Jaya Jain vs State Of U.P. And 2 Others
2023 Latest Caselaw 12511 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Reserved on 31.03.2023
 
Delivered on 24.04.2023
 
Court No. - 46
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 4947 of 2023
 
Petitioner :- Jaya Jain
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rohan Gupta
 
Counsel for Respondent :- G.A.
 
Connected with
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 4949 of 2023
 
Petitioner :- Sachin Jain
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rohan Gupta
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Ms. Nand Prabha Shukla,J.

Heard learned counsel for the petitioner and learned AGA.

Both these writ petitions arise out of same FIR and, therefore, they have been heard and are being decided together.

The writ petitions seek quashing of the first information report dated 02.03.2023 giving rise to Case Crime No.92 of 2023, under Sections 274, 275 & 276 of I.P.C. and Section 17, 17(a), 17(b) of the Drugs and Cosmetics Act, 1940, Police Station- Phase-3 Sector 71 Noida, Noida Commissionerate, District Gautam Buddh Nagar.

The contention of learned counsel for the petitioner is that the FIR has been lodged on the basis of Test Analysis Report dated 14.01.2023 of the Govt. Analyst, Regional Drugs Testing Laboratory, Chandigarh. This test report is alleged to pertain to "DOK-1 Max Syrup" and 'Ambroxol Hydrochloride Syrup (Ambronol Syrup)'.

It has also vehemently urged that the report merely states that the drugs on analysis were found 'not of standard quality'.

The first submission is that the report of the Drug Analyst would attract Section 17-A and 17-B of the Act of 1940 but the FIR has been registered under Section 17, 17(a) and 17(b) of the Act.

The second contention is that in the complaint filed contains no allegations as regards the facts which would constitute the offence alleged. In any case, the test analyst report does not state that the drugs upon analysis were found adulterated or spurious.

It is next contended that the Govt. Analysts' Report is not conclusive and an opportunity is required to be given to controvert the report. It is only thereafter that the report becomes final.

It has also been submitted that infringement of Section 17, 17(a) and 17(b) of the Drugs and Cosmetics Act are not cognizable offences.

Relying upon the decision of the Apex Court in Union of India Vs. Ashok Kumar Sharma, it has been submitted that an offence under Chapter IV of the Act can only be prosecuted by means of a complaint by a Drug Inspector and the police cannot lodge an FIR in that regard nor can the police prosecute offenders regarding such an offence. For the same reason, the police officers do not have any power to arrest.

It is next contended that no offence has been committed within the territorial jurisdiction of the concerned police station as the drugs in question were meant exclusively for export and were not to be sold internally. Therefore, no offence has been committed in India.

It is next contended that the petitioners are merely Directors in Marion Biotech Pvt. Ltd., which company has not been arrayed in the FIR. The company manufacturing the allegedly sub-standard drug was in any case a necessary party and in its absence also the FIR is not sustainable.

It is also sought to be contended that there is no allegation in the FIR insofar as the role of the petitioners, the Directors in Marion Biotech Pvt. Ltd. is concerned, which is relevant because a Director in a case of an offence by a company must be in charge and responsible for the conduct of the business of the company and the offence was committed within his or her knowledge. No knowledge, consent or connivance of the petitioners has been alleged in the FIR.

Learned AGA on the other hand has submitted that the FIR has been lodged as the drugs manufactured by the company were no doubt ment for export and were duly exported to Kazakhstan where 54 children are said to have been died after consuming the drugs in issue. The search was conducted and specimen of the drugs were obtained and tested in relation to those deaths.

We have considered the submissions made by learned counsel for the parties and perused the record.

Insofar as the first submission of counsel for the petitioner noticed herein above is concerned, it may be noticed that in the body of the FIR the sections mentioned as 17-A & 17-B but in the column 2 of the FIR they have been transcribed as 17(a) and 17(b), which appears to be a typographical error.

The judgment cited by learned counsel for the petitioner has merely been held that insofar as an offence falling within Chapter IV of the Act is concerned, the prosecution can be lodged only by an Inspector. The word Inspector has been defined under the Drugs and Cosmetics Act in Section 3(e)(ii), which is relevant for the purposes of the case, reads as follows:-

"in relation to any other drugs or cosmetics, an inspector appointed by the Central Government or a State Government under Section 21."

This definition in our considered opinion, will take the word 'inspector occurring in Section 32 of the Act, which deals with cognizance of offence beyond the purview of an Inspector of Police.

The FIR definitely alleges to have been lodged by a Drug Inspector namely an Inspector specified in Section 32 of the Act.

Moreover, sub-section 3 of Section 32 provides that prosecution under the provisions of the Drugs and Cosmetics Act, 1940 as specified under Chapter IV of the Act, shall not preclude prosecution of a person under any other law for any act or omission, which constitutes also an offence under Chapter IV.

The other sections which have been invoked in the impugned FIR are Sections 274, 275 and 276 of the Indian Penal Code. In view of Section 32(3), such prosecution is permitted. However, these three sections are non cognizable and bailable offences under the Indian Penal Code. It is settled law that no first information report can be lodged regarding a non cognizable offence and that prosecution is permissible only by means of a complaint before a Magistrate or a competent court.

Therefore, in our considered opinion, the FIR should not have been registered by the police as the offences under the Indian Penal Code are non cognizable offences while offences alleged under the provisions of the Drugs and Cosmetics Act, can be prosecuted only by means of a complaint and not an FIR as is clear from the perusal of the judgment cited by learned counsel for the petitioners as also Section 32 of the Act.

Having said so, the issue, which arises is as to what relief is liable to be granted in the writ petition.

It would be relevant to state that the other submissions made by learned counsel for the petitioner are not being adverted to as the same are rendered purely academic in view of the finding arrived at herein above.

Normally, in view of the finding arrived at, the most logical approach would be to quash the impugned FIR. However, the Apex Court in the judgment cited in paragraph 141 has observed as follows:-

"141. This process of interpretation would produce the result of harmonizing two seemingly irreconcilable commands from the Law-Giver. This interpretation commends itself to us for the reason that the investigation into offences, under Chapter IV of the Act, would commence, be carried out and would culminate in, in the safe hands of the competent and qualified Statutory Authority, as designated by law. It would also avoid an outside agency like a Police Officer, being obliged to register an FIR, for the reason that where arrest has to be made, a FIR is to be registered, and, when the registering of the FIR carries with it an unattainable object of preferring a Final Report under Section 173 of the CrPC, as far as the Police Officer is concerned. We make it clear that if a Police Officer is approached with regard to a complaint regarding commission of an offence falling under Chapter IV of the Act, he is not to register an FIR unless it be that a cognizable offence, other than an offence falling under Chapter IV of the Act, is also made out. He must makeover the complaint to the competent Drug Inspector so that action in according with law is immediately taken where only offences under Chapter IV are made out."

In view of the aforesaid direction given by the Apex Court, we refrain from quashing the FIR and only direct that the petitioners shall not be prosecuted or arrested consequent to the impugned FIR and the first information report shall not be acted upon by the police authorities unless, the petitioners have already been convicted on an offence(s) under Chapter IV, as is provided by the U.P. Amendment of Section 30 of the Act. It is left open for the Drug Inspector, the first informant in the FIR to proceed in accordance with law by lodging a complaint before the appropriate forum for the prosecution of the petitioners in these two petitions.

Order Date :- 24.4.2023

Mayank