Patna High Court - Orders
Kamlesh Kumar vs The State Of Bihar on 17 July, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.27796 of 2010
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Kamlesh Kumar, son of Mr. Baleshwar Lal, resident of B.L. Place, Sharda
Prasad Ghose Lane, Govind Mitra Road, Patna- 800004.
.... .... Petitioner.
Versus
The State of Bihar .... Opposite Party.
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Appearance :
For the Petitioner : Mr. Md. Fazal Rahman, Advocate.
Mr. Anisur Rahman, Advocate.
For the Opposite Party : Mr. Md. Arif, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
C.A.V. ORDER
4. 17-07-2012Petitioner has challenged order dated 19.11.2008 passed by Chief Judicial Magistrate, Patna whereby and whereunder cognizance has been taken for an offence punishable under Sections 274, 420, 467, 468, 471, 414, 120B of the Indian Penal Code and 27(A) 28, 28(A) of the Drugs and Cosmetic Act along with summoning of petitioner including others to face trial thereof.
On an application furnished by L.K. Jha Manager of Ravion Pharmaceutical Private Ltd. disclosing therein that spurious medicines of his company are being sold (Oxsa MS), a raiding party was constituted and on pointing out by the aforesaid L.K. Jha Shop of Bihar Drug House, Vashanavi Pharmaceutical were searched and the medicines, as per seizure list, were recovered. That the owners of the shop have confessed. Subsequently, to that another shop relating to Rakesh Kumar, Sanjay Kumar, Sanjay Gupta, Neeraj Kumar, Pankaj Kumar Sinha, Kamlesh Kumar was also raided from where physician samples and other medicines were seized. Save and except Amit -2- Pharma none possessed valid license. On query they further said that Uttam from Jamshedpur, Sunil from Masaurdhi, Sanjay from Katihar, Sudhansu from Begusarai used to supply the medicines. After registration of the case investigation commenced followed with submission of charge sheet and on the basis thereof, petitioner including others has been summoned on account of which the order impugned has been put under challenge.
It has been submitted on behalf of the petitioner that case of petitioner stood on different footing than that of other co-accused. It has further been submitted that petitioner happens to be proprietor of Bihar Drug House located at S.P. Ghose Lane and during course of raid, as per seizure list, five kind of medicines were seized. So far allegation is concerned Mr. L.K. jha of Ravioan Company had complained with regard to his Product Oxa-m suspension. During course of investigation, seized medicines were sent for test before public analyst who had reported that all the medicines were genuine and of standard quality which was communicated by the Drug Inspector to the I.O. vide letter No.610 dated 07-08-2003 (Annexure-2). The aforesaid letter contained test report conducted by Bihar Drugs Control Laboratory. But the Investigating Authority, by passing the same with the reason best known to the Investigating Authority, submitted charge sheet against the petitioner also. So, submitted that none of the sections whereunder cognizance has been taken is applicable not these happens to be justification in getting the petitioner also summoned to fact trial. -3-
With regard to application of Drugs and Cosmetic Act, it has been submitted that the raid was not conducted by the competent authority as defined under Drugs and Cosmetic Act hence the search and seizure followed with registration of the case leading to investigation, submission of charge sheet and taking of cognizance happens to be bad as well as contrary to the law. To support his plea, the learned counsel for the petitioner referred 2005(3) PLJR page 662, 2006 (2) PLJR page 549, 2007 (2) PLJR 724, 2009 (1) PLJR 860 as well as unreported judgment of Division Bench passed in connection with Cr.W.J.C. No.719/1998 along with Cr. Misc. No.808 of 1998.
At the other hand, learned P.P. opposed the prayer and submitted that, so far application of Drugs and Cosmetic Act is concerned, there is bar. So far presence of offence covered under Section Indian Penal Code is concerned that is permissible and to that extent, the plea of the petitioner happens to be non-maintainable.
Whatever allegation has been alleged incorporating penal provision of the Indian Penal Code as well as Drugs and Cosmetic Act is in the background of the fact that there happens to be recovery of medicines, for which the prosecution alleges to be spurious. From Annexure-2 it is evident that the Drug Inspector already communicated to the I.O. regarding report submitted by the Bihar Drug Control Laboratory negativeting the aforesaid allegation. The plea of medicine to be spurious has been uprooted by the competent authority so designated by the prosecution itself then in that circumstance, -4- possession of the aforesaid medicines is not going to attract any of the provisions of either the Indian Penal Code or under Drugs and Cosmetic Act where under cognizance has been taken..
Apart from this, under Drugs and Cosmetic Act only the Drug Inspectors are authorized to make a search, seizure as provided under Section 22 of the Act. As per section 32 of the act, no prosecution will survive unless the same appears to be launched by the Inspector, person aggrieved or by a recognized association. As a result of which the courts are precluded to take cognizance when the prosecution has been launched by others than the aforesaid competent recognized authority/institution. The legal point has already been settled at rest as reported in 1997(1) All. PLR 56 (The Hindustan Liver Ltd. Vs. State of Bihar & Ors.). Same view has also been taken in Cr.W.J.C. No.719/1998, Cr. Misc. No.808/1998.
Thus, the order of cognizance and summoning of petitioner by the order impugned (to the extent of petitioner) appears to be contrary to the spirit of law and is accordingly set aside to that extent. Petition is allowed.
(Aditya Kumar Trivedi, J) PN/-