Rana Bandyopadhyay & Anr vs The State Of West Bengal & Anr
2022 Latest Caselaw 3951 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Revisional Jurisdiction
                               Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri

                       IA No.:CRAN/1/2022
                                in
                         CRR 515 of 2021

                  Rana Bandyopadhyay & Anr.
                              Vs.
                The State of West Bengal & Anr.

For the petitioners        :   Mr. Amarta Ghose, Adv.
                               Mr. Prasun Ghosh, Adv.

For the State          :       Mr. Sanjay Bardhan, , Adv.,
                               Ms. Manisha Sharma, Adv.

Heard &
Judgement on           :       05.07.2022.

Bibek Chaudhuri, J.

The instant criminal revision filed by the accused persons of

G.R. Case No. 1117/2020 is for quashing of the above-numbered G.R.

Case arising out of Chinsurah Police Station Case No. 232/2020 dated

18th August, 2020 under Section 27(b) of the Drugs and Cosmetics

Act, 1940 (hereafter described as the said Act) presently pending

before the Learned Chief Judicial Magistrate at Hooghly.

Chinsurah Police Station Case No. 232/2020 was registered on

18th August, 2020 on the basis of a suo motu complaint submitted by

one Suman Biswas, Inspector of Drugs stating, inter alia, that on the

selfsame day the de facto complainant along with the Senior

Inspectors of Drugs, Officers of Enforcement Branch and Members of

the Force attached to Chandernagore Commissionerate conducted a

search operation at premises no. 476/226, Satya Pirtala Taldanga

Road within Police Station - Chinsurah and found that manufacturing

process was going on under the vigil of the petitioners. During

inspection, the de facto complainant found and seized huge quantity

of manufactured hand sanitizer without label, some empty bottles and

some labels with trade name 'spot on'. It was alleged by the

Investigating Officer that the hand sanitizers being the scheduled

drugs was manufactured in gross violation of schedule 'M' of the said

Act and the Rules thereunder. There was every reason to believe that

the seized drugs were adulterated in view of the fact that quality

control measure was not taken by the petitioners while manufacturing

the said drugs. The petitioners were arrested by the police and he

lodged a complaint against the petitioners under the above-named

penal provisions under the said Act.

It is submitted on behalf of the petitioners, at the outset, that

from the FIR it transpires that the complainant under whose

leadership search and seizure was conducted did not seize any

manufacturing apparatus of hand sanitizers. The complainant found

huge quantity of manufactured hand sanitizer and some empty bottles

and lebels. The said articles were seized by the said Police Officer.

Therefore, the suo motu complaint discloses the fact of storing and

packaging of hand sanitizers.

Next he draws my attention to the Ministry of Health and Family

Welfare Notification No. S.O. 2451(E) dated 27 th July, 2020. The said

notification runs thus:-

"S.O. 2451(E). - Whereas, there has been an outbreak of

COVID - 19 pandemic in India and worldwide;

Whereas, several representations requesting to exempt hand

sanitizers from the requirement of sale licence under the provisions of

Chapter IV of the Drugs and Cosmetics Act, 1940 and the provisions

of the Drugs and Cosmetics Rules, 1945 for stocking or sale of the

drug have been received;

Whereas, the Central Government is satisfied that hand

sanitizers are essential to meet the requirements of emergency

arising due to COVID - 19 pandemic and their easy availability is

made in public interest;

Whereas, the Central Government considers it necessary that

hand sanitizers are required to be made widely available to the public

at large;

Now, therefore, in exercise of the powers conferred by section

26B of the Drugs and Cosmetics Act, 1940 (23 of 1940), the Central

Government, hereby directs that the drug, namely, hand sanitizer

shall be exempted from the requirement of sale licence for its

stocking or sale under the provisions of Chapter IV of the Drugs and

Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945,

subject to the condition that provisions of condition (17) of rule 65 of

the said Rules are complied with by the person stocking or selling

hand sanitizers.

This order shall come into force on the date of its publication in

the Official Gazette.

[F. No. X. 11014/3/2020-DR]

Dr. Mandeep K Bhandari, Jr. Secy."

Taking me to the above provision it is submitted by the Learned

Advocate for the petitioners that from the date of above notification

hand sanitizer was exempted from the requirement of sale licence for

its stocking or sale under the provision of Chapter IV of the said Act

and the Rules framed thereunder.

Next it is submitted by the Learned Advocate for the petitioners

that Section 18(a) prohibits a person from manufacturing for sale or

for distribution, or sell, or stock or exhibit or offer for sale or

distribute any drug .......etc.

Section 18(b) prohibits sell or stock or exhibit or offer for sale or

distribute any drug or cosmetic which has been imported or

manufactured in contravention of any of the provisions of this Act or

any Rule made thereunder.

Section 18(c) prohibits manufacturing 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 said Act.

According to the Learned Advocate for the petitioners the rigours of

Section 18(a), (b) and (c) are not applicable in view of the notification

dated 27th July, 2020 in respect of the hand sanitizers.

It is also submitted by him that the standard of quality of the

seized hand sanitizers was examined by the State Drugs Control and

Research Laboratory and it was opined that the seized drug is of

standard quality. Therefore, the petitioners did not even violate the

standard quality norm of the hand sanitizers which they store for

packaging and sale. Had the petitioners been engaged in

manufacturing the hand sanitizers, the machinery, raw materials and

other apparatus must have been seized by the complainant. In the

absence of any seizure, the allegation of illegal manufacturing of drug

in contravention of the said Act falls flat.

Learned Advocate for the petitioners next draws my attention to

Section 32 of the said Act and submits that the Learned Magistrate

committed an apparent error in taking cognizance of the offence

against the accused persons in the absence of any complaint

submitted by an Inspector appointed under the said Act or any

Gazetted Officer of the Central Government or a State Government

authorized in writing in this behalf or the person aggrieved or a

recognized consumer. Police Officer cannot lodge a complaint under

the said Act for registering a police case against the accused person.

In support of his contention, he refers to a decision of the Hon'ble

Supreme Court in Union of India -Vs.- Ashok Kumar Sharma &

Ors. reported in AIR 2020 SC 5274. Paragraph 150 of the said

judgement is relevant and reproduced hereinbelow:-

150. Thus, we may cull out our conclusions/directions as

follows:

I. In regard to cognizable offences under Chapter IV of the

Act, in view of Section 32 of the Act and also the scheme

of the Code of Criminal Procedure, the Police Officer

cannot prosecute offenders in regard to such offences.

Only the persons mentioned in Section 32 are entitled to

do the same.

II. 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.

III. Having regard to the scheme of the Code of Criminal

procedure and also the 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

Police Officer cannot register a FIR under Section 154 of

the Code of Criminal Procedure, in regard to cognizable

offences under Chapter IV of the Act and he cannot

investigate such offences under the provisions of the Code

of Criminal Procedure.

IV. Having regard to the provisions of Section 22(1)(d) of the

Act, we hold that an arrest can be made by the Drugs

Inspector in regard to cognizable offences falling under

Chapter IV of the Act without any warrant and otherwise

treating it as a cognizable offence. He is, however, bound

by the law as laid down in D.K. Basu (Supra) and to follow

the provisions of Code of Criminal Procedure.

V. It would appear that on the understanding that the Police

Officer can register a FIR, there are many cases where

FIRs have been registered in regard to cognizable

offences falling under Chapter IV of the Act. We find

substance in the stand taken by Learned Amicus Curiae

and direct that they should be made over to the Drugs

Inspectors, if not already made over, and it is for the

Drugs Inspector to take action on the same in accordance

with the law. We must record that we are resorting to

our power under Article 142 of the Constitution of India in

this regard.

VI. Further, we would be inclined to believe that in a number

of cases on the understanding of the law relating to the

power of arrest as, in fact, evidenced by the facts of the

present case, police officers would have made arrests in

regard to offences under Chapter IV of the Act.

Therefore, in regard to the power of arrest, we make it

clear that our decision that Police Officers do not have

power to arrest in respect of cognizable offences under

Chapter IV of the Act, will operate with effect from the

date of this Judgment.

VII. We further direct that the Drugs Inspectors, who carry out

the arrest, must not only report the arrests, as provided

in Section 58 of the Code of Criminal Procedure, but also

immediately report the arrests to their superior Officers".

Thus, it is submitted by the Learned Advocate for the petitioners

that the instant prosecution is abuse of the process of the Court and

liable to be quashed.

Learned Public Prosecutor-in-Charge, on the other hand,

submits that notification no. 2451(E) dated 27 th July, 2020 is not at all

applicable in the instant case because the said notification exempts

hand saitizers from the requirement of sale, licence or stocking or sell.

The notification does not exempt illegal manufacturing of hand

sanitizer without licence by the accused persons. The written

complaint/suo motu FIR contains the allegation that the raid was

conducted on the allegation of illegal manufacturing of hand satinizer

by the accused person. The said fact was corroborated by the

witnesses in their statement recorded under Section 161 of the Code

of Criminal Procedure at pages 19,20,21 and 23 of the case diary.

Moreover, it also appears from the case diary that the investigation of

the case has already been handed over to the Inspector appointed

under the said Act and charge-sheet was submitted by the competent

authority. Therefore, the objection raised by the Learned Advocate

for the petitioners shall be considered at the time of trial. From the

materials-on-record, prima facie case has been established against

the accused persons and charge-sheet cannot be quashed in the

instant case.

Having heard the Learned Counsels for the parties and on

careful scrutiny of the entire materials-on-record and having regard to

the legal provisions, this Court is not at all hesitant to note that a case

under Drugs and Cosmetics Act cannot be initiated on the basis of a

complaint made by a Police Officer. He is not a competent Officer

under Section 32(a), nor is he a Gazetted Officer duly empowered by

the Central Government or State Government, or a person aggrieved

or a recognized consumer. The decision of the Hon'ble Supreme

Court in Ashok Kumar Sharma (Supra) is pat on the point

regarding Police Officer's power prohibited under Section 32 of the

said Act.

Furthermore, the seized drug was examined by the State Drugs

Control and Research Laboratory. The concerned Authority submits

that the drugs were of standard quality. Though there is an allegation

against the petitioners that they were manufacturing the drugs there

is absolutely no evidence in the case diary except the oral statement

recorded under Section 161 of the Code of Criminal Procedure that

the petitioners were engaged in manufacturing hand sanitizers.

Stocking and packaging for sale of hand sanitizers were exempted

from the requirement of having a licence.

For the reasons stated above, this Court is of the view that

contention of further proceeding in G.R. Case No. 1117/2020 arising

out of Chinsurah Police Station Case No. 232/2020 under Section

27(b) of the Drugs and Cosmetics Act for violations of Section 18(a),

18(b) and 18(c) of the said Act will be abuse of the process of the

Court.

For the reasons stated above, the proceeding being G.R. No.

1117/2020 and related proceeding thereunder be quashed.

(Bibek Chaudhuri, J.)

Srimanta, A.R.(Ct.)