Jharkhand High Court
Sanjay Singh @ Sanjay Shankar Singh vs The State Of Jharkhand on 29 June, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1495 of 2020
1. Sanjay Singh @ Sanjay Shankar Singh
2. Brojo Mohan Pramanik
3. Rameshwar Mahato
4. Anil Ram
5. Anand Kumar
6. Manish Kumar
...... Petitioners
Versus
1.The State of Jharkhand
2.Poonam Tirkey ...... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Abhishek Krishna Gupta, Advocate Mr. Madan Mohan Prasad, Advocate Mr. Amit Kumar, Advocate For the State : Mr. Anup Pawan Topno, Advocate 05/Dated: 29/06/2022 Heard Mr. Abhishek Krishna Gupta, learned counsel for the petitioners and Mr. Anup Pawan Topno, learned counsel for the State.
2. This petition has been filed for setting aside F.I.R. being Bariatu P.S. Case No. 81/2018, chargesheet bearing No. 165/2018, cognizance order dated 17.09.2018 and order of framing charge dated 20.05.2019 including entire criminal proceeding in connection with Drugs & Cosmetics Case No. 01/2018, pending in the Court of learned A.J.C.-II, Ranchi.
3. On the basis of written report of O.P. No. 2, F.I.R. was lodged alleging therein that on 17.03.2018 Joint Director (Drug), State of Jharkhand, Ranchi informed the informant on the basis of information provided by one Atul Gera of Voluntary Blood Organization that M/s Birsa Blood Bank was collecting illegal blood and blood transfusion was being done and on the basis of instruction of Joint Director (Drug), State of Jharkhand, Ranchi, Pratibha Jha (Drug Inspector, Ranchi-VI) and the informant (O.P. No. 2) reached there at 12.30 P.M on 17.03.2018 for joint inspection. On inspection, it was found that no blood transfusion was taking place therein and this information was provided to the Joint Director (Drug). Atul Gera gave inputs to Smt. Pratibha Jha on her phone that blood transfusion was taking place in a room outside the Blook bank. On such information both reached there and found that blood was 2 transfused to one patient namely, Sri Baleshwar Prasad. Again Drug Licence of M/s Birsa Blood Bank was inspected. The blood details that was transfused to the patient Baleshwar Prasad was taken from Md. Asad Arfi dated 15.03.2018 and the same was mentioned at Donar Register at CI. No. 427 wherein date of collection was 17.03.2018. The mandatory test for collected blood was inspected and connected Register was seen, and it was found that the blood was put to test on 17.03.2018. The test of presence of Heptasis and HIV of the blood was done by Rapid Kit but not by Elisa Reader. The date of issue in the Issuance Register was 17.03.2018. On the basis of above facts it was clear that there was difference in the date of blood collection as well as its entry in the Register. The test of blood and its transfusion dated 17.3.2018 was being done without the presence of Medical Officer. In the meantime, a raid was conducted by the S.D.O., Sadar within the premises wherein blood transfusion was being done at 6.30 P.M. In the room wherein blood transfusion was done empty used blood bag, scalp vein set, blood transfusion set and other medicines were found. The purchase record of these items was demanded but was not provided. For the purpose of evidence, all registers of M/s Birsa Blood bank were seized in presence of two independent witnesses. Thereafter M/s Birsa Blood Bank and adjoining room were sealed by the S.D.O. No certificate was produced at the place wherein blood transfusion was being done under the Clinical Establishment (Registration and Regulation) Act. Therefore, it was requested to lodge F.I.R. against the partners of M/s Birsa Blood Bank under sections 18(a) (i)/18(a)(vi)/18(c) of the Drugs and Cosmetics Act, 1940 and Rules 1945 as well as under sections 329 and 338 of the I.P.C. On the basis of the these allegations, F.I.R. being Bariatu P.S. Case No. 81/2018 dated 17.03.2018 was registered under sections 329/338/34 of the I.P.C. and under section 18(a) (i)/18(a)(vi)/18(c) of the Drugs and Cosmetics Act, 1940 against the petitioners and others.
4. Mr. Abhishek Krishna Gupta, learned counsel for the petitioners submits that the case is arising out of transfusion of blood to one of the needy. He submits that cognizance has been taken by the learned court below under sections 329/338/34 of the Indian Penal Code and under sections 18(a)(1)/18(a) (vi)/18(c) of 3 the Drugs and Cosmetics Act, 1940, and under sections 41(1) and 41(2) of the Clinical Establishment Act, 2010. He further submits that that in view of section 32 of the Drugs and Cosmetics Act, 1940, F.I.R. is not maintainable and only complaint can be filed as held by Hon'ble Supreme Court in the case of "Union of India Vs. Ashok Kumar Sharma & Others" reported in 2020 SCC Online SC 683 wherein para 162 the Hon'ble Supreme Court has held as under:-
"162. 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."
5. Learned counsel for the petitioners further submits that in view of section 2(d) r/w section 2(o) of the Clinical Establishment (Registration & Regulation) Act, 2010 blood was being transfused under emergency medical condition as a needy was having B-Negative blood which is rarely found. He further submits that ingredient 4 of sections 329 and 338 I.P.C. is not made out. According to him as the special Act is there, provision of I.P.C. will not apply.
6. Mr. Anup Pawan Topno, learned counsel for the State submits that the petitioner was found to transfuse blood illegally that is why F.I.R. has been lodged. He further submits that if the penal sections are there, F.I.R. is maintainable.
7. In view of the aforesaid facts and considering the submissions of the learned counsel for the parties, the Court has gone through the materials on record. The Court finds that the statement of victim's son was recorded by the Drug Inspector-O.P. No. 2 in which the son of the victim has stated that blood group B- Negative is rarely found and his father was required to transfuse the same group as his hemoglobin was down frequently and doctor advised for further treatment hemoglobin must be maintained and thereafter, treatment will continue, that is why he has taken his father for transfusion. On the basis of his statement, F.I.R. has been lodged. It has been held in the case of "Ashok Kumar Sharma(supra) that the case arising out of under section 32 of the Drugs and Cosmetics Act, F.I.R. is not maintainable.
8. Section 329 I.P.C. speaks about voluntarily causing grievous hurt to extort property , or to constrain to an illegal act. Looking into the F.I.R. the ingredient of Section 329 I.P.C. is not made out.
9. Section 338 I.P.C. is with regard to cause grievous hurt by act endangering life or personal safety of others. In the light of 2(d) r/w section 2(o) of the Clinical Establishment (Registration & Regulation) Act, 2010, the petitioner who was taking effort to save the life of a needy and there is no allegation of hurt by act endangering life. Thus ingredient of section 338 I.P.C. is not attracted in the case in hand.
10. It is well settled that if special law is there the case is required to be proceeded under that law and not under the penal sections. Although charge has been framed in this case. However, this Court sitting under section 482 Cr.P.C. comes to the conclusion that allowing the proceeding to be continued, will amount the abuse of process of law and that power can be exercised at any stage. Reference may be 5 made to the judgement in the case of " Anand Kumar Mohatta Vs. State of (NCT of Delhi), reported in (2019)11 SCC 706 wherein para 14, 15 and 16 the Hon'ble Supreme Court has held as under:-
"14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge-sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat. In Joseph Salvaraj A.3, this Court while deciding the question whether the High Court could entertain the Section 482 petition for quashing of FIR, when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed: (SCC p. 63, para 16) "16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge-sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not."
15. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 CrPC and that this Court is hearing an appeal from an order under Section 482 CrPC. Section 482 CrPC reads as follows:
"482. Saving of inherent powers of the High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."
16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."
11. In view of the aforesaid facts, F.I.R. being Bariatu P.S. Case No. 81/2018, chargesheet bearing No. 165/2018, cognizance order dated 17.09.2018 and order of framing charge dated 20.05.2019 including entire criminal proceeding in connection with Drugs & Cosmetics Case No. 01/2018, pending in the Court of learned A.J.C.-II, Ranchi, are hereby quashed.
12. This criminal miscellaneous petition stands allowed and disposed of. Pending I.A., if any stands disposed of. Interim order dated 24.09.2020 is vacated.
(Sanjay Kumar Dwivedi, J.) Satyarthi/