Uttarakhand High Court
Mayank Kumar And Another ... vs State Of Uttarakhand And Others on 6 April, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 1409 of 2021
Mayank Kumar and another ........... Petitioners
Vs.
State of Uttarakhand and others ........ Respondents
Present : Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Kaushal
Pandey, Advocate for the petitioners.
Mr. Lalit Miglani, A.G.A. for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this petition is made to the
order dated 04.09.2021, passed in Sessions Trial No.168
of 2020, State vs. Dinesh and others, by the court of 2nd
Additional Sessions Judge, Roorkee, District Haridwar. By
the impugned order, an application filed under Section
451 of the Code of Criminal Procedure, 1971 (for short,
"the Code"), filed by the petitioners for unlocking or
removal of seal of the premises of firm/company Kancare
Pharmaceuticals Private Limited, located at Khasra
No.396, Nanheda, Anantpur, Bhagwanpur, District
Haridwar has been rejected.
2. Heard learned counsel for the parties and
perused the record.
3. Facts necessary to appreciate the controversy
briefly stated are as follows. On 04.12.2021, upon certain
information having been received, the respondent no.3,
the Drug Inspector along with the police personnel raided
certain premises. According to the case, certain spurious
medicines and illegal manufacturing without any license
was detected. In this process, a premises was sealed.
Based on this action, an FIR No.665 of 2020 under
Sections 419, 420, 120-B, 307 IPC and Sections 17, 17(a),
18A, 27 of the Drugs and Cosmetics Act, 1940 (for short,
"the Act") was lodged at Police Station Kotwali Roorkee,
District Haridwar.
4. It is submitted that now, charge-sheet has been
filed in the matter. The petitioners in his capacity as one
of the partners of the M/S Kancare Pharmaceutical
Private Limited moved an application under Section 451
of the Code for unlocking and de-sealing of the premises.
It has been rejected.
5. Learned Senior Counsel appearing for the
petitioners would submit that under Section 451 of the
Code, immovable property cannot be taken into
possession by the police; there is no provision, which
authorizes the authority to act in a manner, in which they
acted in the instant case.
6. On behalf of the State, categorically on multiple
occasions, it was asked, as to what under what provision
of law the action was taken? In fact, on 05.03.2022, this
Court formulated two points as follows with the request to
the State counsel to file a short counter affidavit:-
(i) Under what provision of law, the premises
was sealed or locked? and;
(ii) Which medicines, drugs etc. were found
from the premises in question and
whether any reports with regard to their
genuineness or spurious have been
obtained?
7. The State did not file response to it. On one
occasion, learned State counsel informed the Court that
the Investigating Officer had instructed that the premises
was sealed under the instructions of Drug Inspector but,
according to the learned State counsel the Drug Inspector
informed that the premises was so sealed under the
instructions of the Joint Magistrate. This has been noted
in Court's order dated 30.03.2022. The Joint Magistrate
also joined the proceedings of this Court on 05.04.2022.
She would submit that due to extraordinary Covid-19
pandemic situation such order was passed.
8. Learned State counsel has argued that, in fact,
drug was being manufactured with the brand name,
which was not registered in the State, it was so
manufactured without any authority or license. Therefore,
according to him, the premises may be unsealed but, the
machinery, which were used for manufacturing the
medicines are required for the purposes of trial.
9. When this argument was being advanced,
learned Senior Counsel for the petitioners would submit
that at the most, the machine, which was manufacturing
tablets may be taken into custody by the police subject to
its release by the Court but, entire premises and all the
machines cannot be taken into custody.
10. Under further instructions, learned State
counsel would submit that the machines connected with
the manufacturing of tablets as well as packaging pertain
to the case. Except it, the premises may be unsealed,
unlocked and given into the possession of the petitioners.
11. Learned Senior Counsel for the petitioners
would submit that he has no objection if only machines
relating to manufacture of tablets and packaging are
taken into custody by the police subject to the liberty to
the petitioners to approach the Court for its release under
the appropriate provisions of law.
12. In fact, immovable property cannot be taken
into custody by the police under Section 102 of the Code
as held by the Hon'ble Supreme Court in the case of
Nevada Properties Private Limited through its Directors
vs. State of Maharashtra and another, (2019)20 SCC 119.
13. In the case of Nevada (supra), while answering
the reference, the Hon'ble Supreme Court observed that,
"any property" in Section 102 of the Code will only
cover movable property and not immovable property.
14. Learned State counsel in this Court has stated
that the medicines are tablets only therefore, the petition
may be allowed with certain observation for de-sealing
and unlocking the premises with liberty to the police to
take into custody the machines manufacturing tablets
and packaging.
15. The petition is allowed. The premises-in-
question shall be de-sealed and unlocked but, the police
may take into custody the tablet manufacturing machine
and packaging machine. This action should be completed
by the police within a period of three weeks from today.
16. If police opts to take into custody the
machines, as indicated hereinabove, the petitioners shall
be at liberty to move an application for its release. If any
such application is presented, it shall be disposed of, in
accordance with law.
(Ravindra Maithani, J.)
06.04.2022
Sanjay
