Mohammad Azmal vs State Of U.P. And Another
2023 Latest Caselaw 16246 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:113089
 
Court No. - 68
 

 
Case :- APPLICATION U/S 482 No. - 5987 of 2023
 

 
Applicant :- Mohammad Azmal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Akhilesh Singh,Shivam Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. The applicant has preferred the instant application under Section 482 Cr.P.C. challenging charge-sheet dated 28.03.2020 in S.T. No. 443 of 2020 in Case Crime No. 52 of 2020 (State v. Azmal), under Sections 8/21/22 N.D.P.S. Act, Police Station Kotwali Dehat, District Saharanpur and impugned order dated 12.01.2021 passed by the learned Special Judge, N.D.P.S. Act/ Additional Sessions Judge, Court No. 5, Saharanpur.

2. Briefly stated facts of the case are; that the applicant runs a Medical Store. On receiving an information from reliable source, search of the Medical Store was conducted on 13.02.2020, wherein a large number of medicines were found, for which the applicant did not have license. Some other irregularities regarding sale of the medicines were also noticed, that were in contravention of the provisions of the Nacrotic Drugs and Psychotropic Substances Act, 19851. A first information report came to be lodged to that effect against the applicant on the said date itself i.e. 13.02.2020. The matter was investigated and after investigation a charge-sheet has been filed therein on 28.03.2020 and the concerned court has taken cognizance whereof by order dated 12.01.2021. The applicant has surrendered and he has been enlarged on bail by this Court vide order dated 05.06.2020.

3. It is contended that a complaint case being S.S.T. No. 1331 of 20202, dated 29.10.2020 has been filed against the applicant for the same offence under Sections 18(a)(i), 18B/27(b)(i), 27(c), 28A of the Drugs and Cosmetics Act, 19403, Police Station Dehat Kotwali, District Saharanpur, wherein non-bailable warrants have been issued.

4. Learned counsel for the applicant submits that the applicant has been falsely implicated for the purposes of harassment. As per the allegations made in the first information report, no offence under the NDPS Act is made out. He further submits that with the same allegations complaint case under the Drugs and Cosmetics Act, 1940 has also been lodged against the applicant, therefore, punishing the applicant twice for the same allegation is nothing but an abuse of the process of law.

5. Learned counsel for the applicant next submits that two proceedings can not be initiated simultaneously for the same offence, one under the NDPS Act and the other under Drugs and Cosmetics Act, 1940. Thus, the proceedings are liable to be quashed.

6. Per contra, learned A.G.A. has strenuously advanced his submissions and submitted that as per the laboratory report of the samples of the drugs found in the applicant's medical store, the applicant is liable to be held guilty under the provisions of the Nacrotic Drugs and Psychotropic Substances Act, 1985 Act as well as Drugs and Cosmetics Act, 1940. he also submits that charges have already been framed on 12.01.2021. He has relied upon a judgement of the Supreme Court in the case State (NCT of Delhi) v. Sanjay4, wherein it has been held that in any case where the activity by any person is in contravention of the provisions of the concerned Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It has further been held therein that merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. Relevant part of the said judgment are quoted herein-below:

"70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.

 
(Emphasis Supplied)
 
      ***		       ***		       ***
 

72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.

(Emphasis Supplied)

73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly."

(Emphasis Supplied)

7. Learned A.G.A. has also relied upon a judgement of the Supreme Court in the case of State of Maharashtra and another v. Sayyed Hassan Sayyed Subhan and others5, wherein the Apex Court following the judgement in State of (NCT of Delhi) (supra), has held that there is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Relevant paragraphs of the said judgement reads thus:

"6. There is no dispute that Section 55 of the FSS Act provides for penalty to be imposed for non-compliance of the requirements of the Act, Rules or Regulations or orders issued thereunder by the Food Safety Officer. But, we are afraid that we cannot agree with the conclusion of the High Court that non-compliance of the provisions of the Act, Rules or Regulations or orders cannot be subject-matter of a prosecution under IPC unless expressly or impliedly barred. The High Court is clearly wrong in holding that action can be initiated against defaulters only under Section 55 of the FSS Act or proceedings under Section 68 for adjudication have to be taken. A further error was committed by the High Court in interpreting the scope of Section 188 IPC. Section 188 IPC does not only cover breach of law and order, the disobedience of which is punishable. Section 188 is attracted even in cases where the act complained of causes or tends to cause danger to human life, health or safety as well. We do not agree with the High Court that the prohibitory order of the Commissioner, Food and Safety is not an order contemplated under Chapter X IPC. We are also not in a position to accept the findings of the High Court that Section 55 of the FSS Act is the only provision which can be resorted to for non-compliance of orders passed under the Act as it is a special enactment.

7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence6. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under IPC and at the same time, an offence under any other law7. The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows:

"26. Provision as to offences punishable under two or more enactments.--Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

8. With regard to the submissions regarding the charges have been framed in the matter, learned A.G.A. further relied upon judgements of the Apex Court in the cases of Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary8 and Minakshi Bala v. Sudhir Kumar and others9, judgement of Madhya Pradesh High Court in the case of Mamta Gupta v. State of M.P. and another10. The Apex Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. (supra) has held that even if there is a strong suspicion about the commission of offence and involvement of the accused, it is sufficient for the Court to frame charge. Relevant part of the said order is being reproduced herein-below:

"10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case to be applied.

11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."

9. Having heard learned counsel for the parties and considering the law as settled by the Apex Court in the cases of State (NCT of Delhi) v. Sanjay and State of Maharashtra and another v. Sayyed Hassan Sayyed Subhan and others, mentioned above, I do not find any infirmity in the orders impugned.

10. The application stands rejected.

Order Date :- 23.5.2023

DS