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2010 DIGILAW 2925 (ALL)

MANOJ PRASAD SINGH v. STATE OF U. P.

2010-09-22

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard Mr. Ravindra Nath Rai, for the revisionist and the learned AGA for the respondent No. 1 and perused the record. 2. The respondents have not filed any objection or counter affidavit despite adequate opportunity. 3. With the consent of the learned counsel for the revisionist and the learned AGA, the revision is being finally disposed of. 4. This is a revision against the order dated 16.6.2010 passed by the Vth Additional Chief Judicial Magistrate, Varanasi in the case crime No. 189 of 2010, under Sections 18/27 of Drugs and Cosmetics Act,1940, Rule 122-O of the Rules made under the said Act and Sections 269, 420, 467, 468 and 120-B IPC, police station Lanka, district Varanasi, whereby the learned Additional Chief Judicial Magistrate refused to release the Jaimeet Charitable Blood Bank sealed by the police. It appears that M/s. Jaimet Charitable Blood Bank, Laxmi Bhawan, Suswahi, police station Lanka, district Varanasi is run by M/s. Jaimeet Swasthya Sewa Sansthan, a society registered under the Societies Registration Act. The said society has been granted a licence under rule 122-B of the Drugs and Cosmetics Rules, 1945 to operate a Blood Bank for collection, storage and processing of whole human blood and its components for sale or distribution. The validity period of the licence is from 26.5.2009 to 25.5.2014. Mr. Ravindra Nath Rai, the learned counsel for the revisionist submitted that the aforesaid licence is still operative. 5. It appears that on 8.4.2010, at about 8.00 p.m., accused Alok Kumar, Vikas Kumar and Rajiv Kumar were found in possession of 13 units of human blood, who had been going to supply the blood. It is also alleged that co-accused Chhedi Lal, who is a professional blood donor, was found donating blood in the aforesaid Blood Bank and informed the raiding party that he had already donated blood about five times. It is alleged that the aforesaid Blood Bank was involved in collecting human blood from professional donors and fake donors and was also involved in making contravention of various terms and conditions of the licence. It is also alleged that some of the blood seized as aforesaid were found of the inferior quality with less Haemoglobin etc. 6. It further appears that on 10.4.2010, at about 12.00 noon, the Senior Drug Inspector Mr. K. Ram, alongwith Mr. Harikesh Singh, sub-inspector, police station Lanka, Mr. It is also alleged that some of the blood seized as aforesaid were found of the inferior quality with less Haemoglobin etc. 6. It further appears that on 10.4.2010, at about 12.00 noon, the Senior Drug Inspector Mr. K. Ram, alongwith Mr. Harikesh Singh, sub-inspector, police station Lanka, Mr. Rajesh Saroj, incharge police outpost Lanka and constable Dinesh Prajapati sealed the aforesaid Blood Bank and delivered its keys (five in number) to Mr. Rajesh Saroj, Incharge Police Outpost Lanka. The revisionist Manoj Prasad Singh, who is admittedly the proprietor of the Blood Bank, moved an application for release of the Blood Bank but the learned Additional Chief Judicial Magistrate rejected the same. Consequently this revision has been filed. 7. Mr. Ravindra Nath Rai for the revisionist submitted that the revisionist has not prayed for release of the seized bottles of the human blood and conceded that the seized blood may not be utilised and is liable to be destroyed. In view of this submission, it is not necessary to give any direction in this regard. The appropriate authority may proceed accordingly. 8. In regard to keep the premises of the Blood Bank locked by the police, Mr. Ravindra Nath Rai submitted that the licence granted in favour of M/s. Jaimeet Swasthya Sewa Sansthan still subsists and has neither been suspended nor cancelled, therefore, the police as well as the Chief Drug Inspector had no power to put locks on the premises of the Blood Bank. Mr. Rai further submitted that neither the Senior Drug Inspector nor the police nor any other authority provided any opportunity of hearing to the revisionist or the Society before putting locks. There is also no indication in the seizure memo that putting locks on the Blood Bank premises was necessary for the investigation of the case. 9. A licence for operation of a Blood Bank or for processing of whole human blood for components and manufacture of blood products is granted in accordance with the rule 122-G of the Drugs and Cosmetics Rules, 1945. 9. A licence for operation of a Blood Bank or for processing of whole human blood for components and manufacture of blood products is granted in accordance with the rule 122-G of the Drugs and Cosmetics Rules, 1945. Rule 122-O provides for cancellation and suspension of a licence which reads as follows : “122-O. Cancellation and suspension of licences.—(1) The Licensing Authority or Central Licence Approving Authority may for licences granted or renewed by him after giving the licensee an opportunity to show-cause why such an order should not be passed by an order in writing stating the reason thereof, cancel a licence issued under this part or suspend it for such period as he thinks fit, either wholly or in respect of some of the substances to which it relates or direct the licensee to stop collection, storage, processing, manufacture and distribution of the said substances and thereupon order the destruction of substances and stocks thereof in the presence of an Inspector, if in his opinion, the licensee has filed to comply with any of the conditions of the licence or with any provision of the Act or Rules thereunder. (2) A licensee whose licence has been suspended or cancelled may, within three months of the date of the order under sub-rule (1) prefer an appeal against that order to the State Government or Central Government, which shall decide the same.” 10. It is therefore, manifest that the licensing authority or the Central Licence Approving Authority has power to cancel or suspend the licence. The licensee is entitled to an opportunity to show-cause against the proposal for cancellation or suspension of the licence. Therefore, the licensing authority or the Central Licence Approving Authority, as the case may be, is under legal obligation to provide an opportunity to the licensee to show cause why the order for cancellation or suspension of the licence should not be passed against him. Even the aforesaid authority has power to direct the licensee to stop collection, storage, processing, manufacture and distribution of the substances. In respect of this direction too an opportunity to show-cause to the licensee must be given. Even the aforesaid authority has power to direct the licensee to stop collection, storage, processing, manufacture and distribution of the substances. In respect of this direction too an opportunity to show-cause to the licensee must be given. When the licensee puts his explanations or furnishes relevant causes, the aforesaid authority has to give due consideration to such reasons or causes and to form an opinion as to whether or not the licensee has failed to comply with any of the conditions of the licence or any of the provisions of the Act or the Rules made thereunder. If there is a breach of the conditions of the licence or of the Act or the Rules attributable on the part of the licensee, the licensing authority or the Central License Approving Authority, as the case may be, has power to cancel or suspend the licence or to give any of the aforesaid directions. Under sub-rule (2) of Rule 122-O of the Rules, the licensee has an option to prefer an appeal to the State Government or the Central Government, as the case may be, within three months. 11. In this case, there is no allegation that the licence granted in favour of the revisionist Blood Bank has been either cancelled or suspended or any other order or direction has been passed against the Blood Bank in terms of Rule 122-O of the Rules. There is also no averment in the memo prepared by the officials while putting locks in the Blood Bank premises that putting locks in the Blood Bank premises was necessary for proper investigation of the case or there was some order of the Magistrate having jurisdiction or any authority for putting the locks. The putting locks in the Blood Bank premises had a civil consequence, therefore, an opportunity of hearing was necessary before doing so. This necessity is one of the basic requirements of Rule 122-O of the Rules also, but no such opportunity has been given either to the Society or the revisionist. Therefore, putting locks in the premises of the Blood Bank does not appear to be proper. 12. If, in order to make proper investigation of the criminal case registered against the revisionist, putting locks on the premises of the Blood Bank was necessary, the officials putting locks should have indicated so in the seizure memo. But it has not been done. 12. If, in order to make proper investigation of the criminal case registered against the revisionist, putting locks on the premises of the Blood Bank was necessary, the officials putting locks should have indicated so in the seizure memo. But it has not been done. Moreover, if the Blood Bank was in any way guilty of committing breach of the terms and conditions of the licence or of the Act or Rules, the proper course for the appropriate authority was to proceed for suspension or cancellation of the licence and to pass appropriate order in accordance with law. There was no justification to put the locks straightway without observing legal formalities and providing an opportunity of hearing to the revisionist or the society. 13. For the reasons discussed above, the revision is allowed. The premises of the Blood Bank is directed to be released in favour of M/s. Jaimeet Swasthya Sewa Sansthan managed by the revisionist Manoj Prasad Singh on his furnishing an undertaking to the effect that the Blood Bank will not be operated in any way in breach of the terms and conditions of the licence or of the aforesaid Act or Rules made thereunder. This order will not in any way adversely affect the proceedings, if any, concluded or is being held for cancellation or suspension of the licence. If the revisionist’s licence has already been suspended or cancelled, he will not be entitled to the benefit of this order till the restoration of the licence. —————