Rajendra S/O Madhav Pate vs The State Of Maharashtra And Anr
2016 Latest Caselaw 5922 Bom

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                    CRIMINAL WRIT PETITION NO. 846 OF 2016
     




                                                                                 
    Rajendra s/o Madhav Pate,
    Age : 49 years, Occu. Business,




                                                         
    R/o Laxminagar, Chalisgaon,
    District Jalgaon                                                        PETITIONER

           VERSUS




                                                        
    1.     The State of Maharashtra,
           through Secretary,
           Home Department and Police
           Station Officer, Chalisgaon,




                                                
           District Jalgaon

    2.     The Drugs Inspector,
                                  
           Food and Drugs Administration,
           1st Floor, Dr. Ambedkar Market,
                                 
           Jalgon                                                           RESPONDENTS

                              ----
    Mr. R.R. Mantri, Advocate for the Petitioner
       

    Mr. A.R. Borulkar, A.P.P. for the Respondents
                              ----
    



                                            CORAM :   S.S. SHINDE AND
                                                      SANGITRAO S. PATIL, JJ.





                                        RESERVED ON  :  3rd OCTOBER, 2016

                                        PRONOUNCED ON : 10th OCTOBER, 2016
     





    JUDGMENT (PER : SANGITRAO S. PATIL, J.) :

Rule, returnable forthwith. With the consent

of the learned counsel for the petitioner and the

learned A.P.P., heard finally.

2 criwp846-2016

2. By this writ petition, the original accused has

prayed for quashing of the criminal proceedings bearing

Summary Criminal Case (S.C.C.) No. 671 of 2014,

instituted by the Police Station Officer, Chalisgaon in

the Court of the Judicial Magistrate First Class at

Chalisgaon on the basis of the FIR bearing No. 62 of

2013, lodged in the Police Station by respondent No. 2 -

Drugs Inspector, for the offence punishable under

section 27 (b) (ii) of the Drugs and Cosmetics Act, 1940

("the Act", for short).

3. The case of respondent No. 2, in short, is that

as per the order dated 20th June, 2013, passed by the

Assistant Commissioner and Licensing Authority, Drugs

and Medicine Administration, Government of Maharashtra,

Jalgaon, the licence of the petitioner to run the

business of selling the drugs was suspended from 1st

October, 2013 to 15th October, 2013 (both days

inclusive). He was made aware that legal action would

be initiated against him for selling drugs during the

said period as it would amount to committing breach of

Section 18 (c) of the Act. It is alleged that on 10 th

3 criwp846-2016

October, 2013, the Assistant Commissioner Shri H.Y.

Metkar and the Drugs Inspectors Shri A.M. Manikrao (i.e.

respondent No.2) and Shri A.S. Sarkade visited M/s Suyog

Medical and General Stores, Station Road, Nehru Square,

Chalisgaon, that was run by the petitioner and without

disclosing their identity, orally asked for a cough

syrup, whereon the petitioner sold out Alkof cough syrup

to them without asking for prescription from the medical

practitioner and without issuing any bill. However,

when the price of the cough syrup i.e. Rupees 36/-, was

offered to the petitioner, he politely refused to

receive the same. The above named three officers seized

the cough syrup bottle and prepared the inspection

report which was signed by the petitioner. Thereafter,

on the next day, respondent No.2 lodged the FIR in

Police Station, Chalisgaon against the petitioner for

the offence punishable under section 27 (b) (ii) of the

Act. After completion of the investigation, the

Investigating Officer i.e. API Mushtaq Shaikh, submitted

the chargesheet against the petitioner in the Court of

the Judicial Magistrate First Class at Chalisgaon for

the above mentioned offence on the basis of which the

S.C.C. No. 671 of 2014 came to be instituted.

4 criwp846-2016

4. The learned counsel for the petitioner assailed

tenability of the chargesheet and the subsequent

criminal proceedings bearing S.C.C. No. 671 of 2014,

firstly on the ground that as per Section 32 of the Act,

the cognizance of the above mentioned offence could not

have been taken on the basis of the chargesheet filed by

the police officer. He submits that it was only on the

basis of the complaint filed by respondent No.2 that the

cognizance could have been taken in view of section 32

of the Act. He points out to Section 36-AC (a) of the

Act which enumerates the offences punishable under

certain sections of the Act which have been made

cognizable. Therefore, according to him, the cognizance

of the offence taken by the learned Judicial Magistrate

First Class, Chalisgaon, on the basis of the chargesheet

submitted by the police officer, itself is illegal and

hence, the criminal proceedings are liable to be quashed

and set aside.

5. He further submits that the licence of the

petitioner to run the business of selling and purchasing

the drugs was suspended by the Assistant Commissioner

5 criwp846-2016

Shri H.Y. Metkar after holding necessary enquiry and

giving an opportunity of hearing to the petitioner.

Moreover, respondent No. 2 was serving as the Drugs

Inspector for Chalisgaon Taluka since the year 2012.

Both of them were known to the petitioner. Therefore,

the case of respondent No. 2 that the Assistant

Commissioner Shri H.Y.Metkar and himself visited the

shop of the petitioner and without disclosing their

identity, purchased the cough syrup ex facie cannot be

accepted. He submits that respondent No. 2 being the

Drugs Inspector, was empowered to inspect the shop of

the petitioner and take samples of any drug. The

petitioner was bound by law to hand over the bottle

containing drug asked for by the Drugs Inspector for

inspection and taking samples. His refusal to hand over

the bottle of any drug to the Drugs Inspector would have

entailed his criminal prosecution. He further submits

that since the said officers were known to the

petitioner, on being asked by them, the petitioner

handed over the bottle of cough syrup to them. He was

not even knowing that the said officers were proposing

to purchase the said bottle. He further submits that the

refusal to receive the price of the cough syrup bottle

6 criwp846-2016

on the part of the petitioner itself indicates that he

was not intending to sell the said cough syrup bottle to

them.

6. He then submits that there is absolutely no

evidence to show that during the period of suspension of

the licence of the petitioner, he sold out any drug to

any person. According to him, no offence punishable

under section 27 (b) (ii) of the Act can be said to have

been committed by the petitioner. He submits that

continuation of the criminal proceedings in the above

circumstances would be nothing but abuse of process of

law. He, therefore, prays that the said criminal

proceedings may be quashed and set aside.

7. On the other hand, the learned A.P.P. submits

that the Assistant Commissioner Shri H.Y. Metkar and

respondent No. 2 alongwith one Shri A.S. Sarkade visited

the shop of the petitioner. They did not disclose their

identity to the petitioner and asked for a bottle of

cough syrup without producing any prescription of any

medical practitioner. The petitioner immediately handed

over the cough syrup bottle to them. This, according to

7 criwp846-2016

him, would be sufficient to establish the sale

transaction of the drugs by the petitioner during the

period of suspension of his licence. According to him,

the petitioner has been rightly prosecuted for the above

mentioned offence.

8. As per Section 18 (c) of the Act, no person

shall himself or by any other person on his behalf

manufacture for sale or for distribution, or sell, or

stock or exhibit or offer for sale, or distribute any

drug or cosmetic, except under, and in accordance with

the conditions of, a licence issued for such purpose

under Chapter IV of the Act. Undisputedly, the

petitioner has obtained a licence for sale of drugs

through his shop namely M/s Suyog Medical and General

Stores. The petitioner has produced the copy of the

order dated 20th June, 2013, passed by the Assistant

Commissioner Shri H.Y. Metkar whereby the licence

granted to the petitioner for sale and purchase of drugs

through his shop was suspended for a period from 1 st

October, 2013 to 15th October, 2013 (both days

inclusive). The copy of this order is shown to have

been given to respondent No. 2 also.

8 criwp846-2016

9. The FIR lodged by respondent No. 2 itself makes

it clear that before passing of the said order, a notice

to show cause was given to the petitioner and after

considering his reply, the said order came to be passed.

It is further mentioned in the FIR that respondent No. 2

is working as a Drugs Inspector for Chalisgaon Taluka

since the year 2012. In the circumstances, the

contention of respondent No. 2 that when he himself, the

Assistant Commissioner Shri H.Y. Metkar and one more

officer visited the shop of the petitioner, the

petitioner was not knowing them and that without

disclosing their identity, they asked the petitioner to

hand over the cough syrup bottle to them, prima facie,

cannot be accepted. Moreover, the contents of the FIR

do not disclose that respondent No. 2 expressed his

desire to purchase the cough syrup bottle. It is

mentioned that respondent No.2 and the other two

officers orally asked the petitioner to handover the

cough syrup bottle. When respondent No. 2 - Drugs

Inspector, who was empowered vide section 22 of the Act

to inspect the shop of the petitioner, asked for any

particular drug bottle for inspection, it was most

9 criwp846-2016

natural on the part of the petitioner to obey his

dictate by handing over the said bottle to him, failing

which the petitioner would have been liable to be

prosecuted for committing an offence made punishable

under sub-section (3) of section 22 of the Act.

Respondent No. 2 himself states in the FIR that the

petitioner politely refused to accept the price thereof.

Had the petitioner really intended to sell the cough

syrup bottle to unknown persons, as alleged, he would

have immediately accepted the price thereof. If the

said bottle was handed over by him to those officers on

being asked by them, without receiving any price

thereof, then it cannot be assumed that it was sold out

by him to them. As such, the alleged sale of the cough

syrup bottle by the petitioner, cannot be believed from

the contents of the FIR itself.

10. There is absolutely nothing on record to show

that the petitioner sold out the drugs to any other

persons during the period of suspension of his licence.

It was not difficult for respondent No. 2 to seize the

bill-book containing the receipts or to send a spy

witness to purchase the drugs with prescription and then

10 criwp846-2016

after sale of the drugs by the petitioner, to take

necessary action against him. Without doing that

exercise, respondent No. 2 tried to show that the

petitioner sold the drugs during the period of

suspension of his licence.

11. Here, it would be necessary to refer to the

material portion of the provisions of Section 36-AC (1)

(a) of the Act, enumerating the offences punishable

under certain sections of the Act, which have been made

cognizable, which read thus :-

"Offences to be cognizable and non-bailable in certain cases -

(1) Notwithstanding anything contained in

the Code of Criminal Procedure, 1973 -

(a) every offence, relating to adulterated or spurious drug and punishable under clauses (a)

and (c) of sub-section (1) of section 13, clause (a) of sub-section (2) of section 13, sub-section (3) of section 22, clauses (a) and

(c) of section 27, section 28, section 28-A, section 28-B and sub-sections (1) and (2) of

section 30 and other offences relating to adulterated drugs or spurious drugs, shall be cognizable."

The offence punishable under section 27 (b) (ii) of the

Act has not been included in clause (a) of sub-section

(1) of section 36-AC of the Act. In view of the settled

11 criwp846-2016

legal position that special enactment will prevail over

general law, as has been reiterated in the case of

Suresh Nanda Vs. C.B.I. (2008) 3 SCC 174 cited by the

learned counsel for the petitioner, the provisions of

section 36-AC of the Act would prevail over the general

provisions of the Code of Criminal Procedure,

classifying the offences as cognizable or non-

cognizable, and the offences those have been enumerated

in section 36-AC only would be treated as cognizable. As

such, the offence under section 27 (b) (ii) of the Act

being non-cognizable, the police machinery was not

empowered to take cognizance thereof and conduct

investigation, without the order of the Magistrate vide

section 155 (2) of the Code of Criminal Procedure. It

is not the case of the respondents that the

investigation into the present case was carried out

after obtaining order from the Magistrate vide section

155 (2) of the Code. Thus, the investigation conducted

by the police officer in this case is illegal.

12. Section 32 of the Act reads as follows :-

"Cognizance of offences -

(1) No prosecution under this Chapter shall be instituted except by -

                                             12                          criwp846-2016


                     (a) an Inspector; or

(b) any Gazetted Officer of the Central

Government or a State Government authorised in writing in this behalf by the Central

Government or a State Government by a general or special order made in this behalf by that Government; or

(c) the person aggrieved; or

(d) a recognised consumer association whether such person is a member of that association or not.

(2) Save as otherwise provided in this Act, no

Court inferior to that of a Court of Session shall try an offence punishable under this Chapter.

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or

omission which constitutes an offence against this Chapter."

From the above provisions, it is clear that the

cognizance of the offences punishable under Chapter IV

of the Act, which includes the offence under Section 27

(b) (ii), cannot be taken on the basis of the

chargesheet filed by the police under section 173 of the

Code of Criminal Procedure.

13. Indisputably, the cognizance of the offence

punishable under section 27 (b) (ii) of the Act alleged

13 criwp846-2016

to have been committed by the petitioner has not been

taken by the learned Judicial Magistrate, First Class on

the basis of the complaint as defined under section 2

(d) of the Code of Criminal Procedure, 1973, filed by

respondent No. 2 - the Drugs Inspector. Consequently,

the cognizance of the said offence taken on the basis of

the chargesheet filed by the police officer cannot be

said to be legal. The learned Judicial Magistrate First

Class had no jurisdiction to take cognizance of the said

offence against the petitioner on the basis of the

chargesheet filed by the police officer ignoring the

provisions of section 32 of the Act.

14. The learned counsel for the petitioner relies

on the judgment in the case of G. Sagar Suri and another

Vs. State of U.P. and others (2000) 2 S.C.C. 636,

wherein it has been held that the High Court can

exercise the jurisdiction of quashing criminal

proceedings even when the application for discharge of

the accused is pending with the trial Judge. However,

such power should be exercised cautiously to prevent

abuse of process of court. He further cited the judgment

in the case of Pepsi Foods Ltd. and another Vs. Special

14 criwp846-2016

Judicial Magistrate and others 1998 (1) Mh.L.J. 599

(S.C.), wherein also it has been held that though the

Magistrate can discharge the accused at any stage of the

trial if he considers the charge to be groundless, but

that does not mean that the accused cannot approach the

High Court under section 482 of the Code or Article 227

of the Constitution to have the proceedings quashed

against him when the complaint does not make out any

case against him and still he must undergo the agony of

a criminal trial.

15. In view of the above facts and circumstances of

the present case and the rulings referred to above, we

are of the considered view that the continuation of

criminal proceedings against the petitioner would be a

sheer abuse of process of the Court. In the result, we

allow the writ petition with the following order :-

(i) The criminal writ petition is allowed.

(ii) The criminal proceedings bearing Summary

Criminal Case No. 671 of 2014, instituted in

the Court of the Judicial Magistrate First

Class, Chalisgaon, against the petitioner for

15 criwp846-2016

the offence punishable under section 27 (b)

(ii) of the Drugs and Cosmetics Act, 1940, are

quashed and set aside.

(iii) The petitioner is set at liberty. His bail

bonds are cancelled.

(iv) Rule is made absolute in the above terms.

                   Sd/-          ig                     Sd/-
         [SANGITRAO S. PATIL]                      [S.S. SHINDE]
                 JUDGE                                 JUDGE
                               
    npj/criwp846-2016