Karnataka High Court
Sri S A Kishore vs State By Drug Inspector, on 9 April, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 09TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.5292 of 2010
BETWEEN:
Sri. S.A. Kishore,
Son of Amarnatha Gupta,
Aged about 37 years,
Proprietor and Registered Pharmacist,
M/s. Devi Medicals,
No.593/4, 8th Main Road,
M.C. Layout, Vijayanagar,
Bangalore - 560 040. ...PETITIONER
(By Shri. C. Narasimhachar, Advocate)
AND:
State by Drug Inspector,
Circle -4, Bangalore - 560 001. ...RESPONDENT
(By Shri. P.M. Nawaz, Additional State Public Prosecutor)
*****
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the complaint and
2
entire proceedings in C.C.No.718/2007 before the Special
Court for Economic Offences, at Bangalore.
This petition is coming on for Final Hearing this day, the
court made the following:
ORDER
Heard the learned Counsel for the petitioner.
2. The facts of the case are as follows:-
The petitioner is said to be the proprietor of M/s Devi Medicals, M.C.Layout, Bangalore. It is the case of the respondent - complainant that he was required to ascertain whether any suspected spurious drugs were stocked for sale by the petitioner herein and it is alleged that on inspection, it was found that the petitioner had stocked the following spurious drugs:-
"a) 5 x 10s of perinorm Tabs B. No.GD4006AC, D/M 6/04, D/E : 5/07, Mfg by Ipca Laboratories Ltd., Silvassa (D&NH)
b) 1 x 10s of Cheston D.T. Tabs B.No. T50003, M/D :
Jan/05, E/D - DEC/07, Mfg by Meditab Specialties Pvt. Ltd., Goa - 403 115.3
c) 10 x 10s of Stemetil 5 Tabs, B. No. EC4002, M/D:
Jan/05, E/D - DEC/07, Mfg by Nicholas Piramal India Limited, Pathan (Aurangabad)
d) 4 x 10s + 9 Capsules of Sporidex - 500 (49) Capsules) B. No. 9121284, M/D : Jun/04, E/D - Feb/06, Mfg. by Ranbaxy Laboratories Limited, New Delhi - 110 020."
And therefore, the drugs were frozen and Form No.15 was issued to the petitioner and the petitioner was directed to produce the purchase bills for the above drugs and a notice was issued to the petitioner dated 18.6.2005, to disclose the source of acquisition of drugs. On 27.6.2005, Form no.15 was revoked and the drugs were seized in the presence of two witnesses. The respondent obtained an order for custody from the competent court on 30.12.2006. A notice under Sections 18(a), 18(b) and 22(1) of the Drugs and Cosmetics Act,1940 (Hereinafter referred to as the 'DC Act', for brevity) was issued to the petitioner to produce the purchase bills for the drugs seized. On 16.1.2007, the respondent addressed a letter 4 to the manufacturer of the drug by name Stemetil - M/s Nicholas Pyramid Limited. The authorised representative verified the control samples and seized the samples and he had given a statement and opined that the seized drugs were spurious, by his representation dated 14.2.2007 and after collecting further information of the spurious drugs from various other sources, such as, Packing Consultant of Meditab Specialities Private Limited, the Superintendent, Drugs Testing Laboratory, M/s Ranbaxy Laboratories and son, the proceedings were initiated by the respondent by filing a charge sheet against the accused for offences under section 18(a)(1) read with Section 17(B)(e) and 18(a), 18(b), 22(1)(cc)(a) punishable under section 27(c), 28, 28A, 22(3) of the DC Act, on the file of the Special Economic Offences Court, Bangalore.
3. The prosecution had examined two witnesses PWs.1 and 2. PW.2 was said to be the Drug Inspector, who is the complainant. The petitioner then filed an application under 5 Section 245(1) of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity) seeking discharge of the petitioner, mainly on the ground that the Drug Inspector B.N.Babu - PW.2 was not validly appointed as per Section 21 of the DC Act, since his appointment order was not published in the official gazette and that it is only as on 29.7.2010 that his name has been published in the gazette. Therefore, as on the date of the filing of the case, namely, 28.7.2007, or on the date the inspection was conducted, namely on 13.6.2005, the petitioner contends that he had no authority whatsoever, to seize the sample of drugs and had no jurisdiction to launch prosecution and to file a complaint against the petitioner. However, the court below, while noticing the admitted circumstance that the respondent's appointment was not duly gazetted as on the date he conducted the inspection, or on the date that the case was filed, has opined that it is a matter to be considered at the final stage of the proceedings and that the proceedings cannot be held to be 6 invalid or bad in law on account of the infirmity and the application was rejected. A revision petition having been filed, was also dismissed it is that which is under challenge in the present petition.
4. The learned Counsel for the petitioner would submit that the appointment of the respondent was not gazetted is an admitted circumstance and places reliance on two decisions, namely, State of Maharashtra vs. R.A.Chandawarkar, 1999 Crl.LJ 4449 and M/s Fizikem Laboratories Private Limited and another vs. The Drugs Inspector, Karimnagar and another, 2006 Crl.LJ 3090, to contend that this infirmity goes to the root of the matter and the court below was not justified in holding that notwithstanding the Drug Inspector's appointment not being duly gazetted, the matter would have to be considered on merits and that the infirmity, if any, could only be addressed at the final stage of the proceedings.
5. Though the learned State Public Prosecutor would seek to justify the order, the fact remains that Section 21 of the 7 DC Act enables an inspector, appointed under the notification published in the official gazette, to act as a public servant and therefore, compliance with the procedure as to the need for such notification being published in the Official gazette, is a must, for otherwise, he may not be deemed a gazetted officer and could not be considered as a public servant. Therefore, in view of the admitted circumstance that the petitioner's appointment was not duly gazetted as on the date of the inspection or as on the date he filed the case before the court, was certainly not authorised in the eye of law and hence, the proceedings would have to be set at naught.
Consequently, the petition is allowed. The proceedings before the Special Court for Economic Offences, Bangalore in CC No.718/2007 are quashed.
Sd/-
JUDGE nv