Punjab-Haryana High Court
Manish Kharab vs State Of Haryana on 3 July, 2023
2023:PHHC:083870
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-37427-2019 (O&M)
Reserved on: May 22, 2023
Pronounced on: July 03, 2023
Dr. Manish Kharab ...Petitioner
vs.
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. D.K.Tuteja, Advocate for the petitioner.
Mr. Gaurav Bansal, AAG Haryana.
****
HARKESH MANUJA, J.
1. By way of present petition filed under Section 482 Cr.P.C.,
prayer has been made for quashing of FIR No.85 dated 08.02.2018
under Section 18(c) Drugs and Cosmetics Act, 1940, Section 15 (2) (B)
Indian Medical Council Act, 1956 and Section 420, 120-B IPC, 1860
registered at Police Station Quilla Panipat, District Panipat (Annexure-
P-1) and the final report (Annexure P-2), qua the petitioner.
2. Brief facts of the case are that on 08.02.2018, a team was
constituted by Civil Surgeon, Panipat vide letter No.132 /CMPS/KNL
dated 07.02.2018 to conduct a raid at the clinic of Dr. Manish Kharb,
5/7, Sanoli Road near Delhi Juice Corner, Panipat. Raiding team along
with flying squad reached at the place and found that Mr. Karambir S/o
Sunchro, R/o Jattal Road, Panipat was sitting who told that Chander
Parkash @ Chintu S/o Om Parkash, R/o 514, HUDA, Phase-I, Section-
1, runs the clinic. Dr. Chander Parkash was asked to reach at the spot,
who accepted that he was running the clinic, but could not produce any
degree and it was told that his daily OPD was of 20-30 cases and
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that the clinic was in the name of Dr. Manish Kharb. On being called,
Dr. Manish Kharb accepted that he was running the clinic in morning
hours and was performing the night duty at IBM Hospital. He further
informed that the property belonged to Chander Parkash and they
were working on sharing basis and Chander Parkash was working as a
compounder. During search, (18) types of medicines along with BP
apparatus and seven injections (partially used) were found. So it came
to knowledge that unregistered & unqualified doctors were working
under the shadow of Manish Kharb, BAMS. Therefore, on the basis of
a letter written from Deputy Civil Surgeon to SHO, PS Quilla Panipat,
FIR No.85 dated 08/02/2018, under Section 18(c) Drugs and
Cosmetics Act, 1940 and Section 15(2), 15(3) of Indian Medical
Council Act, 1956 and Sections 420, 120B of Indian Penal Code was
registered at P.S. Quilla, Panipat against the petitioner and co-accused
Chander Parkash @ Chintu.
3. In pursuance of the aforementioned FIR, investigation was
conducted by the police and final report under Section 173(2) Cr.P.C.
was filed before learned JMIC Panipat and petitioner has been facing
trial. By way of present petition, petitioner has prayed for quashing of
FIR as well as the final report.
4. Learned counsel for the petitioner has made point wise
submission qua each allegation mentioned in the FIR. With respect to
offence U/s 18 (c) of Drugs & Cosmetics Act, (for short 'the Act'), ld
counsel submits that offence alleged to have been committed by the
petitioner is made punishable under Section 27 (b) (ii) of the Act, while
as per Section 36-AC ibid, the offence punishable under Section 27 (b)
(ii) of the Act has been specifically excluded from the category of
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cognizable offence. He further submits that as per the mandate of
Section 32 (1) of the Act, no FIR can be registered for an offence
committed under the Act and Ld. Court can take cognizance only on
the basis of a complaint filed by the authorized person specified under
Section 32 of the Act and police has got no power to register FIR and
to investigate the matter.
Learned counsel further submits that since the petitioner is
a Medical Practitioner duly registered by virtue of Annexure-P-7,
therefore, neither the offense U/s 15(2)(b) of Indian Medical Council
Act is made out against him, nor he can be charged under Section 18
(c) of the Act on account of non-possessing of the license as required
under the said provision. With respect to Section 420 IPC, ld. counsel
submits that there has to be fraudulent and intentional inducement of a
person by deceiving him, while in the present case, there is neither any
complainant on record; nor allegation that anyone was induced to part
with any property and therefore, he submits that invoking of Section
420 IPC is nothing, but an abuse of the process of law. In support of
his contentions, he places reliance upon:-
i. "Dr. Barinder Singh, President, Ludhiana Medical
Welfare Association v. State of Punjab", (P&H)(DB) :
Law Finder Doc Id # 201779 reported as 2009 (5) RCR
(Criminal) 565
ii. "Surendra vs State of Haryana" by Punjab and Haryana
High Court in case bearing No CRM-M-4627-2011 decided
on 26.04.2013
iii. "Arvinder Singh vs State of Punjab & others" by Punjab
and Haryana High Court in case bearing No CRM-M-
54032-2007 decided on 18.02.2009
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iv. "Pawan Panchal vs State of Haryana & another" by
Punjab and Haryana High Court in case bearing No CRM-
M-9001-2012 decided on 01.10.2013
v. "Rajendra vs State of Maharashtra & another" by
Bombay Bench at Aurangabad in case bearing No Criminal
Writ Petition-846-2016 decided on 10.10.2016
vi. "Phul Singh v. State of Haryana", by Punjab and
Haryana High Court : Law Finder Doc Id # 48391 reported
as 1986 (1) RCR (Criminal) 532
vii. "State of Haryana vs Phul Singh" (SC) : Law Finder Doc
Id # 193779 reported as 1999 (7) SCALE 53
5. On the other hand, learned counsel for the respondent -
State while opposing the prayer made on behalf of the petitioner,
submits that FIR was registered on the basis of a complaint received
from Deputy Civil Surgeon; petitioner was put to trial before the ld.
JMIC Panipat and during investigation, he never produced any
registration certificate as a medical practitioner and therefore, the
present deserves dismissal.
6. I have heard learned counsel for the parties and gone
through the paper-book of the case as well as the authorities cited at
the bar. I find substance in the arguments raised on behalf of the
petitioner. In the present case, there is no victim or complainant who
has come forward to submit that he has been deceived by the
petitioner. In Arvinder's case (supra), it was observed by this Court
that :-
"Careful perusal of the complaint sent by Drug
Inspector, which is reproduced hereinabove indicates
that no offence under Section 420 IPC is made out.
The necessary ingredients to attract punishment under
Section 420 IPC are that there has to be fraudulent
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and intentional inducement of a person by deceiving
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him. The person so deceived should be induced to
deliver any property to any person or to consent that
any person shall retain any property or that the person
so deceived should be intentionally induced to do or
omit to do anything which he would not continue or
omit if he were not so deceived."
In that circumstance, without there being any allegation to
this effect, it cannot be said that offence under Section 420 IPC is
prima facie made out.
7. With respect to offence U/s 18 (c) of the Act alleged to have
been committed by the petitioner, the same is punishable under
Section 27 (b) (ii) of the Act. It is admitted position of law that as per
Section 36-AC ibid, the offence punishable under Section 27 (b) (ii) of
the Act has been specifically excluded from the category of cognizable
offence. In this context, it is necessary to have a look at the definition
of Section 32 of this Act, which is reproduced hereunder:-
"32. Cognizance of offences--[(1) No prosecution
under this Chapter shall be instituted except by--
(a) an Inspector; or
(b) any gazetted officer of the Central Government
or a State Government authorised in writing in this
behalf by the Central Government or a State
Government or by a general or special order made in
this behalf by that Government; or
(c) the person aggrieved; or
(d) a recognised consumer association whether
such person is a member of that association or not.
(2) Save as otherwise provided in this Act, no court
inferior to that of a Court of Session shall try an offence
punishable under this Chapter.]
(3) Nothing contained in this Chapter shall be
deemed to prevent any person from being prosecuted
under any other law for any act or omission which
constitutes an offence against this Chapter."
8. From the perusal of above, it is apparent that proceedings
in present case could not be initiated on the basis of a report under
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Section 173(2) Cr.P.C., rather, could only be instituted on the basis of
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a complaint filed by the person specified in that Section. Reliance in
this regard can be placed upon Rajendra's case (supra ) wherein,
Division Bench of Bombay High Court observed that:-
"...From the above provisions, it is clear that the
cognizance of the offences punishable under Chapter
IV of the Act, which includes the offence under Section
27 (b) (ii), cannot be taken on the basis of the
chargesheet filed by the police under section 173 of
the Code of Criminal Procedure.
13. Indisputably, the cognizance of the offence
punishable under section 27 (b) (ii) of the Act alleged
Judicial Magistrate and others 1998 (1) Mh.L.J. 599
(S.C.), wherein also it has been held that though the
Magistrate can discharge the accused at any stage of
the trial if he considers the charge to be groundless,
but that does not mean that the accused cannot
approach the High Court under section 482 of the
Code or Article 227 of the Constitution to have the
proceedings quashed against him when the complaint
does not make out any case against him and still he
must undergo the agony of a criminal trial."
9. Similar position of law has been reiterated in other
judgments as well, cited by the learned counsel for the petitioner. Thus,
the FIR in question so far as it relates to offence u/s 18 (c) of the Act, is
liable to be quashed as the same could not have been registered by
the police with regard to commission of offence punishable under the
Act.
10. Vide Annexure P-7, petitioner has also brought on record
his enrollment certificate dated 14.05.2010 bearing registration number
23135 showing that he has been registered as medical practitioner
having a Ayurvedacharya Degree (Bachelor of Ayurvedic Medicine and
Surgery) since 14.05.2010. Though, the respondent has submitted that
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this certificate was never shown to them during investigation, however,
neither any question has been raised regarding its veracity while filing
reply by the State; nor even during the arguments. In Phul Singh's
case (supra), it was held by this Court that a person holding certificate
of registration from State Ayurvedic and Unani Medical Council, Bihar
comes within the definition of Registered Medical Practitioner and as
such entitled him to keep medicines and this decision was upheld by
Hon'ble Apex Court as well. In this view, it cannot also be held that no
offence u/s 15(2)(b) of Indian Medical Council Act is made out against
the petitioner.
11. In view of the discussion held above, the present petition is
allowed. FIR No.85 dated 08.02.2018 registered at Police Station
Quilla Panipat, District Panipat as well as the final report (P-2) is
hereby quashed, qua the petitioner.
12. Pending miscellaneous application(s), if any, shall also
stand disposed of.
July 03, 2023 (HARKESH MANUJA)
sanjay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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