Hindustan Lever Ltd. v. State Of Bihar — 1996 DIGILAW 616 (PAT)

Judgment P. K. Sarin, J. 1. This Criminal writ application under Articles 226 and 227 of the Constitution of India has been filed by the petitioner for quashing of the investigation by the police arising out of Malsalami P. S. Case No.3 of 1996 under Sec.22 (3) and 27 (b) of the drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act ). 2. It appears that the First information report has been filed by the drug inspector (Opposite party No.2)against the petitioner and two others alleging that a group of Drug Inspectors inspected the premises of M/s Sultania and Sultania of Patna City who are Candf agent of the present petitioner. The inspection was done on 6-9- 95 and it was found that 1,600 cartons, each carton containing 24 pieces, each piece containing 200 MI. floor cleaner, manufacfired by M/s San Soaps and Detergent, bangalore and marketed by the present petitioner were found with packing date of December, 1994 having no batch number and expiry date. It is alleged in the First Information Report that M/s san Soaps and Detergent have manufactured the said floor cleaner without licence. The Drug inspector issued direction to the concerned firm not to dispose of the said articles. It is further alleged that the photostat copy of the manufacturing licence made available by the present petitioner revealed that the licence was granted to M/s San soaps and Detergent on 18-5-95. The said floor cleaner is marketed by the present petitioner through its authorised agent m/s Sultania and Sultania, who failed to make available the documents regarding stock transfer note to the Drug inspector and they did not produce the same as such the M/s Sultania and Sultania have contravened the provisions of section 22 (1) (ccc) which are punishable under section 22 (3) of the Act. As regards the present petitioner, the only allegation, was that the present petitioner is marketing the said floor cleaner through its agent M/s Sultania and Sultania without licence. As regards the present petitioner, the only allegation, was that the present petitioner is marketing the said floor cleaner through its agent M/s Sultania and Sultania without licence. Sec.22 (c) of the Act shows that a Drug inspector at all reasonable times, with such assistance, if any, as he considers necessary:- " (1) search any person, who, he has reason to believe, has secreted about his person, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, or (ii) enter and search any place in which he has reason to believe that an offence under this Chapter has been, or is being, committed, (Hi) stop and search any vehicle, vessel or other conveyance which he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days, or, unless the alleged offence is such that the defect may be removed by the possessor of the drug of cosmetic and any substance or article by means of which the offence has been, or is being committed or which may be employed for the commission of such offence. " Thus section 22 (i) (c) shows that the Drug Inspector may search any person or enter and search any place or stop and search any vehicle when he has reason to believe that any drug or cosmetic has been, or is being used for committing any offence under Chapter iv of the Act. It is further provided that the Drug Inspector may order in writing the person in possession of the drug or cosmetic in respect of which the offence has been committed not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days. It is further provided that the Drug Inspector may order in writing the person in possession of the drug or cosmetic in respect of which the offence has been committed not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days. 3 Although in the First Information report offence is alleged to be under section 22 (1) (c) (II) of the Act but from the facts alleged in the inspection it appears to be a case of contravention of provisions of section 22 (1) (cca) which empowers the Drug inspector to require any person to produce any record, register, or other documents relating to the manufacture for sale or for distribution, stocking, exhibition for sale, offer for sale, or distribution of any drug or cosmetic in respect of which he has reason to believe that an offence under this chapter has been, or is being committed. 4. The grievance of the petitioner is that the floor cleaner is exempted from the provisions of Chapter IV regarding sale by virtue of Rule 123 read with item 12 of Schedule K of the Drug and Cosmetic Rules, 1945. The other contention of the learned Counsel is that under section 32 of the Act prosecution may be instituted by Drug inspector which contemplates filing of a complaint by the Inspector and the police has no jurisdiction to investigate into any offence and submit charge-sheet and as such the investigation by police in respect of an offence under section 22 or 27 (b) of the Act is without jurisdiction and liable to be quashed. 5. A counter affidavit on behalf of drug Inspector (opposite party No.2)has been filed stating the same facts as have been stated in the First In formation report. It is further stated that the opposite party No.2 requested the proprietor of M/s Sultania and Sultania and the petitioner and the manufacturer to co-operate for making inspection in the right direction so that further required legal steps might be taken. A photo-stat copy or request letter sent by opposite party No.2 has been annexed as annexure A to the counter-affidavit. It is further stated that despite repeated requests the petitioner and other have not cooperated excepting that the petitioner had sent a letter stating that the manufacturer had obtained a licence on 18-5-95. A photo-stat copy or request letter sent by opposite party No.2 has been annexed as annexure A to the counter-affidavit. It is further stated that despite repeated requests the petitioner and other have not cooperated excepting that the petitioner had sent a letter stating that the manufacturer had obtained a licence on 18-5-95. It is also stated that thereafter the opposite party No.2 requested to explain the aforesaid commission and omission for the year 1994 regarding manufacturing without a valid licence and marketing the product of such manufacturing and that the petitioner and other had not co-operated in supplying the concerned documents. It has been stated in the counter-affidavit that m/s Sultania and Sultania had moved this court for quashing the investigation but this Court dismissed its writ being cr. W. J. C. No.34/96. Copy of the order passed by this Court is at annexure C to the counter-affidavit. It has been further started that the exemption under section 123 of item 12 of Schedule K of the writ is subject to the condition of following the provisions of sub-rule (17) of Rule 65 of the Drugs and cosmetic Rules 1945 and the petitioner had violated such rule in conivance with the manufacturer. 6. As regards the first contention raised on behalf of the petitioner that the floor cleaner in question has been exempted from the provisions of chapter IV by virtue of Rule 123 read with item 12 of Schedule K, it has force. RUE 123 lays down that the drugs specified in schedule K shall be exempted from the provisions of Chapter IV of the Act and the Rules made thereunder to the extent and subject to the conditions specified in that Schedule. Item No.12 of schedule K relates to substances intended to be used for destruction of vermin or insects which cause disease in human beings, or animals, viz insecticides and disinfectants. The extent and condition of exemption allowed in respect of these items is from obtaining the sale licence but it was made subject to condition that provision of sub-rule (17) of Rule 65 of the Drugs and cosmetic Rules 1945 are complied with by the persons stocking or selling such sub-stances. The extent and condition of exemption allowed in respect of these items is from obtaining the sale licence but it was made subject to condition that provision of sub-rule (17) of Rule 65 of the Drugs and cosmetic Rules 1945 are complied with by the persons stocking or selling such sub-stances. Sub-rule (17) of Rule 65 provides that no drug or cosmetic shall be sold or stocked by the licensee after the date of expiration of potency recorded on its container, label or wrapper of in violation of any statement or direction recorded on such container, label or wrapper provided that any such drug in respect of which the licensee has taken steps with the manufacturer or his representative for the withdrawal, reimbursement or disposal of the same may be stocked after the date of expiration or potency. Pending such withdrawal, reimbursement or disposal, as the case may be, subject to the condition that the same shall be stored separately from the trade stocks (and all such drugs shall be kept in packages or cartons, the top of which shall display prominently, the words "not for sale. ") The allegations in the report filed by the Drug Inspector (opposite party No.2) is not regarding any contravention of condition of sub-rule (17) of Rule 65. What has been alleged in the first Information Report is that the concerned floor cleaner was manufactured in December, 1994 without having a licence to manufacture such items and that M/s Sultania and sultania failed to produce documents and that the present petitioner did not copoperate in making available the documents in respect of the said stock of floor cleaner. In the report there is no allegation about the breach of the conditions imposed by sub-rule (17) of Rule 65. The allegation in that behalf has come in the counter affidavit filed by opposite party No.2. For the purposes of quashing investigation the Court has only to look to the First Information report filed in the case to find out whether the same discloses any cognizable offence against the accused. Therefore, the statements made in the counter-affidavit regarding violation of sub-rule (17) of Rule 65 is of no avail to opposite party No.2 By virtue of provisions of Rule 123 read with item no.12 of Schedule K there was no requirement of obtaining sale licence in respect of floor cleaner. Therefore, the statements made in the counter-affidavit regarding violation of sub-rule (17) of Rule 65 is of no avail to opposite party No.2 By virtue of provisions of Rule 123 read with item no.12 of Schedule K there was no requirement of obtaining sale licence in respect of floor cleaner. Therefore, it was clear from the provisions of chapter IV of the Act that Sec.22 of the act empowers the Drug Inspector to make such search and seizure and also direct any person to produce document etc. in cases he has reason to believe that any offence under Chapter IV has been committed or is being committed. It has to be shown first what offence under Chapter IV has been committed and if no offence is found to be committed under Chapter IV provisions of section 22 regarding search and seizure would not come into play. . 7. The learned Counsel for the opposite party No.2 has contended that sub-section (3) of Sec.22 provides that if any person wilfully obstructs the inspector in the exercise of the powers conferred upon him by or under this chapter or refuses to produce any record, register, or other document when so required under clause (cca) of sub-section (i) he shall be punishable with imprisonment which may be extended to 3 years or with fine or with both. According to the contention of the learned Counsel for opposite party no.2 the petitioner is liable for the punishment provided under sub-section (3) of section 22 of the Act as it has refused to produce documents despite being required under clause (cca) of sub-section (1) of Sec.22. The allegations in the First Information Report regarding refusal to produce the documents is against M/s Sultania and Sultania the C and F agent of the present petitioner and not against the present petitioner. Therefore, in the First information Report there is no allegation of making out an offence punishable u/s.22 (3) of the Act agai-nst the present petitioner. The content-ion of the learned Counsel for the opp- osite party no.2 to the contrary on this score does not appear to be sustainable. 8. The second contention raised on behalf of the petitioner is that the police has no jurisdiction to investigate into the offences committed under the act. In view of Sec.32 of the Act it appears to have force. 8. The second contention raised on behalf of the petitioner is that the police has no jurisdiction to investigate into the offences committed under the act. In view of Sec.32 of the Act it appears to have force. Sec.32 of the act provides that no prosecution shall be instituted for any offence under the act except by a Drug Inspector or by the person aggrieved or by a recognized consumer association whether such person is a member of that association or not. It is evident that prosecution can be instituted by Drug inspector or by any person aggrieved by filing complaint before a competent court. The police is not empowered to register any first Information Report and investigate the case so as to submit charge-sheet under section 173 of the Code of criminal Procedure. The learned counsel for the opposite party No.2 has contended that sub-section (3) of section 22 provides for punishment for three years as such the police shall be competent to investigate the case on the report of the Drug inspector. It is difficult to accept this contention in view of the provisions contained in section 32 of the Act. In my opinion, the prosecution can be instituted by filing complaint by the Drug Inspector and the police has no jurisdiction to register a First Information Report and investigate into the offence under the act. The investigation by police in this case, therefore, is without jurisdiction and is liable to be quashed. 9. In view of the above discussions the First Information Report and the investigation by the police on the basis of f. I. R. impugned in the present writ application in so far as it relates to the present petitioner are quashed. Petition Allowed.