Karnataka High Court
Vithal S/O Madan Biradar vs The State Of Karnataka on 14 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201185/2021
BETWEEN:
SRI. VITHAL S/O MADAN BIRADAR
AGED ABOUT 26 YEARS, OCC: MR,
R/O DYABERI,
DIST. VIJAYPUR.
... PETITIONER
(BY SRI S.S.MAMADAPUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH GOLGUMBAZ PS
REP BY ITS STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT BUILDING,
KALABURAGI-585107.
... RESPONDENT
(BY SRI GURURAJ V.HASILKAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO QUASH THE FIR
REGISTERED BY THE RESPONDENT POLICE IN CRIME
NO.39/2021 OF GOLGUMBAZ CIRCLE P.S FOR THE OFFENCE
PUNISHABLE UNDER SECTION 420 R/W SEC. 34 OF IPC AND
SECTION 18(c) OF THE DRUGS AND COSMETICS ACT AND
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DRUGS (PRICE CONTORL) ORDER 2013 PENDING ON THE FILE
OF THE I-ADDL. CIVIL JUDGE (JD) AND JMFC, VIJAYAPUR.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C., praying this Court to quash the FIR registered by the respondent police in Crime No.39/2021 for the offence punishable under Section 420 read with Section 34 of IPC and Section 18(C) of Drugs and Cosmetics Act, 1940 and Drugs (Price Control) Order 2013 pending on the file of I- Additional Civil Judge, (J.D.), and JMFC Vijayapura.
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the State.
3. The factual matrix of the case is that based on the complaint lodged by the Assistant Drugs Controller Office of Assistant Controller, Vijayapur on 01.05.2021, the respondent police have registered a case for the above 3 offences. The allegation is that with an intention to cheat the Covid-19 patients and their relatives unauthorisedly obtained Remdesivir Injection meant for the patients in Government Hospital and this petitioner was selling the same in the black market at higher price in order to make wrongful gain and thereby cheating the Government as well as the Covid-19 patients.
4. The learned counsel for the petitioner vehemently contended that very registration of the case against the petitioner is arbitrary, illegal and not tenable. The registration of FIR is not contemplated under the provisions of the Drugs and Cosmetics Act, 1940 (hereinafter referred as 'the Act' for short). The proper course is to initiate action under the provisions of the Act is to file a private complaint that too by prescribed authority. Hence, it is a fit case to exercise power under Section 482 of Cr.P.C. The respondent police do not have any jurisdiction to investigate into the offence committed under the provisions of the Act. The power of investigation 4 into an offence punishable under the Act is conferred upon the Drugs Inspector who in turn has to follow the provisions as contemplated under sections 22 and 23 of the Act. The registration of FIR under Section 154 of Cr.P.C., by the respondent police is directly in contravention of the principles laid down by the Hon'ble Apex Court in the case of Union of India vs. Ashok Kumar Sharma and Others reported in (2020) AIR SC 5274 wherein the Hon'ble Apex Court held that respondent Police has no jurisdiction to register the FIR. The learned counsel would contend that the respondents have not followed the mandatory procedure as contemplated under Section 22, 23 and 32 of the Act. He would submit that with an oblique motive, intentionally invoked the provision of section 420 of IPC. The sum and substance of the argument of the learned counsel for the petitioner is that, FIR is not permissible and police cannot investigate the matter and Drugs Inspector only can conduct the investigation and to file the complaint before the proper Court. By relying upon the judgment in the case 5 of Ashok Kumar Sharma referred supra, he brought to the notice of this Court paragaph-150 wherein the Hon'ble Apex Court has given directions and culled out in the operative portion that in view of Section 32 of the Act and also the scheme of Cr.P.C., the police officer cannot prosecute the offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same and police officer cannot register an FIR under Section 154 of the Cr.P.C., in regard to cognizable offences under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence.
5. The learned counsel relied upon the judgment of the Patna High Court in the case of M/s Torque Pharmaceuticals Pvt. Ltd., and Another vs. State of Bihar through Deptt. Of Health, Govt. of Bihar and Others reported in 2013(2) Crimes 616 (Pat.) wherein also the Patna High Court held that police officers are excluded for the purpose of instituting prosecution under Drugs and Cosmetics Act, 1940.
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6. The learned counsel relied upon the judgment of this Court in the case of Narapathkumar S/o Duragchandaji Bhandari vs. State of Karnataka reported in 2020 (2) AKR 812 and brought to the notice of this Court paragraph-7 wherein it is observed only in order to avoid permission under Section 155(2) of Cr.P.C., the offence under Section 420 of IPC is invoked. The learned counsel would submit that in this case also offence under Section 420 of IPC is invoked and hence, it requires interference of this Court.
7. Per contra, learned High Court Government Pleader would submit that in the case on hand the offences under Section Drugs and Cosmetics Act and the offence punishable under Section Indian Penal Code are also invoked. Hence, there is no bar to institute the complaint and police can register the case.
8. Having heard the learned counsel for the petitioner and learned High Court Government Pleader, 7 admittedly, the Drugs Inspector has given the complaint to the police vide complaint dated 01.05.2021 and based on the same seizure was done by the police prior to the registration of FIR. No doubt, the offences invoked under the Act is cognizable offences, it is settled law that police cannot prosecute the matter and even the Hon'ble Apex Court in the judgment of Ashok Sharma referred supra has categorically held that in view of section 32 of the Act and also scheme of Criminal Procedure Code, the Police Officer cannot prosecute the offenders in regard to such offences. Only the persons mentioned in Section 32 of the Act are entitled to do the same and also observed that 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. But having regard to the scheme of Code of Criminal Procedure and also 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 8 Police Officer cannot register an FIR under section 154 of the Cr.P.C., in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of Cr.P.C.
9. However, Hon'ble Apex Court held in regard to the provisions of Section 22(1)(d) of the Act that an arrest can be made by the Drugs Inspector in regard to cognizable offence falling under Chapter-IV of the Act without any warrant and otherwise treating it as a cognizable offence. However, it is held that he is bound by the law as laid down in D.K. Basu's case and to follow the provisions of Cr.P.C. The Hon'ble Apex Court further observed in regard to power of arrest and made it clear that Police Officer do not have powers to arrest in respect of cognizable offence under Chapter-IV of the Act will operate with effect from the date of the judgment and this judgment was delivered on 28.08.2020. In the case on hand, the case has been registered subsequent to the judgment passed by the Hon'ble Apex Court i.e., on 9 01.05.2021 and hence, the judgment of the Hon'ble Apex Court aptly applicable to the case on hand which has been relied upon by the petitioner' counsel.
10. It is also important to note that Section 32 (1)(d) of the Act is very clear that prosecution has to be launched under Section 32 of the Act and section 32 (2) also says that no Court inferior to that of a Court of Session shall try an offence punishable under this Chapter and the same also to be prosecuted by the only authorised person who has been authorised but in this Case, the complaint is given by the Drugs Inspector is not launched before the concerned Court as envisaged under section 32 of the Act instead of complaint is given to the Police Officer and Police Officer investigated the matter and hence, there is clear bar under Section 32 of the Act as held by the Hon'ble Apex Court.
11. This Court in the order passed in Criminal Petition No.919/2020 dated 24.03.2021 elaborately discussed with regard to launching of the case by the 10 prosecution when the offence invoked under Section 18 of the Act, the same has to be launched under Section 32 of the Act. In the case on hand, the police initiated the proceedings by registering the FIR and based on the complaint of the Drugs inspector, the police have taken up the matter and now the matter is under the crime stage, and not yet filed the final report under Section 173 of Cr.P.C., Hence, it is a fit case to invoke section 482 of Cr.P.C., as Police Officer cannot proceed in the matter since there is bar under Section 32 of the Act and the Drugs Inspector who is authorised can proceed against the petitioner invoking section 32 of the Act.
12. In view of the observations made above, I pass the following:
ORDER The petition is allowed.
The criminal prosecution launched by the Police Officer in respect of crime No.39/2021 for the offences punishable under Section 420 read with Section 34 of IPC 11 and under Section 18(C) of the Drugs and Cosmetics Act and Drugs (Price Control) Order, 2013 is hereby quashed.
However, liberty is given to the Drugs Inspector to proceed in accordance with law invoking the jurisdiction under Section 32 of the Act.
Sd/-
JUDGE VNR