Patna High Court
Om Prakash Agarwal vs S. Kullu, Addl. Deputy Commissioner, ... on 15 September, 1998
Equivalent citations: 1998(3)BLJR2148
JUDGMENT S.K. Chattopadhyaya, J.
1. The petitioner, invoking the writ jurisdiction of this Court, has prayed for quashing the entire criminal proceeding as well as the orders dated 11.9.1997 and 23.9.1997 issuing warrant of arrest and processes against him.
2. Some factual backgrounds are necessary to be portrayed before appreciating the arguments of the counsel for the parties : The Additional Deputy Commissioner, East Singhbhum, Chaibasa, respondent No. 1 submitted a written report to the Officer Incharge, Sadar police station drawing his attention to the fact that there was rumour in the air about spurious drugs being stored in the stores of the Civil Surgeon, Sadar Hospital. He requested the Civil Surgeon of the hospital to get the drugs lying in his store tested by the Government analyst. It so happened that on 16.4.1993, as the Drug Inspector of Chaibasa was not available in the headquarters, the Civil Surgeon wrote a letter to Sri Surjit Kumar Mukhopadhyaya. Drug Inspector of Jamshedpur to visit the store in question and take samples from the store. On such request being made said Mukhopadhyaya came down to Chaibasa on 17. 4.1993 and took samples of various drugs from the medicine store of the Civil Surgeon and also from the Sadar Hospital in presence of respondent No. 1, one Madan Sengupta, P.A. to the Deputy Commissioner, West Singhbum and some other gentlemen like the Civil Surgeon, Dy. S.P. and Store Incharge-cum-Medical Officer. Sri Mukhopadhyaya particularly took the sample of sulphaquandin tablets I.P. bearing batch number and date, after observing all the formalities as required under law. Samples were sent to the Govt. Analyst, Central, Indian Pharmacopia, Gaziabad (U.P.) for testing. The report of the Government Analyst revealed that the drug was not of standard quality and the samples of drugs was spurious inasmuch it gave negative test for sulphaquandin. Sri Mukhopadhyaya, the Drug Inspector requested in writing to the civil surgeon to disclose the name of the supplier (seller) and other details and on his request the civil surgeon, by his letter dated 13.10.93, disclosed the name of the seller and manufacturer who are:
1. M/s. Chem Tech Pharma, Lakhisarai, PS --Lakhisarai, Distt -- Munger.
2. Avon Laboratories, 529/A.l., G.T. Road P.O. and Mahesh, distt. Hoogly (W.B.).
Under this circumstance, respondent No. 1 informed the police that the aforesaid seller and manufacturer have committed offences under Sections 275 and 274 I.P.C. respectively and requested to take action against them. This information is dated 23.11.1993. The relevant documents have also been annexed with the written report. On the basis of the said report, the police registered a case under Sections 27/28 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act) read with Sections 275 and 274 of the Penal Code.
3. The investigation started and in course of investigation on the petitioner filed by the Investigating Officer, the learned Chief Judicial Magistrate issued warrant of arrest against the accused persons but in spite of that when the accused persons did not appear, the learned Magistrate issued distress warrant on the request made by the investigating agency.
4. Main contention of Mr. P.S. Dayal, learned Sr. Counsel for the petitioner is that in view of the decision of this Court in the case of the Hindustan Lever Ltd. v. State of Bihar and Ors. reported in 1997 (1) All PLR 56, the police is not empowered to register any F.I.R. and to investigate the case so as to submit charge-sheet under Section 173 Cr.P.C. Second contention is that the facts alleged in the complaint petition do not make out a case either under Sections 274 or 275 of the Indian Penal Code.
5. From the facts of the case, stated above, it is clear that on the rumour in the air the respondent No. 1 requested the civil surgeon to get the drugs/medicine analysed by a Government analyst and as the Drug Inspector of Chaibasa was not available at that time in the headquarters, on the request of the civil surgeon, the Drug Inspector of Jamshedpur seized certain samples of the drugs and got the same analysed by the Government analyst. U.P. the report submitted confirmed the suspicion which was in the air and, thereafter, respondent No. 1 informed the entire matter to the police requesting to take legal action. According to him the offence alleged to have been committed was punishable under the aforesaid sections of the Penal Code. It is to be borne in mind that respondent No. 1 did not ask the police to register any case under any of the punishing sections of the Drugs & Cosmetic Act. The police, out of its own, added some sections of the said Act. In my view, the same cannot be a basis to throw out the allegation on the ground that in view of Section 32 of the Act the police cannot register and investigate the case.
6. At this stage the provisions of Sections 274 and 275 of the Penal Code may be looked into which read thus:
274. Adulteration of drugs : Whoever adulterates any drug or medical preparation in such a manner as to lessen the efficacy or change the operation of such drug or medical preparation, or to make it noxious, intending that it shall be sold or used for, or knowing it to be likely that it will be sold or used for, any medicinal purpose, as if it has not undergone such adulteration, shall be punished with imprisonment of either description of a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
275. Sale of adulterated drugs:-Whoever knowing any drug or medical preparation to have been adulterated in such a manner as to lessen its efficacy, to change its operation, or to render it noxious, sells the same or offers or exposes it for sale, or issues it from any dispensary for medicinal purposes as unadulterated, or causes to be used for medicinal purposes by any person not knowing of the adulteration, shall be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.
7. From reading of the provisions conjointly, it is amply clear that any person who adulterates and sells any such adulterated drug or medicine is guilty of offence as contemplated under these sections. Thus, even assuming for the sake of argument that no offence is said to have been committed by the petitioner under Sections 27 and 28 of the Act but if the allegation made by respondent No. 1 are ultimately found to be true, the petitioners can be punished under the provisions of the Penal Code dehors the provisions of Drugs Act.
8. Section 32 of the Drugs and Cosmetic Act contemplate as follows;-
32. Cognizance of offence :-(1) No prosecution under this chapter shall be instituted except by an Inspector or by the person aggrieved or by a recognised 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 an person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter.
Thus Sub-clause (3) provides that if a person is said to have committed any offence which constitutes an offence against Chapter IV of the Act, he can be prosecuted under any other law and Section 32 cannot be a rider for such prosecution. So, if the respondent No. 1 has asked the police to take action against the petitioner under the provisions of Penal Code, by no stretch of imagination it can be said that only because the police has added Sections 27 and 28 of the Act in the formal FIR, the whole prosecution is bad in view of Section 32 of the Act.
9. Moreover, the investigation is still incomplete and final form is yet to be filed and cognizance is still to be taken. At this stage, in my view, the High Court will not be justified in quashing the whole prosecution which will amount to interfering investigation.
10. In the case of Hindustan Lever Ltd. (supra), the petitioners were sought to be prosecuted under Section 22(3) of the Act for contravening the provisions of Section 22(1)(ccc) of the Act. No where it was contended before this Court that the petitioner was being prosecuted under any other law. So, this Court had no occasion to deal with the provisions as laid down in Sub-clause (3) of the Act. Therefore, I am of the view that the facts and circumstances of the reported case is entirely different from the facts of the instant case.
11. Further Submission of Mr. Dayal that the allegations levelled against the petitioner do not constitute any offence under Sections 274 and 275 of the Penal Code, is not sustainable inasmush as the investigation is yet to reach its finality and so at this stage the High Court will not probe into the matter for coming to a conclusion as to whether the petitioner has or has not committed the offence alleged.
12. For the reasons stated above, I find no merit in this application which is accordingly, dismissed. The interim order dated 17.11.97 is vacated. The registry is directed to communicate the order to the concerned Court forthwith.