Allahabad High Court
Dr. Shiv Kumar Agarwal vs State Of U.P. And Anr on 16 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:113863 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (Sl. No. 3002) Court No. - 79 Case :- APPLICATION U/S 482 No. - 18201 of 2019 Applicant :- Dr. Shiv Kumar Agarwal Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Mahendra Pratap,R.K. Mishra Counsel for Opposite Party :- G.A. Connected with Case :- APPLICATION U/S 482 No. - 14702 of 2019 Applicant :- Har Charan Singh Gautam Opposite Party :- State of U.P. and Another Counsel for Applicant :- R.K. Mishra Counsel for Opposite Party :- G.A. and Case :- APPLICATION U/S 482 No. - 18197 of 2019 Applicant :- Hari Shanker And 3 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Mahendra Pratap,R.K. Mishra Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
1. Heard Shri R. K. Mishra, learned counsel for the applicants in all the above three cases and Shri Pankaj Srivastava assisted by Shri Rajeev Kumar Sonkar, learned counsel for the State.
2. All the above three connected applications under section 482 Cr.P.C. have been filed seeking quashing of the charge sheet dated 7.9.2017 as well as the entire proceedings of Special Case No. 18 of 2019 (State of U.P. Vs. Zakir Siddiqui and others) arising out of Case Crime No. 330 of 2017 under section 18/27 Drugs and Cosmetic Act, 1940 and Sections 269, 327, 419, 420 and 120-B IPC police station Kotwali District Pilibhit pending in the court of Addl. District andSessions Judge-VII, Bareilly.
3. On 7.5.2019 a coordinate Bench of this Court has passed the following order in the lead case and the similar orders were also passed in the above connected matters, which have been filed by co-accused persons arising out of the same FIR, therefore, all the above three matters are being heard and decided together by this common order:
"Heard Shri Mahendra Pratap, learned counsel for the applicant and learned Additional Government Advocate representing the State and perused the materials available on record.
This application under Section 482 Cr.P.C. has been preferred by the applicant for quashing of the charge sheet dated 07.09.2017 as well as entire proceedings of Special Case No. 18 of 2019 (State of U.P. vs Zakir Siddiqui and others) arising out of Case Crime No. 330 of 2017, under section 18/27 Drugs and Cosmetic Act, 1940 and sections 269, 327, 419, 420 and 120-B IPC, Police Station Kotwali, District Pilibhit pending in the court of Additional District & Sessions Judge-VII, Bareilly.
As per the prosecution case, opposite party No. 2 (In-charge Inspector of Kotwali, district Pillibhit) lodged FIR on 14.07.2017 registered as Case Crime No. 330 of 2017, under Section 18/27 Drugs and Cosmetic Act, 1940 and sections 269, 327, 419, 420 IPC, against the applicant and seven other co-accused persons. After investigation, the Investigating Officer submitted charge sheet dated 07.09.2017, which is impugned in the present application.
Assailing the impugned charge sheet, learned counsel for the applicant submitted that the initiation of criminal proceedings, under the facts and circumstances of the present case, is barred by Section 32 of the Drugs and Cosmetic Act, because opposite party No. 2/informant, who has lodged the impugned FIR dated 14.07.2017 of this case, is not competent to institute criminal proceedings against the applicant in view of Section 21 of Drugs and Cosmetic Act. Sections 21 and 32 of the said Act are reads as under:-
"21. Inspectors-
(1) The Central Government or a State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be prescribed.
(2) The powers which may be exercised by an Inspector and the duties which may be performed by him, the drugs or classes of drugs or cosmetics or classes of cosmetics in relation to which and the conditions limitations or restrictions subject to which, such powers and duties may be exercised or performed shall be such as may be prescribed.
(3) No person who has any financial interest in the import, manufacture or sale of drugs or cosmetics] shall be appointed to be an Inspector under this section.
(4) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, and shall be officially sub-ordinate to such authority, having the prescribed qualifications,] as the Government appointment him may specify in this behalf."
"32. Cognizance of offences-
(1) No prosecution under this Chapter shall be instituted except by an Inspector or by the person 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.
(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."
Learned counsel for the applicant submitted that the word 'Inspector' as mentioned in Section 32 (1)(a) of Drugs and Cosmetic Act has been defined under Section 3(e) of the Act, which reads as under:-
"3(e) Inspector" means
(i) in relation to Ayurvedic, Siddha or Unani drug, an Inspector appointed by the Central Government or a State Government under section 33G; and
(ii) in relation to any other drug or cosmetic an Inspector appointed by the Central Government or State Government under Section 21."
He has further submitted that the specific stand has been taken by the applicant in para 32 of the application that opposite party No. 2/In-charge Inspector of the police station Kotwali, district Pillibhit, is not an Inspector, as defined under the Act, so he was not competent to institute impugned criminal proceedings against the applicant. Learned counsel for the applicant further placed reliance on the provisions of Section 5 of the Cr.P.C. by contending that Drugs and Cosmetics Act is an Special Act, therefore provisions of Cr.P.C. will not effect any special statute or any local law. In other words, where special provisions have been provided for any particular thing under special law, the general provision of Cr.P.C. to that extent will not be applicable. The provisions of special statute will prevail over general provisions of the Code of Criminal Procedure in case of any conflict. The section 5 of Code of Criminal Procedure read as under:-
"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."
In support of his submission learned counsel for the applicant also placed reliance on the judgment of Apex Court in the case of Suresh Nanda vs. C.B.I, 2008 (3) SCC 174, where it has been held that the provision of Special Act prevail over the general provisions of the code of criminal procedure.
Learned counsel for the applicant has further placed reliance upon the judgment of Patna High Court in the case of Manju Kumari and another vs State of Bihar and others, 2006 Cr.L.J 3014 and the judgment of Bombay High Court in Rajendra vs State of Maharashtra and another, (Criminal Writ Petition No. 846 of 2016 decided on 10.10.2016).
In view of above matter requires consideration.
Learned A.G.A. has accepted notice on behalf of opposite party No. 1.
Issue notice to opposite party No. 2, returnable at an early date.
Steps be taken within a week.
Learned A.G.A. and opposite party No. 2 may file their counter affidavits within three weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List this case in the second week of July, 2019 before appropriate Bench.
Till the next date of listing, no coercive action shall be taken against the applicant in the above mentioned case."
4. The facts, in brief, are that the opposite party no. 2-Incharge Inspector, Kotwali, District Pilibhit has lodged an FIR on 14.7.2017 which was registered as Case Crime No. 330 of 2017 under section 18/27 Drugs and Cosmetic Act, 1940 and Sections 269, 327, 419, 420 IPC against the applicant-Dr. Shiv Kumar Agarwal and seven other co-accused persons. After investigation, a charge sheet has also been submitted by the police on 7.9.2017, which is impugned in the instant application.
5. Learned counsel for the applicants submits that in view of the elaborate judgement of the Apex Court in the case of Union of India Vs. Ashok Kumar Sharma) (2021) 12 SCC 674, the entire controversy has already been settled by the Apex Court in the following term:
"150. Thus, we may cull out our conclusions/directions as follows:
I. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the CrPC, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same.
II. There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated under Section 32(3) of the Act, i.e., if he has committed any cognizable offence under any other law.
III. Having regard to the scheme of the CrPC and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR under Section 154 of the CrPC, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the CrPC.
IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of CrPC.
V. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act. We find substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard.
VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment.
VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the CrPC, but also immediately report the arrests to their superior Officers."
6. In view of the aforesaid judgement of the Apex Court in the case of Ashok Kumar Sharma (supra) being followed by the Apex Court in a recent judgement dated 19.3.2024 passed in Crl. Appeal arising out of SLP (Criminal) No. 10373 of 2018 (Rakesh Kumar Vs. The State of Bihar and another), no FIR for prosecution of the offences under the provisions of Drugs and Cosmetic Act, 1940 can be lodged in the police station and it is only the Drug Inspector who has been empowered to investigate the offences under the provisions of Drugs and Cosmetic Act, 1940 and lodge the complaint and the power of arrest has also been given to the Drug Inspector instead of police authorities.
7. Learned A.G.A. for the State could not rebut the above legal position settled by the Apex Court.
8. In view of the above, all the above applications are allowed and the entire criminal proceedings of Special Case No. 18 of 2019 (State of U.P. vs Zakir Siddiqui and others) arising out of Case Crime No. 330 of 2017, under section 18/27 Drugs and Cosmetic Act, 1940 and sections 269, 327, 419, 420 and 120-B IPC, Police Station Kotwali, District Pilibhit pending in the court of Additional District & Sessions Judge-VII, Bareilly and the impugned charge sheet dated 7.9.2017 are hereby quashed in the light of the judgements of the Supreme Court in the case of Ashok Kumar Sharma (supra) and Rakesh Kumar (supra). However, it will be open to the Drug Inspector concerned to proceed in the matter in accordance with law, in terms of directions/conclusions no. (V) and (VI) issued in the judgement of Ashok Kumar Sharma (Supra).
Order Date :- 16.7.2024 o.k.
(Anish Kumar Gupta, J)