Patna High Court - Orders
Gyan Prakash vs The State Of Bihar & Ors on 24 July, 2014
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5699 of 2009
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Gyan Prakash S/o Late Bansihar Prasad resident of Muhalla Babunia Road
P.S. Siwan Dist Siwan
.... .... Petitioner/s
Versus
1. The State of Bihar
2. The Secretary, Department of Health, Government of Bihar, Patna
3. The Deputy Drug Controller-cum- Chief Licensing Authority, Directors
of Health Service, Bihar, Patna
4. The Drug Inspector, Civil Surgeon office, Siwan
5. Sri Prem Ranjan son of Sri Birendra Prasad Licensing Authority,
(Drugs) C/o Civil Surgeon-cum- CMO, Purnea Line Bazar, Purnea Dist.
Purnea
.... .... Respondent/s
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Appearance:
For the Petitioner/s : Mr. Raghav Prasad I, Advocate
For the State: Mr Manoj Kr. Ambastha GP 14
Mr Tripurari Nath Ambastha, AC to GP 14
For the Respondent 5 : Mr. Suraj Samdarshi, Advocate
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
10 24-07-20141. Heard learned counsel for the petitioner as well as learned counsels appearing for the State and private respondent.
2. Petitioner has prayed for issuance of writ in the nature of mandamus directing and commanding the respondents to pay to the petitioner a sum of Rs. 5,00000/- ( rupees five lacs) as compensation for harassing the petitioner without any valid basis for a period of nearly six years by filing Complaint Case No. CII- 207/2003 on the basis of a photo copy of the FIR of Siwan Town PS. Case No. 165/2002.
3. The brief fact, which lies to file this petition, is Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 2 that Sub Inspector of Town Police Station Siwan recorded his self statement on 22.10.2002 and on the basis of the aforesaid self statement, Siwan Town PS. Case No. 165/2002 under Sections 269, 270, 271, 274, 275, 276, 419, 420, 468, 470, 471, 475 of the IPC and 18 ( c )18 A of the Drugs and Cosmetics Act, 1940 was registered against the petitioner and four other named persons as well as 50 to 60 unknown persons. The aforesaid case was investigated and after completion of investigation, charge sheet was submitted. Subsequently, cognizance of the offence was also taken and petitioner and other accused were put on trial before the concerned court. In the meantime, respondent no 5 who was posted at Siwan as Drug Inspector filed Complaint Case No. CII- 207/2003 against the petitioner and others and in the aforesaid complaint case respondent no. 5 averred that on 22.10.2002 Sub Inspector of Town police station, Siwan conducted raid and seized spurious and adulterated drugs and subsequently, lodged Siwan Town PS. Case No. 165/2002. It has further been averred in the complaint petition that he was called by the officer in charge of Town Police Station and information regarding institution of the aforesaid case was given and thereafter, he discussed the aforesaid fact with the superior officers and gave information to the Drug Controller, Bihar, Patna vide letter no. 709 dated 28.10.2002 and, Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 3 thereafter, Secretary cum Deputy Drug Controller, Bihar, Patna ordered to launch prosecution against the petitioner and others vide letter no. 1466 (15) dated 12.12.2002 and accordingly, sanction letter was also issued and thereafter he consulted Public Prosecutor, Siwan and the Public Prosecutor vide letter no. 83 dated 27.03.2003 advised him to launch prosecution and thereafter he filed the above stated complaint case under Section 32(1) of the Drug and Cosmetics Act,1940. The court concerned took cognizance of the offence on the basis of the aforesaid complaint case.
4. Petitioner filed Cr. Misc. No. 47728 of 2007 against the order of cognizance taken in Complaint Case No. CII- 207/2003 and a co-ordinate bench of this Court vide order dated 17.03.2009 quashed cognizance order taken by the court concerned in Complaint Case No. CII-207/2003.
5. Learned counsel appearing for the petitioner submits that admittedly, respondent no. 5 did not make any raid and also did not make any search and seizure but he filed Complaint Case No. CII-207/2003 without adopting mandatory provisions of Drugs and Cosmetics Act. It is contended by him that, as a matter of fact, respondent no. 5, in collusion with other Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 4 respondents, filed the above stated complaint case with mala fide intention just to save the skin of the police who illegally lodged the case against the petitioner. Learned counsel refers a decision reported in 2000(2) PLJR, 324 (Core Health Care Limited, Ahmedabad vs. The State of Bihar & Ors.) and relies upon paragraphs 18 and 19 of the aforesaid judgment. Para 18 of the aforesaid judgment runs as follows:-
"Therefore, it is incumbent upon the Inspector while purporting to carry on inspection, test and analysis of the drug in question, to send a notice either to the petitioner Company or to its agent mentioned in paragraph 5 and also to send a sample of the same. A report has also to be sent to either the petitioner Company or its Agent mentioned in paragraph 5 of the writ petition. Admittedly, the said procedure has not been followed. Therefore, the entire procedure relating to seizure and analysis and test of the drugs in question have been made in a manner which is not contemplated in law".
Para 19 of the aforesaid judgment runs as follows:-
"These detailed procedures have been made under the provisions of the said Act with a purpose. The purpose is to give sudden safeguards to the manufacturer of the drugs in question from frivolous Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 5 complaints. The other purpose is to fix the responsibility upon persons who are engaged in spurious manufacture of drugs and it is expected that when those provisions have been made they should be followed by the authorities of the State before taking any punitive action against any offender who is alleged to be manufacturing spurious drugs. But in the instant case, those provisions have been completely violated. Having done so, the State cannot fasten on the petitioner Company the allegation of manufacturing spurious drugs".
6. Learned counsel for the petitioner submits that when statute mandates to follow certain provisions before institution of complaint case, the concerned officer is bound to follow mandatory provisions but admittedly, respondent no. 5 did not follow the mandatory provisions of the Act though he was aware about the provisions contained in the Act and with mala fide intention lodged the complaint case as a result whereof petitioner faced humiliation and harassment for more than six years. It is further contended by him that there is violation of Article 21 of the Constitution of India and fundamental right of the petitioner has been violated and therefore, this court should direct the respondents to pay damage for sufferings of the Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 6 petitioner.
7. On the other hand, learned counsel appearing for the State of Bihar submits that power to file complaint case in contravention of provision of Drugs and Cosmetics Act is delegated to the Drug Inspector by the statute itself and admittedly, at the time of filing of the complaint case, respondent no. 5 was notified as Drug Inspector who filed the complaint case in discharge of his official duty. It is further contended by him that if an act is done by a public servant in discharge of statutory function, order for damage of the aforesaid act cannot be passed. In support of his contention, he heavily relies upon a decision reported in 1965 SC 1039 (M/s. Kasturi Lal Ralia Ram Jain vs. the State of Uttar Pradesh) and particularly refers paragraph 21 of the judgment which runs as follows :-
"Thus, it is clear that this case recognizes a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 7 public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servants? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State's liability arising from tortious acts committed by public servants. That is why the clarity and precision with which this distinction was emphasized by Chief Justice Peacock as early 1861 has been recognized as a classic statement on this subject".Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 8
8. Learned counsel appearing for respondent no.5 submits that section 37 of the Drugs and Cosmetics Act, 1940 gives protection in respect of an act which has been done in good faith.
9. Having heard contentions of all the parties, I went though the record and decisions as well as provisions referred on behalf of the parties.
10. Siwan police raided the premises of one Pankaj Kumar Sah on 22.10.2002 and it is alleged that spurious drugs and apparatus for manufacturing adulterated drugs were seized. It is also an admitted position that respondent no.5 was not the member of the aforesaid raiding party. However, after raid the above stated Siwan Town PS. Case No. 165/2002 under various sections of the Indian Penal Code as well as of the Drugs and Cosmetics Act, 1940 was registered. It is admitted position that after submission of the charge sheet, petitioner and others were put on trial and trial of the aforesaid Siwan Town PS. Case No. 165/2002 is still pending. Furthermore, after institution of Siwan Town PS. Case No. 165/2002, respondent no.5 filed complaint case exercising his power delegated to him under the Drugs and Cosmetics Act, 1940. No doubt, respondent no.5 did not make any Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 9 raid, search and seizure and without complying with the mandatory provisions of the Drugs and Cosmetics Act, 1940 filed the above stated complaint case but the averments of the complaint petition reveal that higher official permitted and granted sanction for prosecution of the petitioner and others and in pursuance thereof, respondent no.5 filed the above stated case.
11. It is also an admitted position that cognizance taken in Complaint Case No. CII-207/2003 has been quashed by a coordinate bench of this court but the said bench observed in the order dated 17.03.2009 passed in Cr. Misc. No. 47728 of 2007 that sanction of statutory authority for the prosecution under the Drugs and Cosmetics Act referred to in para 8 of the complaint shall have its full effect in law, in so far as the police case is concerned. Furthermore, the order dated 17.03.2009 passed in Cr. Misc. No. 47728 of 2007 reflects that the petitioner did not raise any grievance against the institution of Siwan Town PS. Case No. 165/2002 at the time of hearing of Cr. Misc. No. 47728 of 2007. Therefore, in my view, when the petitioner did not raise any grievance in respect of institution of Siwan Town PS. Case No. 165/2002, then he can not say at this stage that Complaint Case No. CII-207/2003 was lodged by respondent no.5 with mala fide intention only attaching the copy of FIR and other documents of Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014 10 Siwan Town PS. Case No. 165/2002.
12. Moreover, admittedly, respondent no.5 was authorized to file complaint case by the statute and in exercise of the aforesaid power, he filed the above stated complaint case and therefore, it can not be said that respondent no.5 filed complaint case with mala fide intention. Section 37 of the Drugs and Cosmetics Act, 1940 clearly says that no suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act.
13. Therefore, in my view, this writ petition does not have any merit and must be dismissed on admission stage itself. Accordingly, this writ petition stands dismissed.
Shahid/- (Hemant Kumar Srivastava, J) U