Karnataka High Court
Jakkappa And Ors vs The State Of Karnataka on 14 December, 2021
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201184/2021
BETWEEN:
1. SRI. JAKKAPPA S/O MALKARI TADALGI
AGED ABOUT 24 YEARS, OCC: PRIVATE SERVICE,
R/O VIJAYPUR.
2. SRI IMTIYAZ S/O HUSENSAB MATTI
AGED ABOUT 31 YEARS, OCC PRIVATE SERVICE,
R/O VIJAYPUR.
3. SRI SAYYED @ MUNNA
S/O MOULASAB AHERI AGED ABOUT 25 YEARS,
OCC: OT ASST., R/O YOGAPUR COLONY,
VIJAYPUR.
4. SRI SANJEEV S/O NARSIMHA JOSHI
AGED ABOUT 44 YEARS, OCC: PHARMACIST,
R/O GANESH NAGAR, VIJAYPUR,
5. SRI SHIVARAJ KUMAR S/O SIDDAGOND MADARI
AGED ABOUT 25 YEARS, OCC: PRIVATE SERVICE,
R/O VIJAYPUR.
6. SRI MAULALI S/O RAZAKSAB HATTARKIHAL
AGED ABOUT 24 YEARS, OCC: PRIVATE SERVICE,
R/O AHERI, VIJAYPUR.
7. SRI RAJESAB S/O BABU HATTARKIHAL
AGED ABOUT 28 YEARS, OCC: PRIVATE SERVICE,
R/O VIJAYPUR.
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8. YALLAMMA D/O PUNDALIK KANNAL
AGED ABOUT 31 YEARS, OCC: PRIVATE SERVICE,
R/O VIJAYPUR.
9. SUREKHA D/O DONDIBA GAYAKWAD
AGED ABOUT 34 YEARS, OCC: PRIVATE SERVICE,
R/O VIJAYPUR.
... PETITIONERS
(BY SRI S.S.MAMADAPUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH GANDHI CHOWK PS,
REP BY ITS STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT BUILDING,
KALABURAGI-585107.
... RESPONDENT
(BY SRI GURURAJ V.HASILKAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO QUASH THE FIR
REGISTERED BY THE RESPONDENT POLICE IN CRIME
NO.88/2021 OF GANDHI CHOWK POLICE STATION VIJAYAPURA,
FOR THE OFFENCE PUNISHABLE UNDER SECTION 420, 409 R/W
SEC. 149 OF IPC AND 5 OF KARNATAKA EPIDEMIC DISEASE
ACT 2020 AND SECTION 18(c) OF THE DRUGS AND COSMETICS
ACT AND DRUGS (PRICE CONTROL) ORDER 2013 PENDING ON
THE FILE OF THE I ADDL. CIVIL JUDGE (JD) AND JMFC,
VIJAYAPURA.
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THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C.,
praying this Court to quash the FIR registered by the
respondent police in Crime No.88/2021 for the offences
punishable under Sections 420 and 409 read with section
149 of IPC and Section 5 of the Karnataka Epidemic
Diseases Act, 2020 and Section 18(C) of Drugs and
Cosmetics Act, 1940 and Drugs (Price Control) Order 2013
pending on the file of I-Additional Civil Judge, (J.D.), and
JMFC, Vijayapura.
2. Heard the learned counsel for the petitioners
and the learned High Court Government Pleader for the
State.
3. The factual matrix of the case is that based on
the complaint lodged by the Assistant Drugs Controller
Office of Assistant Controller, Vijayapur on 07.05.2021, the
respondent police have registered a case for the above
offences. The allegation is that with an intention to cheat
the Covid-19 patients and their relatives unauthorisedly
obtained Remdesivir Injection meant for the patients in
Government Hospital and these petitioners were selling the
same in the black market at higher price in order to make
wrongful gain and thereby cheating the Government as
well as the Covid-19 patients.
4. The learned counsel for the petitioners
vehemently contended that very registration of the case
against the petitioners is arbitrary, illegal and not tenable.
The registration of FIR is not contemplated under the
provisions of the Drugs and Cosmetics Act, 1940
(hereinafter referred as 'the Act' for short). The proper
course is to initiate action under the provisions of the Act
is to file a private complaint that too by prescribed
authority. Hence, it is a fit case to exercise power under
Section 482 of Cr.P.C. The respondent police does not
have any jurisdiction to investigate into the offences
committed under the provisions of the Act. The power of
investigation into an offence punishable under the Act is
conferred upon the Drugs Inspector who in turn has to
follow the provisions as contemplated under sections 22
and 23 of the Act. The registration of FIR under Section
154 of Cr.P.C., by the respondent police is directly in
contravention of the principles laid down by the Hon'ble
Apex Court in the case of Union of India vs. Ashok
Kumar Sharma and Others reported in (2020) AIR SC
5274 wherein the Hon'ble Apex Court held that
respondent Police has no jurisdiction to register the FIR.
The learned counsel would contend that the respondents
have not followed the mandatory procedure as
contemplated under Section 22, 23 and 32 of the Act. He
would submit that with an oblique motive, intentionally
invoked the provision of section 420 of IPC. He would
vehemently contend that even the provisions of Karnataka
Epidemic Disease Act, 2020 also do not attract to the case
on hand. The sum and substance of the argument of the
learned counsel for the petitioners is that, FIR is not
permissible and police cannot investigate the matter and
Drugs Inspector only can conduct the investigation and to
file the complaint before the proper Court. By relying upon
the judgment in the case of Ashok Kumar Sharma
referred supra, he brought to the notice of this Court
paragaph-150 wherein the Hon'ble Apex Court has given
directions and culled out in the operative portion that in
view of Section 32 of the Act and also the scheme of
Cr.P.C., the police officer cannot prosecute the offenders in
regard to such offences. Only the persons mentioned in
Section 32 are entitled to do the same and police officer
cannot register an FIR under Section 154 of the Cr.P.C., in
regard to cognizable offences under Chapter IV of the Act
without any warrant and otherwise treating it as a
cognizable offence.
5. The learned counsel relied upon the judgment
of the Patna High Court in the case of M/s Torque
Pharmaceuticals Pvt. Ltd., and Another vs. State of
Bihar through Deptt. Of Health, Govt. of Bihar and
Others reported in 2013(2) Crimes 616 (Pat.) wherein
also the Patna High Court held that police officers are
excluded for the purpose of instituting prosecution under
Drugs and Cosmetics Act, 1940.
6. The learned counsel relied upon the judgment
of this Court in the case of Narapathkumar S/o
Duragchandaji Bhandari vs. State of Karnataka
reported in 2020 (2) AKR 812 and brought to the notice
of this Court paragraph-7 wherein it is observed only in
order to avoid permission under Section 155(2) of Cr.P.C.,
the offence under Section 420 of IPC is invoked. The
learned counsel would submit that in this case also offence
under Section 420of IPC is invoked and hence, it requires
interference of this Court.
7. Per contra, learned High Court Government
Pleader would submit that in the case on hand the offences
under Section Drugs and Cosmetics Act and the offence
punishable under Section Indian Penal Code and under
Section 5 of the Karnataka Epidemic Disease Act, 2020 are
also invoked. Hence, there is no bar to institute the
complaint and police can register the case.
8. Having heard the learned counsel for the
petitioners and learned High Court Government Pleader,
admittedly, the Drugs Inspector has given the complaint to
the police vide complaint dated 07.05.2021 and based on
the same seizure was done by the police prior to the
registration of FIR. No doubt, the offences invoked under
the Act is cognizable offences, it is settled law that police
cannot prosecute the matter and even the Hon'ble Apex
Court in the judgment of Ashok Sharma referred supra
has categorically held that in view of section 32 of the Act
and also scheme of criminal Procedure Code, the police
officer cannot prosecute the offenders in regard to such
offences. Only the persons mentioned in Section 32 are
entitled to do the same and also observed that 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.
But having regard to the scheme of Code of Criminal
Procedure and also 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 an FIR under section 154 of the
Cr.P.C., in regard to cognizable offences under Chapter IV
of the Act and he cannot investigate such offences under
the provisions of Cr.P.C.
9. However, Hon'ble Apex Court held in regard to
the provisions of Section 22(1)(d) of the Act that an arrest
can be made by the Drugs Inspector in regard to
cognizable offence falling under Chapter-IV of the Act
without any warrant and otherwise treating it as a
cognizable offence. However, it is held that he is bound by
the law as laid down in D.K. Basu's case and to follow the
provisions of Cr.P.C. The Hon'ble Apex Court further
observed in regard to power of arrest and made it clear
that Police Officer do not have powers to arrest in respect
of cognizable offence under Chapter-IV of the Act will
operate with effect from the date of the judgment and this
judgment was delivered on 28.08.2020. In the case on
hand, the case has been registered subsequent to the
judgment passed by the Hon'ble Apex Court i.e., on
07.05.2021 and hence, the judgment of the Hon'ble Apex
Court aptly applicable to the case on hand which has been
relied upon by the petitioners' counsel.
10. It is also important to note that Section 32
(1)(d) of the Act is very clear that prosecution has to be
launched under Section 32 of the Act and section 32 (2)
also says that no Court inferior to that of a Court of
Session shall try an offence punishable under this Chapter
and the same also to be prosecuted by the only authorised
person who has been authorised but in this Case, the
complaint is given by the Drugs Inspector is not launched
before the concerned Court as envisaged under section 32
of the Act instead of complaint is given to the Police Officer
and Police Officer investigated the matter and hence, there
is clear bar under Section 32 of the Act as held by the
Hon'ble Apex Court.
11. This Court in the order passed in Criminal
Petition No.919/2020 dated 24.03.2021 elaborately
discussed with regard to launching of the case by the
prosecution when the offence invoked under Section 18 of
the Act, the same has to be launched under Section 32 of
the Act. In the case on hand, the police initiated the
proceedings by registering the FIR and based on the
complaint of the Drugs inspector, the police have taken up
the matter and now the matter is under the crime stage,
and not yet filed the final report under Section 173 of
Cr.P.C., Hence, it is a fit case to invoke section 482 of
Cr.P.C., as Police Officer cannot proceed in the matter
since there is bar under Section 32 of the Act and the
Drugs Inspector who is authorised can proceed against the
petitioners invoking section 32 of the Act.
12. In view of the observations made above, I pass
the following:
ORDER
The petition is allowed.
The criminal prosecution launched by the Police
Officer in respect of crime No.88/2021 for the offences
punishable under Section 420, 409 read with Section 149
of IPC and Section 5 of the Karnataka Epidemic Disease
Act, 2020 and under Section 18(c) of the Drugs and
Cosmetics Act and Drugs(Price Control) Order, 2013 is
hereby quashed.
However, liberty is given to the Drugs Inspector to
proceed in accordance with law invoking the jurisdiction
under Section 32 of the Act.
Sd/-
JUDGE
VNR
