Mohammad Iqbal Mir vs State Of J&K & Anr
2022 Latest Caselaw 332 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                     AT SRINAGAR

                                                Reserved on: 05.04.2022
                                                Pronounced on:08.04.2022


                          CRMC No.329/2017

MOHAMMAD IQBAL MIR                               ... PETITIONER(S)

             Through: - Mr. Areeb Kawoosa, Advocate.

Vs.

STATE OF J&K & ANR.                             ...RESPONDENT(S)

             Through: - Mr. Asif Maqbool, Dy. AG.


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1) The petitioner has challenged the complaint filed by respondent

No.2 against him alleging commission of offences under Section 18(c) of

Drugs and Cosmetics Act read with Rule 65(17) of Drugs and Cosmetics

Rules as also the order dated 22nd June, 2013, passed by learned Judicial

Magistrate, 1st Class, Pampore, whereby process has been issued against

the petitioner.

2) The facts emerging from the record reveal that on 22.06.2013,

respondent No.2 filed a complaint against the petitioner as well as co-

accused Jan Mohammad Mir and Bashir Ahmad Mir, before the Court of

Judicial Magistrate, 1st Class, Pampore. In the said complaint it was

alleged that, while conducting routine inspection of Pampore area on

19.12.2012, one medical shop under the name and style of M/S Fair Price

Medical Shop situated at SDH, Pampore, was found indulging in stocking,

exhibiting for sale and selling drugs and medicines by way of retail. As

per the complaint, Jan Mohammad Mir and Bashir Ahmad Mir are the

partners of the aforesaid medical shop. On 08.01.2013, the premises of the

shop was again inspected and drugs, bills and physician's sample (not for

sale) were found on the shelves of the premises which were seized and,

accordingly, permission for prosecution was obtained against Jan

Mohammad Mir and Bashir Ahmad Mir. The complaint goes on to allege

that the aforesaid two accused have committed an offence by contravening

Section 18(c) of the Drugs and Cosmetics Act, 1940, by stocking,

exhibiting for sale and selling the drugs and medicines without drug sale

licence.

3) The learned Magistrate vide his order dated 22.06.2013, recorded

his satisfaction that offences under Section 18(c) and Rule 67(17) of

Drugs and Cosmetics Act/Rules, are, prima facie, made out against the

accused including the petitioner and, accordingly, the process was issued

against them.

4) The petitioner has contended that there is no allegation in the

complaint against him nor there is any material annexed to the complaint

that would show any involvement of the petitioner in the alleged offence.

It is further contended that the learned Magistrate has taken cognizance of

the offence and issued process against the petitioner without applying his

mind, inasmuch as not even sanction for prosecution was granted against

the petitioner.

5) I have heard learned counsel for the parties and perused the record

of the case including the record of the trial court.

6) A perusal of the complaint reveals that there is no allegation

contained in the complaint as against the petitioner herein. In the

complaint it is clearly stated that the Fair Price Medical Shop that was

inspected belongs to Jan Mohammad Mir and Bashir Ahmad Mir. The

order granting permission for prosecution also pertains to only the

aforesaid two accused and not to the petitioner. In the absence of any

allegation against the petitioner in the complaint and in the absence of any

material on record to even remotely suggest the involvement of the

petitioner in the alleged offences, it cannot be stated that a case for

proceeding against him is made out. Merely because the petitioner, as per

certain documents on record, was working as a salesman does not mean

that the offences are made out against him. It was the obligation of the

owners of the shop to produce the licence before the concerned authorities

and even as per the complaint it were the partners of the shop who were

running the same without any valid drug licence. It is not the case of the

complainant that the petitioner was running the shop. In the absence of

any material on record against the petitioner in the complaint, no process

could have been issued against him.

7) Issuance of process in a criminal case is a serious matter and a

Magistrate before issuing process against a person in a criminal complaint

has to apply his mind to the material on record and he is not expected to

act mechanically. Once a process is issued in a criminal complaint against

an accused, he is supposed to apply for grant of bail and on his failure, he

can be remanded to custody. So, it is not like issuing a notice in a civil

case but the consequences of issuing a process in a criminal case against

an accused are serious. Therefore, before issuing a process in a criminal

complaint against an accused, a criminal court has to apply its mind to the

material on record and derive its satisfaction as to whether any offence is

made out against a person against whom a process is being issued. In the

instant case, the learned Magistrate, it seems, has mechanically issued the

process against the petitioner without there being any allegation in the

complaint against him and without there being any material on record

suggesting his involvement in the alleged offence.

8) Apart from the above, the complaint, which is subject matter of the

instant petition, is with regard to the commission of offence under Section

18(c) of the Drugs and Cosmetics Act, which falls under Chapter IV of

the Act. Section 32 of the said Act, which also falls in Chapter IV of the

Act, deals with cognizance of offences. It reads as under:

"32. Cognizance of offences--(1) No prosecution under this Chapter shall be instituted except by--

(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 or 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.

9) From a bare perusal of the aforesaid provision, it clear that no Court

inferior to that of a Court of Session can try an offence punishable under

the aforesaid Chapter. The amendment providing for trial by a Court of

Session has been inserted vide Act 26 of 2008 and the same came into

effect from 10.09.2009. In the instant case, the complaint has been filed

on 22.06.2013. Therefore, the learned Magistrate had no jurisdiction to try

the complaint in question but the record shows that he has not only taken

cognizance of the offence but has proceeded to hold trial of the case. On

this ground also, the proceedings against the petitioner in the impugned

complaint are liable to be quashed.

10) For the foregoing reasons, this petition is allowed and the impugned

complaint and the order issuing process, to the extent of petitioner, are

quashed.

11) A copy of this order be sent to the learned Magistrate for

information.

(Sanjay Dhar) Judge Srinagar 08.04.2022 "Bhat Altaf, PS"

                   Whether the order is speaking:             Yes/No
                   Whether the order is reportable:           Yes/No