Jharkhand High Court
Satyendra Kumar Singh @ ... vs The State Of Jharkhand And Another on 24 April, 2023
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 513 of 2014
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Satyendra Kumar Singh @ Sateyendar Kumar, S/o Kamlakant Singh, P.O.
and P.S. Masaurhi, District-Patna, Bihar .... Petitioner
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Rajeeva Sharma, Sr. Advocate
For the State :- Mr. P.D.Agarwal, Advocate
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5/24.04.2023 This petition has been filed for quashing of entire criminal
proceeding and order dated 02.01.2014 passed by learned Chief Judicial
Magistrate, Giridih in connection with Giridih (Town) P.S.Case No.138 of
2005, T.R.Case No.3763 of 2014, G.R.No.905 of 2005, pending in the
court of learned Chief Judicial Magistrate, Giridih.
2. The FIR has been lodged alleging therein that as per the
written information dated 18.05.2005 by the Drug Inspector, Giridih to
the Officer In Charge, Giridih is that on a confidential report a joint raid
was conducted with the help of police at M/s New Patna Transport
Agency situated in front of Jain Gas Agency, Barmasia, Giridih. During
raid 6 cartons containing medicine manufactured by Archem Drugs
Private Limited, Industrial Area, Fatwah, Patna were found. On being
asked to furnish the invoice Ajay Kumar Singh, Manager, New Transport
Company stated that invoice has not been sent but produced a goods
receipt dated 10.05.2005 bearing no.11970. The samples of Avaron
Injection and Arkaplex-T syrup were sealed for test and the cartons were
seized. Further it was stated that the petitioner company is
manufacturing misbranded drugs and the same was sent to concern
which does not hold license to sell the aforesaid drugs.
3. Mr. Rajeeva Sharma, the learned Senior counsel appearing
for the petitioner submits that the prosecution can be lodged only by way
of complaint and not by way of FIR. He submits that the FIR has been
lodged and the investigation has also been made by the Police Inspector
and thereby some of the provisions as such sections 22 and 23 of the
Drugs and Cosmetics Act cannot be said to have been complied as the
same can be lodged by the Drug Inspector and not by the Police
Inspector and as such the entire proceeding gets vitiated.
4. Mr. Agarwal, the learned counsel appearing for the
respondent State submits that the illegality has been found that is why
the learned court has taken cognizance.
5. It appears that the point involved in this petition has also
been considered by the Hon'ble Supreme Court in the case of Union of
India v. Ashok Sharma and Others (Criminal Appeal No.200 of 2020
(S.L.P. (Criminal) No.4178 of 2019)] wherein at paragraph no.150 of the
said judgment it has been 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. "
6. In view of the judgment rendered by the Hon'ble Supreme
Court, the prayer made in the petition is allowed and the entire criminal
proceeding in connection with Giridih (Town) P.S.Case No.138 of 2005,
T.R.Case No.3763 of 2014, G.R.No.905 of 2005, pending in the court of
learned Chief Judicial Magistrate, Giridih is quashed.
7. If any cause of action still survives, the respondent State
may proceed in accordance with law.
8. Cr.M.P. No. 513 of 2014 Disposed of.
9. Pending petition if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/
