Dr. Om Prakash Singh vs State
2003 Latest Caselaw 790 Del

JUDGMENT

J.D. Kapoor, J.

1. By this common order, both these petitions are disposed of as these are filed against the identical order.

2. Admittedly the petitioner in Crl.M(M) 397/2000 who is an Assistant Professor in the Department of Dermatology, All India Institute of Medical Sciences had prescribed ayurvedic medicines to some patients. One of the patients purchased the said medicines from the shop of co-accused which was later on found to be spurious and fake. By impugned order dated 10.12.1999, learned Metropolitan Magistrate ordered for framing the charges by finding that there was a prima facie case against the petitioner among other co-accused for the offence under Section -33I(1)(a)(ii) and (b) of Drugs and Cosmetics Act read with Section 120B IPC and under Section 275 and 276 IPC.

3. Through this petition, the legality of the impugned order has been challenged solely on the ground that the complaint was instituted by an Inspector who was not authorised to institute the complaint without the previous sanction of the authority specified under sub-section (4) of Section 33(G) of the Drugs and Cosmetics Act, 1940. Sub-section (4) of Section 33(G) of the Drugs and Cosmetics Act, 1940 provides that "every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code and shall be officially sub-ordinate to such authority as the Government appointing him may specify in this behalf."

4. The prosecution has relied upon the approval given to the Inspector concerned by Shri S.L.Sobti, Deputy Drugs Controller, Delhi as the Licensing Authority.

5. The prosecution has relied upon the notification No.F.21(12)/73-M & PH(2) dated 15.1.1974 notifying Shri Suresh Kumar Sharma as Inspector which is to the following effect:-

"In exercise of the powers conferred by Section 33(G) of the Drugs and Cosmetics Act, 1940, the Administrator is pleased to appoint Shri Suresh Kumar Sharma to be an Inspector for the Union Territory of Delhi in respect of Ayurvedic (including Sidha) Drugs."

6. Notification No.F.21(12)/73-M & PH(4) is the notification appointing Mr.P.K.Mishra, Director of Health Services, Delhi as the authority to whom, every Inspector appointed under sub-section (1) of Section 33G of the said Act, shall be officially subordinate.

7. The contention of learned counsel for the petitioner is that previous sanction of Sh.P.K.Mishra who was the authority appointed under section 33G(4) was not obtained by Inspector Suresh Kumar Sharma before instituting the prosecution. It is not disputed that Sh.Suresh Kumar Sharma was duly appointed as Inspector and therefore is officially subordinate to Sh.P.K.Mishra, Director of Health Services, Delhi for the purpose of section 33M. Section 33M lays down the following two conditions for prosecution i) the prosecution shall be instituted by Inspector and Inspector alone; (ii) Such a prosecution shall be instituted with the previous sanction of authority specified under sub-section (4) of Section 33G which in the instant case is by way of aforesaid notification Shri P.K.Mishra, Director of Health Services, Delhi.

8. So far as the competence of Sh.Suresh Kumar Sharma to institute the prosecution is concerned, there is no dispute as he has been by way of aforesaid notification is duly appointed as Inspector for the Union Territory of Delhi in respect of Ayurvedic Drugs. What is being agitated is that Sh.Suresh Kumar Sharma though authorised to institute the prosecution was required to obtain the previous sanction of Sh.P.K.Mishra as without his sanction the cognizance of the offence could not be taken. However, the aforesaid contention of learned counsel for the petitioner was repelled by the learned MM by relying upon the incorrect and inapplicable provisions of the Drugs and Cosmetics Act.

9. Perusal of the impugned order shows that the learned M.M did not deal with the contention raised by the counsel for the petitioner but referred to sub-section (2) of Section 33M which provides that 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 and proceeded on the presumption that this section does not indicate that the sanction is a condition precedent for taking cognizance by court for offence under Chapter IV-A of Drugs and Cosmetics Act, 1940 and fell upon erroneous conclusion that sanction is not a condition precedent for taking cognizance by the court. In support of this view, the learned Magistrate placed reliance upon Jas Karan Singh Vs. State 1974 Criminal L.J 728. This judgment dealt with the provisions of Section 32 of the Act which is part of Chapter IV and held as under:-

"Sanction is not a condition precedent for the taking cognizance by Court of complaint for offence under the Act. Section 32 does not provide that sanction is condition precedent for taking cognizance of complaint. The word `instructions' in Rule 51 is not synonymous with `prior sanction'. It merely provides that the power to institute prosecution shall be exercised subject to instructions of controlling Authority. The instructions contemplated by the rule can only be such as supplement the powers. It could not have been intended by rule-making Authority that Controlling Authority could by executive instructions obstruct performance of duties imposed by the rule itself.

10. There is a distinction and conspicuous difference in the language of Section 32 and Section 33M. Section 32 provides that 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 persons is a member of that association or not. Section 33M provides that no prosecution under this Chapter shall be instituted except by an Inspector (with the previous sanction of the authority specified under sub-section (4) of section 33(G) Sub-section (4) of Section 33G provides that appointment of an authority by the Government under whom the Inspector shall be officially subordinate. Such an authority has been appointed by the Government by way of aforesaid notification and in this case is Sh.P.K.Mishra, the Director of Health Services. So far as Sh.Suresh Kumar Sharma is concerned he has been appointed in the notification as an Inspector for the purpose of Ayurvedic drugs including Siddha. Even in Jas Karan's case, Supreme Court held that there is a difference between word "instructions" and words "prior sanction". These are two different connotations and have different meaning and import.

11. As is apparent, the ratio of Jas Karan Singh case was wrongly applied by the learned MM while holding that sanction is not a condition precedent for taking cognizance by court of complaint for offence under the Act.

12. It is contended by counsel for the respondent that in the pre-charge evidence the petitioner did not raise any such plea nor did he question the authority of Inspector to launch prosecution in the absence of sanction of authority specified in sub-section (4) of Section G and therefore he is estopped from raising this plea in these proceedings. I am afraid this is not the correct perception of the position of law. Mandatory provisions of law have no relevance at all times and cannot be ignored. There is no estoppal against law. Another fact agitated by the learned counsel is that the post-facto sanction has been accorded by the authority concerned. If it is so, the prosecution shall be at liberty to institute the fresh complaint on the basis of the sanction accorded by the authority but so far as instant prosecution is concerned it cannot be sustained in view of mandatory provisions of Section 33M.

13. In the result, both the petitions are allowed. Proceedings against the petitioners are quashed. However, this will not be a bar for launching the prosecution after complying with the provisions of Section 33M of the Act.