Section 32 of the Act does not specifically restrict the persons authorized under Section 32 of the Act to lodge FIR for commission of offences of Chapter IV of the Act.
151. There is difference between institution, investigation and prosecution. Section 2(h) of the Code defines the word "investigation" and says that "investigation" includes all the proceedings under the Code for collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. The words institution and prosecution have not been defined in the Code but in several decisions, it has been held that institution and prosecution are not interchangeable. In this context, I would like to refer judgment of General Officer Commanding, Rashtriya Rifles vs. Central Bureau of Investigation and another with Additional Director General, Army Headquarters vs. Central Bureau of Investigation reported in (2012) 6 SCC 228 wherein at para 34 of the aforesaid judgment, the Hon'ble Apex Court has held as follows:-
34. The meaning of the aforesaid term "institution" has to be ascertained taking into Patna High Court CR. WJC No.887 of 2013 157/173 consideration the scheme of the Act/statute applicable. The expression may mean filing/presentation or received or entertained by the Court. The question does arise as to whether it simply means mere presentation/filing or something further where the application of the mind of the court is to be applied for passing an order.
Furthermore, the Hon'ble Apex Court held at para 41 of the aforesaid judgment as follows:-
"41. Thus, in view of the above, it is evident that the expression "institution" has to be understood in the context of the scheme of the Act applicable in a particular case. So far as criminal proceedings are concerned, "institution" does not mean filing; presenting or initiating the proceedings, rather it means taking cognizance as per the provisions contained in Cr.P.C."
152. Therefore, it is obvious from the aforesaid view of Hon'ble Apex Court that case is deemed to be instituted when the court takes cognizance and mere filing of police report and complaint petition is not institution of the case.
153. In State, C.B.I. vs. Sashi Balasubramanian and another reported in (2006) 13 SCC 252, the Hon'ble Apex Court at para 29 held as follows:-
"29. It is in the aforementioned context that interpretation of the Patna High Court CR. WJC No.887 of 2013 158/173 word "prosecution" assumes significance. The term "prosecution" would include institution or commencement of a criminal proceeding. It may include also an inquiry or investigation. The terms "prosecution" and "cognizance" are not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages."
Furthermore, the Hon'ble Apex Court at para 31 of the aforesaid judgment held as follows:-
"31. The term "prosecution has been instituted" would not mean when charge sheet has been filed and cognizance has been taken. It must be given its ordinary meaning."
154. Before Amendment Act 26 of 2008, all the offences of the Act were non cognizable and bailable and for the first time certain offences of the Act were made cognizable and non bailable by the Amendment Act 26 of 2008. It is true that the Committee constituted prior to Amendment Act 26 of 2008 recommended to confer powers upon the police officer not below the rank of sub inspector of police and other officers of the Central Government or State Government authorized by it to institute the prosecution under the Act but the proposal of Committee was not fully accepted and the Legislature refused to confer Patna High Court CR. WJC No.887 of 2013 159/173 powers upon the police officers not below the rank of sub inspector of police to institute the prosecution under the Act. However, Section 32 of chapter IV of the Act goes to show that part recommendation of the committee was accepted and the Legislature gave power to any gazetted officer of the Central Government or a State Government as the case may be, authorized in writing in this behalf by the Central Government or State Government by a general or special order made in this behalf by that Government to institute prosecution under Chapter IV of the Act. It is not in dispute that certain police officials are enjoying the privilege of gazetted officer under the Central Government as well as State Government and sub clause (i) (b) of Section 32 of the Act makes it clear that Central Government or State Government, as the case may be, may authorize its gazetted officers to launch the prosecution for the offences punishable under Chapter IV of the Act. The conjoint reading of relevant provisions of the code as referred above as well as sub clause (3) of Section 32 of the Act go to show that if same set of facts constitute a cognizable offence punishable under Chapter IVth of the Act as well as punishable under any other law, the police has right to register FIR and Patna High Court CR. WJC No.887 of 2013 160/173 investigate the case and submit police report before the Magistrate. Furthermore, sub section (i) (b) of Section 32 of the Act goes to show that a gazetted officer duly authorized by the State Government or Central Government, as the case may be, can launch the prosecution. Therefore, if a gazetted police officer is authorized by the Government, the said gazetted authorised police officer can register the FIR, investigate the case and submit police report before the Magistrate having jurisdiction to take cognizance of the offences of the Act. Therefore, it cannot be said that there is absolute and complete bar for lodging the FIR for the offences of chapter IV of the Act.
155. Now, question arises that if same set of facts constitute a cognizable offence punishable under Chapter IVth and Chapter IVth A of the Act as well as punishable under any other law, can police register and investigate the case for the offences of Chapter IVth and Chapter IVth A of the Act as well as other law and can police lay the charge sheet before the court and furthermore, can the Magistrate take cognizance of the offences of Chapter IVth and Chapter IVth A of the Act on the basis of charge sheet submitted by the police for the offences of Chapter IV Patna High Court CR. WJC No.887 of 2013 161/173 and Chapter IV A of the Act. It is an admitted position that although certain offences of the Act have been identified as cognizable offences and the Code gives power to police to register the FIR and investigate the case of cognizable offences but Section 32 of chapter IV and Section 33-M of Chapter IV A of the Act put riders in prosecuting the offenders of the offences identified under Chapter IV and Chapter IV A of the Act because Section 32 of the Act specifically states that the Court can take cognizance of the offences of Chapter IV of the Act only on the basis of prosecution instituted by those persons who have been identified by the aforesaid section and similarly, Section 33- M also says that the prosecution can be instituted by an Inspector subject to previous sanction of the authority specified under sub section (4) of Section 33 G of the Act. Admittedly, the Act 1940 is a special Act and the aforesaid Act provides a special provision for prosecution and taking cognizance in respect of the offences which have been identified under Chapter IV as well as Chapter IV A of the Act. Since the term "Prosecution" includes institution or commencement of criminal proceeding and it also includes enquiry and investigation, in my view, police, except Patna High Court CR. WJC No.887 of 2013 162/173 specially authorised gazetted police officer, can not investigate the offences of Chapter IVth and Chapter IVth A of the Act in the light of Section 32 of Chapter IVth and Section 33-M of Chapter IVth A of the Act. Since the Act specifically states that no cognizance can be taken except on the basis of prosecution initiated by those persons who have been identified under Section 32 of Chapter IVth and Section 33 M of Chapter IVth A of the Act, in my view, even if the offences of Chapter IVth as well as Chapter IVth A of the Act have been identified as cognizable offences, the police cannot prosecute any person for the breaches and violation of offences identified under Chapter IV of the Act, except on the basis of the prosecution initiated by the gazetted police officer duly authorized by the State Government or the Central Government, as the case may be and so far as the offences identified under Chapter IV A of the Act are concerned, the prosecution can not be initiated by the police.
156. The Act has been divided in five chapters. Chapter 1 is Introduction, Chapter II speaks about the Constitution of Advisory Board, Establishment of Central Drugs Laboratory and the Drugs Consultative Committee, Patna High Court CR. WJC No.887 of 2013 163/173 Chapter III relates to Import of Drugs and Cosmetics, Chapter IV relates to Manufacture, Sale and Distribution of Drugs and Cosmetics, Chapter IV-A relates to Provisions Relating to Ayurvedic, Siddha and Unani Drugs whereas Chapter V deals with miscellaneous matters. Section 13 of Chapter III defines some offences relating to imports and makes the aforesaid offences punishable. Section 15 of Chapter III speaks about the forum which is competent to try the offences punishable under Section 13 of the Act. Chapter III of the Act does not speak of prosecution and cognizance of offence.
157. Now, it has to be seen as to whether the Act provides any special procedure for investigation, inquiring or trial or not. As I have already stated that Chapter III of the Act does not provide any special procedure for investigation and inquiry and only Section 15 of the Act says that a Metropolitan Magistrate or of a Judicial Magistrate of the First Class shall try an offence punishable under Section 13 of the Act. Therefore, it is obvious that the offences which are punishable under Section 13 of the Act shall be tried by a Metropolitan Magistrate or of a Judicial Magistrate First Class except Section 13(a) and (b) of the Act which are Patna High Court CR. WJC No.887 of 2013 164/173 triable by court of sessions. It is worth to mention here that the offences of clause (a) and clause (c) of Section 13 are cognizable offences as per Section 36-AD of the Act whereas remaining offences of Section 13 are non cognizable offences. Since there is no specific provision regarding the investigation and inquiry of the offences punishable under Section 13 of Chapter-III, in my view, in the light of sub-section (2) of Section 4 and Section 5 of the Code, the provisions of Code are applicable in respect of the offences described under Section 13 of the Act and it cannot be said that offenders of the offences punishable under Section 13 of the Act can only be prosecuted by filing complaint petition by those persons who have been authorized under Section 32 of the Act because all the Chapters of the Act have separate distinction.
158. Chapter IV-A relates to Ayurvedic, Siddha and Unani drugs. Section 33-I and Section 33-J of Chapter IV-A make certain acts punishable and Section 33-M of Chapter IV-A of the Act says that no prosecution under Chapter IV-A shall be instituted except by an Inspector with the previous sanction of the authority specified under sub- section (4) of Section 33-G. Furthermore, sub-clause (2) of Patna High Court CR. WJC No.887 of 2013 165/173 Section 33-M says that no court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the First Class shall try an offence punishable under Chapter IV- A of the Act. The above stated provisions go to show that the offence punishable under Chapter IV-A shall be tried by a Metropolitan Magistrate or a Judicial Magistrate of the First Class. Chapter IV-A speaks about special provision relating to enquiry and investigation of the offence punishable under Chapter IV-A and also says that prosecution for the offence punishable under Chapter IV-A can only be instituted by an Inspector with the previous sanction of the authority specified under sub-clause (4) of Section 33-G of the Act. Section 33-H of Chapter IV-A of the Act makes the provisions of Sections 22, 23, 24 and 25 and the rules, if any, made thereunder applicable in respect of Chapter IV-A also. Sections 22, 23, 24 and 25 of the Act have come under Chapter IV of the Act and the aforesaid provisions deal with the powers of Inspectors, procedure of Inspectors, duty of manufacturers or In-charge of any premises and reports of Government Analysts. Section 22 of Chapter IV of the Act gives power to Inspector as defined under Section 21 of the Act to inspect the premises, take sample of any drug or Patna High Court CR. WJC No.887 of 2013 166/173 cosmetic, search any person, enter and search any place, stop and search any vehicle, vessel and other conveyance and direct the person in possession of the drug and cosmetic not to dispose of any stock of such drug or cosmetic for specific period, examine any record, register, document or any other material object found and seize the same, 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 and exercise such other powers as may be necessary for carrying out the purposes of this Chapter or any rules made thereunder. Sub-section (2) of Section 22 of the Act makes the provisions of the Code applicable to any search or seizure as they apply to any search or seizure made under the authority of a warrant issued (Section 94) of the Code. Furthermore, Section 23 of the Act describes the procedure for taking sample of a drug or cosmetic by the Inspector. Section 25 of the Act speaks about the procedure of reports of Government analysts. Therefore, it is obvious that special provision of enquiry of the offences of Chapter IVth and IVth A of the Act has been given and, therefore, in the aforesaid circumstance, the provision of Cr.P.C. relating Patna High Court CR. WJC No.887 of 2013 167/173 to enquiry and investigation shall not apply for the offences of Chapter IVth and Chapter IVth A of the Act and the prosecution can be launched only by the Inspector with previous sanction of the authority by filing complaint before the competent court and no F.I.R. can be lodged for the offences of Chapter IV A of the Act.
159. As I have already stated that Section 32 of the Act speaks about the competence of a person who can launch prosecution for the offences punishable under Chapter IV of the Act. In Section 32 the word "Chapter" has been used and the definition of misbranded drugs and adulterated drugs etc. have separately been given in the aforesaid chapter and apart from this, in Chapter IV-A a separate provision for launching the prosecution under Section 33-M has been given and, therefore, Section 32 of the Act is confined only to Chapter IV of the Act.
160. Now, the controversy as stated above can be seen from another angle. According to sub-section (2) of Section 4, the investigation, inquiry and trial of a special law can also be made in accordance with the provisions of the Code unless there is specific provision for investigation, inquiry and trial of the aforesaid special law. As I have Patna High Court CR. WJC No.887 of 2013 168/173 already noticed that places of trial for the offences of the Act have already been disclosed in the Act and special procedure for investigation and inquiry of offences of Chapter IV and Chapter IV A of the Act have been described in the Act and Sections 22 and 23 of the Act describe powers of Inspectors and procedure of Inspectors and the aforesaid provisions give power to Inspectors appointed by the Central Government or the State Government to make inspection of any premises, take samples of any drug or cosmetic, make search and seizure, inspect and seize register and documents and also take sample of drug or cosmetic. The aforesaid provisions speak about the powers of Inspectors as well as procedures adopted by the Inspectors for taking and sending the sample of a drug and cosmetic. Moreover, Section 26 of the Act gives right to any person or any recognised consumer association whether such person is a member of that association or not to submit for test or analysis to a government analyst any drug or cosmetic and to receive a report of such test or analysis signed by the Government Analyst and Rule 51 (5) authorizes the Inspector to investigate any complaint made to him in writing. Therefore, it is obvious from the aforesaid position that a Patna High Court CR. WJC No.887 of 2013 169/173 specific and special provision for inquiry and procedure has been provided in Chapter IV and IV A of the Act. Therefore, in the aforesaid circumstances, no prosecution for the offences of Chapter IV can be lodged on police report except on police report submitted by authorised Gazetted police officer. Accordingly, the reference no. (ii) is answered in the aforesaid manner.
161. The learned Division Bench has formulated question no. (iii) as to whether judgments/orders of the Court in Cr.W.J.C. No. 719 of 1998 and Cr. Misc. No. 808 of 1998 and also Cr. Misc. No. 50246 of 2006 require reconsideration and furthermore, learned Division Bench formulated reference no. (iv) as to whether should not the police register a case and investigate the same even in respect of offences under Chapter IV of the Act as appears held by implication by the Supreme Court in Vishal Agrawal and Anr. (Supra), of course in context to an enactment other than the Act. In Vishal Agrawal and another v. Chhattisgarh State Electricity Board and another reported in AIR 2014 SC 1539, the Hon'ble Apex Court while dealing with the case of Electricity Act (36 of 2003) held that the offences under any other law could also be investigated, inquired into or tried Patna High Court CR. WJC No.887 of 2013 170/173 with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed under the Code. In Act, it is obvious that procedure for inquiry and investigation for the offences of Chapter IV and IV A of the Act have been specifically provided and, therefore, the procedure for investigation and inquiry prescribed in Act for the offences of Chapter IV and IV A of the Act shall prevail over the provisions of Code as per Section 4 of the Code. Accordingly, reference no. (iv) is answered in the aforesaid manner.
162. So far as reference no. (iii) is concerned, the judgments/orders of the Court in Cr.W.J.C. No. 719 of 1998 and Cr. Misc. No. 808 of 1998 and also Cr. Misc. No. 50246 of 2006 were considered and over-ruled in the light of this judgment.
163. On the basis of aforesaid discussions, all the questions formulated by the learned Division Bench are answered accordingly.
164. Conclusion:- Learned Division Bench has formulated issue no. 1 in respect of taking cognizance of an offence under Chapter IV of the Act and we all three have Patna High Court CR. WJC No.887 of 2013 171/173 unanimously come to conclusion that the Court of Magistrate shall be competent under Section 190 of the Cr.P.C. to take cognizance of an offence under the Act.
165. As regards point no. (ii) formulated by learned Division Bench, brother Justice Trivedi has come to conclusion that the prosecution could not be confined by way of filing of the complaint petition only rather it could be on complaint petition as well as on police report but brother Justice Birendra Kumar came to conclusion that under the Act, the institution of first information report under Section 154 of the Cr.P.C. and investigation of the case by the police and submission of charge sheets under Section 173 of the Cr.P.C. is completely barred in view of specific provision for institution of the prosecution and power of investigation vested to the specifically skilled inspectors in the matter of nature and technicalities of the offences under the Act. So far as my view is concerned, I have come to conclusion that no prosecution for the offences of Chapter IV of the Act can be lodged on police report except on police report submitted by authorized gazetted police officer. It is obvious that there is difference of opinion among us because brother Justice Trivedi has given his finding that the prosecution could not Patna High Court CR. WJC No.887 of 2013 172/173 be confined by way of filing of the complaint petition only rather prosecution can be launched on a complaint petition as well as on police report but according to brother justice Birendra Kumar, the prosecution can be launched only by filing compliant petition and the institution of first information report is barred by Section 32 of the Act. However, in my view, Section 32 of the Act is restricted only to Chapter IV of the Act and the prosecution for the offences defined under Chapter IV of the Act can be launched on the basis of complaint petition as well as by institution of FIR only by the authorized gazetted police officer. Furthermore, I have come to conclusion that except the offences defined under Chapter IV and Chapter IV A of the Act, the FIR can be lodged in respect of offences described under other chapters of the Act. Since we are not unanimous on the aforesaid point, in my view, the above stated point should be referred to a Larger Bench.
166. In view of the aforesaid discussions, let the issues no. (ii), (iii) and (iv) as formulated by the Division Bench be referred to Larger Bench for consideration. Accordingly, Registry (Office) is directed to place this matter before Hon'ble the Chief Justice with a request to Patna High Court CR. WJC No.887 of 2013 173/173 Hon'ble the Chief Justice to constitute Larger Bench for consideration of above stated issues.
(Hemant Kumar Srivastava, J)
( Aditya Kumar Trivedi, J)
(Birendra Kumar, J)
perwez/nitesh/shahzad
AFR/NAFR AFR
CAV DATE 19.04.2019
Uploading Date 29/07/2020
Transmission Date 29/07/2020