Ganesh Prasad vs The State Of Jharkhand
2022 Latest Caselaw 2982 Jhar

                                      1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(Cr.) No. 192 of 2020

Ganesh Prasad                                       ......    Petitioner
                          Versus
1.The State of Jharkhand
2. The Superintendent of Police, City, Ranchi
3.The Officer-in-Charge of Ratu Police Station, Ratu, Ranchi
4. Sri Shankar Dayal Singh, Police Inspector-cum-Investigating Officer of Ratu P.S.
Case No. 305/2019, Ratu, Ranchi
                                                      ...... Respondents

                           ---------

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

---------

For the Petitioner: Mr. Anil Kumar Sinha, Advocate For the State : Mr. Deepankar, Advocate ........

06/Dated: 03/08/2022 Heard Mr. Anil Kumar Sinha, learned counsel for the petitioner and Mr.

Deepankar, learned counsel for the State.

2. This petition has been filed for quashing of entire criminal proceeding

in connection with Ratu P.S. Case No. 305/2019, registered under section 420 of

the Indian Penal Code and under section 18(c), 22 (cca), 27 (B) (II) and 22 (3) of

the Drugs and Cosmetic Act, 1940, pending in the Court of learned Additional

Judicial Commissioner,-II, Ranchi.

3. Mr. Anil Kumar Sinha, learned counsel for the petitioner submits that

the case has been lodged on the basis of complaint of Drug Inspector by the

Officer-in-Charge, Ratu Police Station on 17.10.2019. He further submits that in

the joint enquiry made by the team of Drug Inspector it was found that medicine

was wrongly stored and for that the petitioner has not been able to produce any

document. He further submits that in view of provision of Drugs and Cosmetics

Act, 1940, only complaint shall be filed by the Drug Inspector who will proceed

whereas in the case in hand police inspector has registered the case and

investigated the matter. He further submits that this aspect of the matter is settled

in the light of the judgment of the Hon'ble Supreme Court in the case of "Union

of India Vs. Ashok Sharma and Others" (Criminal Appeal No. 200 of

2020 (S.L.P. (Criminal) No. 4178 of 2019)), wherein para 150 the Hon'ble

Supreme Court has held as under:-

"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 CrPC, 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 CrPC 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 CrPC, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the CrPC. 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 CrPC.

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 CrPC, but also immediately report the arrests to their superior Officers. "

In the said judgement it has been held that in view of Section 32 of the Act

and also the scheme of the Cr.P.C., the Police Officer cannot prosecute offenders in

regard to such offences and not entitled to investigate the case.

4. Mr. Deepankar, learned counsel for the State fairly submits that so far

as proposition in the case of "Ashok Sharma" (supra) decided by the Hon'ble

Supreme Court is concerned, it is not in dispute. He further submits that ingredient

of section 420 I.P.C. is involved in this case that is why police has investigated the

matter.

5. The Court has perused the contents of the F.I.R. and finds that there

is no allegation of cheating. If it is proved that the intention of cheating was from

very beginning section 420 I.P.C. is attracted.

6. On perusal of F.I.R. it appears that the F.I.R. has been lodged on the

basis of complaint of Drug Inspector. It is well settled that once special statute is

there and punishment is prescribed therein Sections of Penal Code are not

attracted.

7. Under Section 32 of the Act Drug Inspector, aggrieved person or a

member of any association are authorized for filing complaint case only on the

basis of a legally instituted criminal proceeding, the criminal court is authorized to

take cognizance and for prosecution of the accused. If it is not done, the entire

criminal proceeding is bad, illegal and without jurisdiction and such proceedings

are liable to be quashed.

8. In view of the aforesaid facts and in view of the Judgment of the

Hon'ble Supreme Court in the case of "Ashok Sharma" (supra), the entire criminal

proceeding in connection with Ratu P.S. Case No. 305/2019, registered under

sections 420 of the Indian Penal Code and under section 18(c), 22 (cca), 27 (B)

(II) and 22 (3) of the Drugs and Cosmetic Act, 1940, pending in the Court of

learned Additional Judicial Commissioner,-II, Ranchi, are hereby quashed.

9. This writ petition stands allowed and disposed of.

( Sanjay Kumar Dwivedi, J.) Satyarthi/