Rakesh And Anr vs The State Of Karnataka
2021 Latest Caselaw 6048 Kant

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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.201223/2021

BETWEEN:

1.     SRI RAKESH S/O HANAMANTH HALAGANI
       AGED ABOUT 36 YEARS
       OCC: PRIVATE SERVICE

2.     SMT. ROOPA W/O RAKESH HALAGANI
       AGED ABOUT 32 YEARS
       OCC: PRIVATE SERVICE

       BOTH ARE R/O J.M.ROAD
       INDIRA NAGAR, VIJAYAPUR-586 101
                                         ... PETITIONERS

(BY SRI S.S.MAMADAPUR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
THROUGH GANDHI CHOWK PS,
REP BY ITS ADDL.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
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REGISTERED    BY   THE   RESPONDENT     POLICE   IN     CRIME
NO.84/2021 OF GANDHI CHOWK P.S FOR THE OFFENCE
PUNISHABLE UNDER SECTION 420 OF IPC AND SEC.18(c) OF
THE DRUGS AND COSMETICS ACT 1940 PENDING ON THE FILE
OF THE I ADDL. CIVIL JUDGE (J.D) AND JMFC, VIJAYPUR.



      THESE PETITIONS 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.84/2021 for the offences

punishable under Section 420 of IPC and Section 18(C) of

Drugs and Cosmetics Act, 1940 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 29.04.2021, 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 do 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. 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 420 of 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 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 29.04.2021 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

29.04.2021 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.84/2021 for the offence

punishable under Section 420 of IPC and under Section

18(C) of the Drugs and Cosmetics Act 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