Ram Chander vs P.K. Gupta And Anr.
2002 Latest Caselaw 1309 Del

JUDGMENT

S.K. Agarwal, J.

 

 1. By  this  petition  under  Section   482  of   the  Code
of     Criminal     Procedure, 1973   (for  short   'Cr.P.C.' )      the  
 petitioner   has  prayed  for   quashing  of   complaint   filed   by
the     Drugs     Inspector,  (respondent   No. 1) under Sections, 
  18(c)    & 18(4)(i)   read  with Sections  27(b)/27(a)   &   27(c)   
   of     the     Drugs  and  Cosmetics  Act,   1940   (for     short     "the
Act").
 
 

 2. Facts     in   brief   are  that  on   17th  March,     1986,
at     12     noon   Mr. R.P.     Negi,   Drugs   Inspector     along     with
Rajender    Parsad,     S.I.     of  P.S.     Sadar  Thana,   Delhi     on
receipt     of     secret     Information     reached     the    shop     of
M/s. Sonu     Packers, Sadar Bazar, Delhi     of     which     the
petitioner     was   the   partner. He  was  found   in   possession
of     25     Kg  of   white  flat  tablets  scored  on   one  side     and
Imprinted  on   the  other   side   with  the   word   'Wyeth',   which
were     found   Kept   in   a  polythene  sack  and  two  card     board
boxes.  The     average  weight  of  these  tablets  was     found,
between     100     to     115 mg..     The  Wyeth  tablet     is     a     drug
within       the     meaning     of     Section       3(b)     of     the       Act (hereinafter "the tablets"). The Inspector took into possession the entire stock for analysis as per the procedure laid down under Section 23 of the Act. Intimation to the accused in form No. 17 was given on the spot and the Metropolitan Magistrate was Informed, On disclosure statement of the petitioner, premises of one Madan Lal R/o 1714, Basti Julahan, Sadar Bazar, Delhi were raided, wherefrom 25 Kg. of white power etc. was recovered. On analysis, by the Government Analyst, the tablets were found to contain only starch. The accused was found engaged in illicit trade of sale of spurious drugs. After completion of Investigation, complaint was filed by the Drugs Inspector, cognizance was taken and the petitioner was summoned. On 15th May, 1995,

Metropolitan     Magistrate     framed  charge     under     Sections

18(1)(a) read with Section 27(c) and under Section 18(c) read with Section 27(b) of the Act, against the petitioner. It was also held that no charge under Section 18(1)(a) read with Section 27(a) was made out. The petitioner filed a revision petition against the order framing the charge and the same was dismissed on 6th July, 1999, Thereafter, the petitioner filed the above petition under Section 482 Cr.P.C. praying for quashing of the charge and the complaint.

3. I have heard learned counsel for the petitioner, APP for the State, Sh. Aman Lekhi, amices Curiae and have been taken through the record.

4. Learned counsel for the petitioner argued that petitioner was entrusted with the tablets, by one Madan Lal only for the purpose of packing; that there is no material on record to show that the tablets were in possession of the petitioner for the purpose of stock or sale; that on 26th August, 1986, petitioner in reply to the letter dated 11th August, 1986 had clearly stated that the articles seized from him were entrusted to him by one Madan Lal; that the petitioner was neither the manufacturer of the drugs nor his agent for distribution thereof; that under Section 18A of the Act, he was only required to disclose the name and address and other

particulars of the person who had given the drug, and that having been done no offence is made out against the petitioner even if assuming the allegations are to be true.

5. In support of his submissions reliance, was placed on the Supreme Court decision in Mohd. Shabbir v.

State of Maharashtra , wherein it was held:-

"We, therefore, hold that before a person can be liable for prosecution or conviction under Section 27(a)(i)(ii) read with Section 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was celling the same or had stocked them or exhibited the articles far sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of Section 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant. Cr. Appln. 774 of 1972, D/- 12-2-1973 (Born), Reversed."

Learned counsel for the petitioner on the basis of above observations, argued that assuming the allegations to be true, no offence against the petitioner is made out since he was only packing the medicines for someone else. Learned APP for the State argued to the contrary. In order to appreciate the rival contentions, it will be necessary to examine the definition of the word "manufacture" as contained in Section 3(f) of the Act. It reads :-

"3.(f):- "manufacture" in relation to any drug (or cosmetic) includes any process or part of a process for makings, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug [or cosmetic] with a view to its [sale or distribution] but does not include the compounding or dispensing [of any drug, or the packing of any drug or cosmetic,] in the ordinary course of retail business; and "to manufacture" shall be construed accordingly;]."

The earlier definition of "manufacture" under the Act was amended by Act No. 68 of 1982. For the words "sale and distribution" words "sale or distribution" were substituted and for the words "packing of any drug", words "or the packing of any drug or cosmetic in the ordinary course of retail business" were added. After these amendments, the word "manufacture" in relation to the drugs includes any process or part of process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug (or cosmetic) with a view to its sale or distribution. However, it does not include compounding or dispensing of packing of any drug in course of retail business. In a subsequent Division Bench decision of this Court in State v. Puran Lal, 198 Drug Cases 126, after referring to the Supreme Court decisions it was found that observations made by the Supreme Court in Mohd. Shabbir's case (supra) were on its own facts. While setting aside the acquittal on similar grounds it was held :-

"7. In the present case we have no manner of doubt that the large stock of drugs which was found in the shop of the accused was stored for the purposes of sale. The order of acquittal passed by the learned Magistrate is, therefore, vitiated. The appeal is, therefore, allowed and the order of acquittal is set aside. Section 27 of the Act, as it then stood, provides for a term of imprisonment which shall not be less than one year but which may extend to ten years and shall also be liable to fine. Here large amount of spurious and adulterated drugs have been found which the respondent had stored for sale. Many of the drugs are life saving drugs and could make all the difference between life and death if given to a patient at the critical time. Spurious and adulterated medicines which were recovered from the respondent if allowed to be used by patients who need them rather critically an d who will be damaged by the use of it is a horrible thing to contemplate and the respondent who is guilty of Indulging In it can hardly call for any sympathy. As a matter of fact the legislature has been finding means to curb this evil by making the penalties more and more stringent. That is why by 1982 Amendment it has been incorporated that any person found guilty of stocking for sale adulterated goods shal1 be awarded a minimum sentence of one year."

In view of the expanded definition of the expression "manufacture" in the Act, there is no merit in the contention that the drug was not stocked for sale or distribution and that he was only packing the drugs for another person whose name was disclosed. As per allegation, prima facie, the drug was being packed for sale or distribution. Therefore, at this stage, it cannot be held that no offence against the petitioner is

made out. The ratio of the decision in Mohd. Shabbir's case (supra) is not applicable to the facts at hand.

 6. At     this     stage,   one   more  aspect  of     the     case
needs     examination,       To     re-call     the     facts,     on     17th
August,      1986,      Sub-Inspector  of P.S. Sadar   Bazaar     after
noticing     large  quantity  of tablets   lying   at   the   shop   of
the     petitioner  became  suspicious  and   initiated     action.
The     Drug     Inspector   was   informed  and  First     Information
Report     under     Section   154   Cr.P.C.      (FIR     No. 97/86)      was
registered     at     P.S.Sadar  Bazaar.     However,     nothing     is
available     on   record   to  show  as   to   what   happened   to     the
investigation     by  the   police.      Admittedly,   the     articles
were     seized     in     the     presence   of   the     police     and     the
petitioner     was     arrested.        Learned       counsel     for     the
petitioner     argued  that  as  par  practice  after  the  FIR   is
registered,      investigation     is   handed   over  to     the     Drug
Inspector,     who  is  authorised  to  file  the  complaint.     It
was     felt  that  after   registration   of   the   FIR,      procedure
followed     by     the  police   is  not  warranted  by     the     Code.
Looking     into     the   importance   of   issue   involved  and     the
fact     that     menace     of   spurious/adulterated  drug     is     on
Increase,     Deputy  Commissioner  of  Police  was   required  to
examine     the  matter  and  file   reply.      In   response     Sanjay
Baniwal,     DCP,   North  District   filed   an   affidavit   stating
that     in     such     cases   after   investigation      report     under
Section     173  Cr.P.C.     is  sent   to  the   Drug   Inspector     for

filing     of     the  complaint  under  Section   32  of     the     Act. The  affidavit  reads : - 
   

 "That  SI   Rajender  Prashad  investigated  said
case     FIR     No.     97/86  mentioned     above     and
during,   the     course     of      investigation     Sh.
Madan     Lal   s/o  Sh.     Prabhu  Dayal,   r/o  1714,
Basti     Julahan,   Sadar  Bazar,   Delhi   and     Sh.
Ram     Chander  s/o  Sh.     Daulat  Ram,   r/o     801,
Bartan     Market,      Sadar  Bazar,     Delhi,     were
arrested.        On   completion   of     investigation
Insp.        Daryao   Singh,   the  then   S.H.O.      P.S.
Sadar     Bazar     prepared   the   report     under Section     173
Cr.P.C.        and  the   case  file   was   handed  over
to         Department         of Drugs,           Delhi
Administration   on   29.9.86  for   submission   of    
complaint/report     in     the  court     for     trial
through      Drug       Inspector       who     is       only
competent  to  file  the  same   in   the  Court  for
 trial     as     per  provisions  of  Section 32     of
the  Drugs  and  Cosmetics  Act   1940. 
 

That general practice in offences which are cognizab1e under Drugs and Cosmetics Act 1940 by virtue of Section 32 of the Drugs and Cosmetics Act is that although FIR is registered by Police but; since Drugs Inspector is competent to institute prosecution therefore report under Section 173 Cr.P.C. is forwarded to department of Drugs, Delhi Administration to lodge the prosecution in accordance with law".

However, what is stated in the affidavit by the DCP is not borne from the record. There is no report under Section 173 Cr.P.C. which may have been sent to the Drug Inspector for filing the complaint in the Court. In any case, under the Code, the report under Section 173 Cr.P.C. is not required to be sent to the Drug Inspector. Such a report is required to be filed in the Court after completion of investigation. In order to meet the requirement of Section 32 of the

Act, the complaint by the Drug Inspector could be filed along with reports, with specific prayer for taking cognizance on the complaint of the Drug Inspector and the procedure applicable in the complaint cases should be followed. This procedure finds approval by the following Division Bench decision of this Court, as well as of other High Courts:-

(i) In State v. Moti Lal, 2nd (1969) Delhi 286 (DB) it was held:-

"The record of the case clearly shows that the complaint of the Drugs Inspector was one of the documents attached to the polic report. In that report particulars of its annexures were given These referred not only to the "original writing" of the Drugs Inspector comprising of one sheet but to the complaint which was described as having three sheets. The report made by the Drugs Inspector is hand-written and comprises of one sheet only while the complaint addressed to the Magistrate (Exhibit PS) is a typed document having three sheets. It is also signed by the Drugs Inspector. It cannot, therefore, be said that the complaint was not before the Magistrate when orders for summoning the accused were passed.

It is true that in the order of the Magistrate, dated February 19, 1965, a reference was made to the challan and not the complaint and the accused was ordered to be summoned. But when the accused appeared the case was proceeded with not under provisions of Section 251-A of the Code of Criminal Procedure but under the provisions of Section 252 which prescribed the procedure for trial of warrant cases instituted otherwise than on a police report. The learned Magistrate also wrote the judgment as if he was disposing of a complaint."

(emphasis supplied)

ii. In Chunilal Vallabhaji Gandhi v. State, (DB) it was held: -

  "(5)   As  we   have  already  observed,   C.N. Patel
filed     an   information   before  the  police     at
Kandivli   and  obtained  the  assistance  of  the
Sub-Inspector     in     charge     of     that     police
station   for raiding the place occupied by
the appellant.    On   the  record  also  there   is
a     complaint     addressed  to     the     Presidency
Magistrate,     at  Borivli,   by  C.N. Patel,     who
has     described   himself   as   a   Drugs   Inspector
appointed     under    Section 21 of   the     Drugs     Act
complaining      that       the         appellant       had
contravened     the     provisions       of  sections
18(a)(i),   18(a)(iii)   and  18(c)   of   the  Drugs
Act  and  had  thereby   rendered   himself   liable
for     punishment  under  Section   27  of   the  Act
as  amended  by  Section   12  of   India  Act  11  of
1955,      and     praying  that   process   be     issued
against     the  appellant  and  others   and     that
they     be  dealt  with  according  to   law.     This
complaint     it     is  not  disputed,      was     filed
with     the     charge-sheet   lodged  in   court     by
the  police,   Section   32  of  the  Drugs  Act,   in
so     far   as   it   is  material,   provides  by     the
first     sub-section:      "No  prosecution     under
the       Chapter       (Chapter       IV)        shall       be
instituted       except     by         an   Inspector."
Mr. Gordhandas     submits     that   in     this     case
prosecution       was     not       instituted     by     an
Inspector       and         that         the       Presidency
Magistrate  had  no  jurisdiction  to  entertain
the  proceeding  and  to   issue  process  against
the  appellant,   and  that  the  proceeding   have
being     in   its   inception   entertained  without
jurisdiction,        the     conviction of       the
appellant    cannot    be    sustained.       We     are
unable  to  hold  that  the  prosecution   in  this
case was     not   instituted  by   an   Inspector.
 There  was before the learned Presidency
Magistrate a complaint by an Inspector

under the Drugs Act charging the appellant with having committed offences under Sections 18(a)(i), 18(a)(iii) and 18(c) of the Drugs Act. That complaint having been filed in court, It cannot be said that the prosecution against the appellant was not Instituted by an Inspector. It is true that the complaint was accompanied by a

charge-sheet filed by the police, but, that charge-sheet may be regarded as superfluous. As a complaint was filed by an Inspector under the Drugs Act, the prosecution was competently entertained by the Presidency Magistrate, and the fact that the complaint was accompanied by the charge-sheet under the signature of the Inspector of Police did not render the prosecution instituted as otherwise than by an Inspector."

 

 (emphasis  supplied) 
 

 7. Sub-section     (2)     of     Section     4   of     Criminal
Procedure     Code     provides     that  all   offences     under     any
other     law  are  to  be  investigated,   inquired  into,     tried
and     otherwise     dealt     with  according     to     the     Cr.P.C.
however,     subject     to     the  provisions  contained     in     the
special      law     regulating     the     manner   or     the     place     of
investigation     or  enquiry  into  or  otherwise  dealing  with
such     offence,     as     was   held   in   Moti Lal v. Central
Bureau of Investigation & Anr. . The
offences     under     the  Act  for  manufacturing  and     sale     of
spurious/adulterated     drugs,      (if   the  same  is   likely     to
cause  .  grievous  hurt  as  defined  in   Section  320   IPC)     are
punishable     with     minimum     imprisonment  of     five     years'
which     may  extend  to   life   imprisonment.     These     offences
are  cognizable,   non-bailable  and  friable  by  the  Court  of
Session   as  per  First  Schedule  of   Cr.P.C.      The  police   has
the  power  to   register   the   First   Information   Report   under
Section     154,      power     to     arrest     the     offender     without
warrant   under   Section   41   and  power   to  search  and  seizure

without warrant under Section 102. But if after completion of Investigation, police submits a report under Section 173 Cr.P.C. to the Court, cognizance on such a report cannot be taken because of the embargo created by Section 32 of the Act, which postulates that the cognizance of the offences under the Act can be taken only on the complaint filed by the "Inspector" or by the "person aggrieved" or by the "recognised consumer association". Section 32 of the Act reads as under :

32. Cognizance of offences.--(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 any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter."

It is needless to observe that despite all criticism, the Investigating Officers of the Police are better trained and equipped for prevention, investigation and prosecution of crimes. To repeat, most of the offences punishable under Section 27 of the Act for manufacture or sale etc. of spurious or adulterated drugs are cognizable and non-bailable. Some of the offences are friable by the Court of Sessions.

The offences being cognizable, the aggrieved person has a right to lodge a report with the police and the police, in turn, is bound to register a formal FIR and start Investigation, which culminates in a report under Section 173 of the Cr.P.C. Therefore, I see no reason why cognizance of the offences under the Act should not be permitted to be taken on such a report by the police agencies or by the CBI in suitable cases. There can be no manner of doubt that several life saving drugs can make difference between life and death to a patient at a critical time. The use of spurious/adulterated drugs would be a horrible thing even to contemplate. However, it is for the Legislature to consider suitable amendments. Till such time, remedial steps are taken, in my view, It is permissible to adopt a functional approach to give effect to the purpose and spirit of the enactment. The procedure endorsed by the Division Bench of this Court in Moti Lal's case (supra) should be followed. After completion of Investigations, instead of sending report under Section 173 Cr.P.C. to the Drug Inspector, the same should be filed In the court along with a complaint under Section 32 of the Act with a specific prayer that cognizance be taken on the complaint. The Drug Inspector should be associated during investigations so that procedural aspects of seizure analysis are properly followed.

8. Even in the cases, where the final report under Section 173 Cr.P.C. is sent by the police to the Drug Department of the Government as stated by DCP in his affidavit, the investigating agency should continue the follow up action as in other cases investigated by them so that the prosecution does not suffer.

9. Before concluding, I would like to record appreciation for the assistance rendered by Shri Aman Lekhi, learned amices curiae.

With the above observations, petition is dismissed. Trial court is directed to expedite the trial. Trial court record be returned forthwith.