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2008 DIGILAW 1038 (PAT)

Suresh Prasad v. State Of Bihar

2008-07-28

SAMARENDRA PRATAP SINGH

body2008
Judgment 1. Heard learned counsel for the petitioners and the State. 2. In the instant writ petition the petitioners pray for unlocking the factory premises of petitioner no. 1 and for releasing the seized articles (cosmetics) made in connection with Chowk P.S. Case No. 150 of 2005 under Sections 419, 420, 467, 468, 471, 472, 483 and 120B of the Indian Penal Code and Section 63 of the Copyright Act. 3. Learned counsel for the petitioners submits that petitioner no. 1 is a licensee having valid licence in the name of the firm M/s Suresh Cosmetics under the Drugs and Cosmetics Rules, 1945, as contained in Annexure-1. Petitioner No. 2 is son of Petitioner no. 1 and petitioner no. 3 is closely related to petitioner no. 1. He submits that the licence of petitioner no. 1 has been renewed up to 31.12.2007. He submits that the Inspector-cum-Officer Incharge, Chowk P.S., Patna City raided his premises and seized various items used in manufacture of cosmetics as would appear from the seizure list annexed with the F.I.R. It is alleged that the petitioners were illegally manufacturing cosmetics of different brands of companies. 4. The petitioners have challenged the institution of the case by the informant who was Inspector-cum-Officer Incharge, Chowk P.S., Patna City on the ground that under Section 22 read with Section 32 of the Drugs and Cosmetics Act, 1940 it is the only Drug Inspector who has been authorized to make search and seizure and to institute a case. It has also been submitted that police has no jurisdiction to investigate into the offence committed under the Drugs and Cosmetics Act. It has been submitted that in view of Section 32 of the Act, police is not empowered to register any first information report and investigate the case as well as to submit charge-sheet under Section 173 of the Code of Criminal Procedure. 5. Learned counsel for the State submits that the Police Officer is duly authorized to institute a case in respect of penal offence and in respect of offence committed under the Copyright Act. 6. 5. Learned counsel for the State submits that the Police Officer is duly authorized to institute a case in respect of penal offence and in respect of offence committed under the Copyright Act. 6. It is well settled by now that the specific provision provided under the special Act would override the general provisions provided in the Cr.P.C. The Apex Court in the case of Hindustan Lever Ltd. vs. The State of Bihar & Ors., 1997(1) B.L.J. 889 has observed that the authority authorized under special Act can file a complaint and the police has no jurisdiction to register a first information report and investigate into offence, under the Act. 7. A Bench of this court, in similar nature of case, in the case of Uma Kant Prasad vs. State of Bihar & Ors., by order dated 23.3.2006 passed in Cr.W.J.C. No. 42 of 2006 has quashed the criminal prosecution launched by the police as under the Drugs and Cosmetics Act he was not authorized to do so. In the instant case the subject matter of case falls within purview of Drugs and Cosmetics Act as would appear from perusal of F.I.R. itself though it has been instituted under the provisions of the Indian Penal Code and Copyright Act. 7. As such, the present prosecutions as initiated on the basis of the F.I.R. aforesaid and all subsequent acts thereunder are without jurisdiction and are quashed. 8. In the result this application is allowed. The respondent no. 2 is directed to unlock the factories of petitioner no. 1 and release the seized articles (cosmetics) forthwith.