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Rajasthan High Court · body

2009 DIGILAW 2147 (RAJ)

Bharat H. Shah v. State of Rajasthan

2009-10-13

R.S.CHAUHAN

body2009
JUDGMENT 1. - The petitioner has prayed for quashing the FIR, FIRNo.356/2009, registered at Police Station Ashok Nagar Jaipur for offences under Sections 420, 120-B IPC and 9B(E), 10 (BB/13A), 17B(E), 18A(1)/27, 18B and 22(3) Drugs and Cosmetic Act, 1940. 2. Mr. Anil Upman, the learned counsel for the petitioner, has contended that there is hardly any allegation against the petitioner in the FIR filed by the Drug Inspector. Secondly, in the raid, carried out at the premises of M/s Shree Vinayak Trading Company, a proprietorship firm, managed by the petitioner, no incriminating evidence, whatsoever, was found. Thus, according to the learned counsel, no prima facie case is made out for offences under Sections 420, 120-B IPC and 9B(E), 10(BB/13A), 17B(E), 18A(1)/27, 18B and 22(3) Drugs and Cosmetic Act, 1940. Thirdly, despite the non-existence of a prima facie case, the Investigating Agency is bent upon arresting the petitioner. Their arbitrary action is violative of concept of personal liberty contained in Article 21 of the Constitution of India. Lastly, the present case is covered by the decision of the Apex Court in the case of State of Haryana & Ors. v. Bhajanlal & Ors. [1992 Supp(1)SCC 335] , wherein the Apex Court had laid down seven circumstances in which the courts would be justified in quashing and setting aside the FIR. According to the learned counsel, in case the FIR and other material, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by the police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code, then the Court would be justified in quashing and setting aside the FIR. Moreover, where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, then in that circumstance, the court would be justified in interfering with the FIR. According to the learned counsel, the present case falls within these two circumstances. Hence, the Court should rush to the rescue of the petitioner. 3. Heard the learned counsel for the petitioner and perused the FIR as well as the documents submitted by the petitioner. 4. According to the learned counsel, the present case falls within these two circumstances. Hence, the Court should rush to the rescue of the petitioner. 3. Heard the learned counsel for the petitioner and perused the FIR as well as the documents submitted by the petitioner. 4. In catena of cases, the Hon'ble Supreme Court has consistently held that the arena of investigation is the realm of the Investigating Agency. Although the inherent power of the High Court are vast in nature under Section 482 Cr.P.C., but the same should be applied sparingly in quashing a FIR. For, it is not for the court to throttle an investigation at the initial stage. In the case of Bhajanlal & Ors. (supra), the Hon'ble Supreme Court had laid down seven circumstances, in which the High Court would be justified in interfering with the FIR or with the criminal proceeding, but besides these seven circumstances, the court should be reluctant to interfere. 5. A bare perusal of the FIR reveals that according to the complainant, the Drug Inspector, complaints had been received from M/s V.H.B. Life Science Ltd. Mumbai that some of the medicines manufactured by it were being produced spuriously and were being sold in the market by M/s Madiline Pharma. Therefore, a raid was conducted on the shop of M/s Madiline Pharma. At the time of raid, Mr. Manoj Kumar Agarwal, who is the partner and Pharmacist for M/s Madiline Pharma, was present. In his statement, he admits that the samples of medicine called "lviglob Ex, 5gm/100 ML" B.No. 200806010 were bought from M/s Shree Vinayak Trading Company, i.e. from the proprietary firm of the petitioner. Later on in the FIR, it is revealed that some of the drugs so discovered at M/s Madiline Pharma were spurious in nature. It was also discovered that payments had been made between M/s Madiline Pharma and M/s Shree Vinayak Trading Company. Thus, a bare perusal of the FIR reveals that a prima facie case does exist against the petitioner for offences under Sections 420, 120-B IPC and 9B(E), 10(BB/13A), 17B(E), 18A(1)/27, 18B and 22(3) Drugs and Cosmetic Act, 1940. Therefore, the contention raised by the learned counsel that the contents of the FIR do not disclose the commission of a cognizable offence is untenable. 6. Therefore, the contention raised by the learned counsel that the contents of the FIR do not disclose the commission of a cognizable offence is untenable. 6. The learned counsel has not been able to make out any case of a malafide intention on the part of the Investigating Agency or of a case of malicious prosecution on their behalf for wreaking vengeance private or personal grudge against the petitioner. In fact, he has not levelled any allegation of malafide or of personal grudge against any officer of the Investigating Agency. Therefore, clearly, this case does not fall under the circumstances enumerated in the Bhajanlal & Ors. (supra). 7. The learned counsel has of course relied upon the report prepared by the Investigating Agency, when the petitioner's premises were raid. He has also tried to rely upon other documents in order to create a plausible defence in favour of the petitioner. On the basis of these documents, he has argued about the innocence of the petitioner. However, it is a settled principle of law that at the initial stage, the Court can neither look into, nor give credence to the documents with which defence can be created. The appreciation of a defence is the function of the trial court and not the function of this Court under its jurisdiction of inherent power. Thus, these documents can neither be looked into, nor appreciated by this Court at such a preliminary stage. 8. The learned counsel has strenuously argued about the violation of personal liberty as enshrined under Article 21 of the Constitution of India. However, the investigation is being done according to the procedure established by law. Therefore, the State does have the power to interfere with the personal liberty of a person provided the Investigating Agency follows and adheres to the procedure established by law. It is not the case of the petitioner that the procedure has been violated and his personal liberty is being threatened by the State after violating the procedure established by law. As long as the procedure is being followed, the petitioner cannot claim violation of Article 21 of the Constitution of India. The hands of the Investigating Agency cannot be tide as long as the Investigating Agencies are adhering to the procedure established by law. As long as the procedure is being followed, the petitioner cannot claim violation of Article 21 of the Constitution of India. The hands of the Investigating Agency cannot be tide as long as the Investigating Agencies are adhering to the procedure established by law. It is only when the Investigating Agency disregards the procedure, violates the procedure, or deviates from the procedure, then a court would be justified in interfering with the investigation. But in the present case, there is not an iota of evidence to show that the Investigating Agency is deviating from the procedure established by law. Therefore, the shield of Article 21 of the Constitution of India cannot protect the petitioner from a legal and valid investigation. 9. For the reasons stated above, the petition is devoid of any merit. It is, hereby, dismissed.Petition dismissed. *******