Jharkhand High Court
Dr. Pankaj Kumar vs The State Of Jharkhand on 27 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 384 of 2016
Dr. Pankaj Kumar ..... ... Petitioner
with
W.P.(Cr.) No. 311 of 2016
1. Dr. Anil Kumar
2. Dr. M. Mehta @ Meera Mehta ..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Sri Pranay Prabhat, Drug Inspector,
Ranchi-IV, Chutia, Ranchi. ...... ... Respondents.
[in both cases]
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Ankur Anand, Advocate.
: Mr. Ankit Kumar, Advocate
For the State : Mr. Ravi Kerketta, Advocate.
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08/ 27.04.2023 In both the cases, common facts and FIR are under challenge,
that's why both the petitions have been heard together with the consent of
the parties.
2. In both the cases, prayer has been made for quashing of the
entire criminal proceeding including the FIR, being Chutia P.S. Case No.
96 of 2016 corresponding to G.R. No. 3787 of 2016, registered for the
offence under Sections 27(b)(ii) and 27(d) of the Drugs and Cosmetics
Act, 1940, against the petitioners, pending in the court of learned Judicial
Magistrate, 1st class, Ranchi.
3. Learned counsel appearing for the petitioners submits that on
27.06.2016 the O.P. No. 2 along with other persons suddenly came in the
premises of the petitioners and under the pretext of non-production of
license for sale of medicines illegally seized the medicines and lodged the
FIR. He further submits that the petitioner in W.P.(Cr.) No. 384 of 2016
has done his MBBS from Rajendra Medical College, Ranchi and is duly
registered and qualified to practice and he has been practicing since 1988.
He further submits that petitioner No. 1 in W.P.(Cr). No. 311 of 2016 has
done his MBBS from NMCH, Patna and is duly registered and qualified to
practice and he has been practicing since 1985 and petitioner No. 2 has
done her MBBS from JLNMC&H, Ajmer, Rajasthan and is duly registered
and qualified to practice and is practicing as such since 1987 and is
present in Government job.
4. Learned counsel appearing for the petitioners further submits
that the FIR under the Drugs and Cosmetics Act, 1940 is not maintainable
and only complaint case has to be filed. He further submits that the
investigation has been by the police, which is also not sustainable in the
eyes of law.
5. Learned counsel appearing for the State submits that illegality
has been found that's why the FIR has been lodged against the petitioners.
6. 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, reported in (2021) 12 SCC 674, wherein at
paragraph No. 170 of the said judgment it has been held as under:-
"170. Thus, we may cull out our
conclusions/directions as follows:
170.1 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.
170.2. 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.
170.3. 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.
170.4. 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.
170.5. 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.
170.6. 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.
170.7. 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. "
7. It is well settled that when the case is not made out and the
High Court comes to a conclusion that to allow the proceeding to continue
will amount to abuse of process of law, the High Court is competent to
exercise power under Section 482 Cr.P.C. and also under Article-226 of
the Constitution of India, at any stage. A reference may be made to the
judgment passed by the Hon'ble Supreme Court in Anand Kumar
Mohatta v. State (NCT of Delhi); reported in (2019) 11 SCC 706.
Paragraph 16 of the said judgment is quoted herein below:-
"16. There is nothing in the words of this section
which restricts the exercise of the power of the Court
to prevent the abuse of process of court or
miscarriage of justice only to the stage of the FIR. It
is settled principle of law that the High Court can
exercise jurisdiction under Section 482 CrPC even
when the discharge application is pending with the
trial court [G. Sagar Suri v. State of U.P., (2000) 2
SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh
Kumar v. State of A.P., (2013) 10 SCC 591, para 20 :
(2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] .
Indeed, it would be a travesty to hold that
proceedings initiated against a person can be
interfered with at the stage of FIR but not if it has
advanced and the allegations have materialised into
a charge-sheet. On the contrary it could be said that
the abuse of process caused by FIR stands
aggravated if the FIR has taken the form of a
charge-sheet after investigation. The power is
undoubtedly conferred to prevent abuse of process of
power of any court."
8. In view of the above facts, reasons and analysis, the entire
criminal proceeding including the FIR, being Chutia P.S. Case No. 96 of
2016 corresponding to G.R. No. 3787 of 2016, registered for the offence
under Sections 27(b)(ii) and 27(d) of the Drugs and Cosmetics Act, 1940,
against the petitioners, pending in the court of learned Judicial Magistrate,
1st class, Ranchi, are hereby, quashed.
9. Both these petitions are allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
