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2009 DIGILAW 977 (JHR)

Pankaj Kumar v. State of Jharkhand

2009-07-15

PRASHANT KUMAR

body2009
JUDGMENT : In this application the petitioner has prayed for quashing the order dated 19.12.2003 passed by Judicial Magistrate, 1st Class, Bokaro whereby and whereunder he came to the conclusion that prima facie an offence under section 120B, 420, 468, 469 of the IPC and also under section 27 of the Drugs and Cosmetics Act, 1940 is made out. Accordingly, he ordered for issuance of process against the accused persons including this petitioner. It is alleged that the complainant is a retail shop dealer and he used to sell drugs. It is alleged that he also sells, Sacmin Plus after purchasing it from the wholesale shop of petitioner. It is further alleged that the aforesaid Sacmin Plus was manufactured by Unichem Laboratories Ltd. and at the relevant time accused no. 1,2 and 3 are the officers who are in –charge of the business of the said company. It is further alleged that accused no. 4 is the agent and distributor of Unichem Laboratories Ltd. It is further alleged that the complainant had purchased the aforesaid medicine on 5.6.2003 and 16.6.2003 from the shop of this petitioner and later on sold it to witness no. 1 vide issuance of cash-memo no. 160 dated 18.6.2003. It is then alleged that in the evening of 18.6.2003 the witness no. 1 came and disclosed to the complainant that in the pack of the aforesaid medicine date of ‘manufacturing’ and date of ‘best before use’ has been blackened ,due to that manufacturing date and expiry date is not visible. Thereafter complainant had opened the cartons and found that in all the packets there was such blackening. It is stated that when the complainant removed the blackened spot, he found that the product has been expired in the month of January, 2003. It is further stated that the matter was disclosed to this petitioner, who informed that he has purchased it from accused no. 4. Thereafter legal notice served upon the accused persons, but they had not send any reply. Accordingly the complaint petition was filed alleging that the accused persons had committed an offence under section 418, 463, 468, 469 of the IPC and also under section 27 read with section 17(C) of the Drugs and Cosmetics Act. 4. Thereafter legal notice served upon the accused persons, but they had not send any reply. Accordingly the complaint petition was filed alleging that the accused persons had committed an offence under section 418, 463, 468, 469 of the IPC and also under section 27 read with section 17(C) of the Drugs and Cosmetics Act. It appears that after inquiry, learned judicial magistrate came to the conclusion that prima-facie offences under section 120(B), 420, 468, 469 of the IPC and 27 of the Drugs and Cosmetics Act is made out against the accused persons. Accordingly the court ordered for issuance of summons. It is submitted that when there is special provision for any offence, the general provision will not apply. Therefore the cognizance taken by the learned judicial magistrate under section 120B, 420, 468 and 469 of the IPC is against the law. It is further submitted that the Sacmin Plus is not a drug as defined under the Drugs and Cosmetics Act. In support of that learned counsel for the petitioner relied upon annexure-2 series and also on the letter of manufacturer( annexure-3/1). Having heard the submission, I have gone through the record of the case. From the perusal of complaint petition, it is clear that the packet and Carton of aforesaid Sacmin Plus had been blackened with a view to suppress the fact that the product had already expired in the month of January, 2003. Thus, prima facie it appears that the said blackening on the Packet was made with an intention to cheat the purchaser. In my view, said blackening on the packet with a view to conceal the expiry date also amounts to forgery. Therefore, in my view, prima facie offence under section 120B, 420, 468 and 469 of the IPC is made out. Under the Drugs and Cosmetics Act, there is no specific punishment for cheating and forgery. Under the said circumstance, I find no substance in the first submission of learned counsel for the petitioner, hence the same is rejected. So far the second contention is concerned, while exercising the power U/s. 482 of Cr.P.C. it is not open for this court to make an inquiry for coming to a conclusion as to whether case is made out or not. So far the second contention is concerned, while exercising the power U/s. 482 of Cr.P.C. it is not open for this court to make an inquiry for coming to a conclusion as to whether case is made out or not. The facts brought on record by the petitioner through Annexure-2 and 3 series are not the part of inquiry under section 202 of the Cr.P.C., therefore, the same cannot be looked by this Court while judging the correctness of impugned order. From perusal of complaint petition, prima facie it appears that accused person including the petitioner had contravened the provision of section 17(C) of the Drugs and Cosmetics Act, thus, the court below has rightly come to the conclusion that an offence under section 27 of the Drugs and Cosmetics Act is made out. In view of the discussion made above, I find no merit in this application, the same is accordingly dismissed.