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2004 DIGILAW 935 (PAT)

Basudeo Gupta v. State Of Bihar

2004-09-10

NAVIN SINHA

body2004
Judgment 1. Heard learned Counsel for the petitioner and the learned Counsel for the State. 2. The petitioner challenges the order of cognizance dated 16.9.2002 and the entire proceedings against him in Sheikhpura PS Case No. 143 of 2002 corresponding to GR Case No. 317 of 2002 pending before the SDJM, Sheikhpura. The prosecution having been initiated under Sections 18(c), 27 and 27A of the Drugs and Cosmetic Act, 1940 read with Section 120B of the Indian Penal Code. 3. An FIR came to be lodged on 24.2.2002 by the Deputy Superintendent Sub-Divisional Hospital, Sheikhpura, Munger, alleging that several medicines shops were running in Sheikhpura district town area without statutory licences. A list of such shops was enclosed on the basis of information available with the Chief Medical Officer with a request to initiate legal proceedings by registering an FIR. The FIR was stated to be lodged in pursuance of the confidential letter dated 10.4.2002 issued by the officer of the Deputy Collector, Incharge Collectorate, Sheikhpura addressed to the Civil Surgeon-cum-Chief Medical Officer which was enclosed by the Chief Medical Officer to the effect that it appeared that the shops were running illegally in connivance with the Drug Inspector. 4. Cognizance having been taken the petitioner, the concerned Drug Inspector, has approached this Court for quashing the entire proceedings as also the order of cognizance. The very short submission on behalf of the petitioner is that the very institution of the case was contrary to Section 32 of the Drugs and Cosmetic Act. If the institution of the case was itself barred by law the order of cognizance ipso facto becomes bad. It would be necessary to quote Section 32 in extenso. "32. Cognizance of offences. (1) No prosecution under this chapter shall be instituted except by an Inspector (or by the person aggrieved or by a recognised consumer association whether such person is a member of that association or not). (2) No Court inferior to that of (a Metropolitan Magistrate or of a Judicial Magistrate of the first class) 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." 5. (2) No Court inferior to that of (a Metropolitan Magistrate or of a Judicial Magistrate of the first class) 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." 5. Learned Counsel submitted that the use of the words "no prosecution under this Chapter shall be instituted except by an Inspector" makes its manifest that the case could be instituted only on a complaint by an Inspector before a competent court of law or by such other persons as authorised thereunder. The submission on this basis was that the very institution of the present FIR was contrary to the clear interdict contained in the statute prohibiting institution of an FIR. The FIR having been registered contrary to law was liable to be quashed leading to the automatic disappearance of the order of cognizance. It was lastly submitted that in any event the prosecution was not initiated by the Inspector which also made the prosecution bad in law. Learned Counsel in support of his submission relied upon a judgment of this Court reported in 1997(1) BLJ 899 . 6. It is apparent from the wordings of Section 32 that it is only an Inspector or other competent person as mentioned in the statute who are authorised to institute the proceeding. In view of the law laid down by this Court in 1997(1) BLJ 899 , this Court has no hesitation in coming to the conclusion that the institution of an FIR is not permissible under Section 32 of the Drugs and Cosmetics Act. The very institution of the FIR and cognizance upon the same is therefore bad in law and has to be set aside. 7. This Court should not be taken to suggest that no FIR could have been instituted. The institution of an FIR and investigation thereunder is a thing with which this Court would be utmost reluctant to interfere. This FIR and the resultant investigation thereunder could always be a subject of complaint. 8. This Court therefore has no option but to hold that the institution of an FIR, and that too by an Inspector, was clearly contrary to Section 32 of the Drugs and Cosmetics Act. This FIR and the resultant investigation thereunder could always be a subject of complaint. 8. This Court therefore has no option but to hold that the institution of an FIR, and that too by an Inspector, was clearly contrary to Section 32 of the Drugs and Cosmetics Act. The entire proceedings in Sheikhpura PS Case No. 143/2002 arising out of GR Case No. 317/2002 including the order of cognizance dated 16.9.2002 therefore are bad insofar as the petitioner alone be concerned. This would however would not prevent the authorities in initiating fresh proceedings in accordance with law since the present application has been allowed on mere technicality. 9. The application stands allowed.