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2011 DIGILAW 20 (PNJ)

Ashok Kumar v. State of Punjab

2011-01-04

NIRMALJIT KAUR

body2011
JUDGMENT Nirmaljit Kaur, J.:-This is a petition under Section 482 of the Code of Criminal Procedure for quashing of FIR No. 95 dated 18.09.2009 registered at Police Station, Talwandi Sabo, District Bathinda under Section 15 of the Indian Medical Council Act, 1956 (Annexure P2) and all other consequential proceedings arising out of the same. 2. Facts, in brief, are that the petitioner was the sole proprietor of M/s Garg Medical Hall, Village Jodhpur Pakhar, Tehsil Talwandi Sabo, District Bathinda and was running a Chemist shop. The petitioner was having a valid license issued by a competent authority under the Drugs and Cosmetics Act, 1940 and the Rules framed thereunder. Under the Drugs and Cosmetics Rules, 1945, two licenses were issued to the petitioner i.e. From No. 20 and the other under Form No. 21. Form No.20 relates to the license to sell, stock or exhibit or offer for sale or distribute by retail any drugs other than those specified in Schedule C and C (I) and X and Form No. 21 relates to the license to sell, stock or exhibit (or offer) for sale, or distribute by retail, drugs specified in Scheduled C and C (I) excluding those specified in Schedule X to the Drugs and Cosmetics Rules, 1945. It is pertinent to mention here that the above mentioned licenses were issued to the petitioner firm on 20.04.2000 and thereafter the same were renewed from time to time by the competent authority. The drugs licenses of the petitioner have been cancelled by the Licencing Authority, Chandigarh on 27.11.2009 on account of the violations of the Drugs and Cosmetics Act and the Rules framed there under. However, on the date of the registration of the FIR i.e. on 18.09.2009, the petitioner was having a valid drug licence issued by the competent authority under the provisions of the Drugs and Cosmetics Act and the rules framed thereunder. 3. It was contended by the learned counsel for the petitioner that the petitioner was entitled to stock, sell, exhibit or distribute all the drugs specified in Schedule H of the Drugs and Cosmetics Rules, 1945. On the basis of secret information, FIR 95 under Section 15 of the Indian Medical Council Act, 1956 was registered against the petitioner on 18.09.2009. It was contended by the learned counsel for the petitioner that the petitioner was entitled to stock, sell, exhibit or distribute all the drugs specified in Schedule H of the Drugs and Cosmetics Rules, 1945. On the basis of secret information, FIR 95 under Section 15 of the Indian Medical Council Act, 1956 was registered against the petitioner on 18.09.2009. It was further contended that the present FIR cannot be sustained as no offence under Section 15 of the Indian Medical Council Act, 1956 is made out against the present petitioner. 4. Section 15 of the Indian Medical Council Act, 1956 reads as under:- “15. Right of persons possessing qualifications in the Schedules to be enrolled - 1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register. 2) Save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Registera- a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority; b) shall practise medicine in any State; c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner; d) shall be entitled to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 (1 of 1972) on any matter relating to medicine. 3) Any person who acts in contravention of any provisions of Sub section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. It was further contended that offence punishable under Section 15 (3) of the Act is a non-cognizable offence and the FIR is accordingly not maintainable for violation of the provisions of Section 15 of the Indian Medical Council Act, 1956. 5. Reliance is placed on the judgment rendered by the Division Bench of this Court in the case of Dr. It was further contended that offence punishable under Section 15 (3) of the Act is a non-cognizable offence and the FIR is accordingly not maintainable for violation of the provisions of Section 15 of the Indian Medical Council Act, 1956. 5. Reliance is placed on the judgment rendered by the Division Bench of this Court in the case of Dr. Barinder Singh, President, Ludhiana Medical Welfare Association v. State of Punjab and others reported as 2009 (5) RCR (Criminal) 565 to state that the said offence being noncognizable, a Magistrate can take cognizance of such an offence only on a complaint filed before him under Section 190 (1) (a) read with Section 200 of the Code of Criminal Procedure and, therefore, will not take a cognizance of a police report. 6. Reply by way of affidavit of Surinder Pal Singh, PPS, Deputy Superintendent of Police, Talwandi Sabo, District Bathinda on behalf of respondents No. 1 and 2 has been filed. Para 4 of the said reply reads as under:- “4. That the police of Police Station Talwandi Sabo, District Bathinda prepared a charge sheet for presentation before the competent court in case FIR No. 95 dated 18.09.2009 under Section 15 of the Indian Medical Council Act, 1956 and the same was submitted to the prosecution branch for check up and the learned APP has made remarks that under Section 15 of the Indian Medical Council Act is non-cognizable and bailable in nature and the charge sheet has been returned back. In view of the above circumstances, the police is unable to take cognizance of the offence committed by the petitioner and the Senior Superintendent of Police has written a letter No. 18570/C dated 28.06.2010 to the Drugs Inspector Bathinda for taking appropriate action against the petitioner under the provisions of law.” 7. Thus, it is evident that a charge sheet has since been returned. It is also the admitted position that no cognizance of the offence can be taken on the basis of a police report. In fact, the issue involved in the present case is totally covered by the Division Bench judgment rendered in the case of Dr. Barinder Singh (supra). Thus, it is evident that a charge sheet has since been returned. It is also the admitted position that no cognizance of the offence can be taken on the basis of a police report. In fact, the issue involved in the present case is totally covered by the Division Bench judgment rendered in the case of Dr. Barinder Singh (supra). Para 7 of the aforesaid judgment reads as under:- Section 15(3) of the Indian Medical Council Act, 1956 as it stands on the statute book prescribes a punishment of only one year for any one contravening the provisions of the said Act. Part (ii) of Schedule (I) of the Code of Criminal Procedure deals with the classification of offences against-other laws and inter-alia provides that if the offence is punishable with imprisonment for a period of less then three years or with fine only, the same would be non-cognizable and can be tried by a Magistrate. This implies that a Magistrate taking cognizance of such an offence can do so on a complaint filed before him under Section 190(1)(a) read with Section 200 of the Code of Criminal Procedure. The expression ‘Complaint’ has been defined in Section 2(d) of the Code of Criminal Procedure to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. This implies that no sooner the Magistrate receives a complaint containing an allegation orally or in writing, he can take cognizance under Section 190 and issue process under Section 204 of the Code of Criminal Procedure. The expression ‘offence’ as defined under Section 2 (n) means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle-trespass Act, 1871.” 8. Directions as contained in para 11 of the said judgment further read thus:- i) The observations made in order dated 13.10.1998 to the effect that the offence punishable under Sections 15(3) of the Indian Medical Council Act, 1956 has by reason of amendment of the said provision become cognizable, shall stand deleted. Directions as contained in para 11 of the said judgment further read thus:- i) The observations made in order dated 13.10.1998 to the effect that the offence punishable under Sections 15(3) of the Indian Medical Council Act, 1956 has by reason of amendment of the said provision become cognizable, shall stand deleted. ii) The State Governments of Punjab, Haryana and U.T. Chandigarh shall by a special or general order authorise for their respective territories all the Civil Surgeons in their respective districts, for filing of complaints under Section 32 of the Drugs and Cosmetics Act, 1940. iii) The State Governments of Punjab, Haryana and Union Territory, Chandigarh shall also authorise the Drug Inspectors and/or any other Gazetted Officers including the Civil Surgeons in their respective districts to file complaints for offences punishable under Section 15(3) of the Indian Medical Council Act, 1956. iv) The State Governments shall issue directions to the Civil Surgeons in their respective territorial jurisdiction to verify the registration of medical practitioners and their qualifications and initiate action including the action by way of prosecution of the offenders in the competent jurisdictional Courts. v) The Civil Surgeons shall also be asked by the State Governments concerned to send annual reports to them about the verification of the qualifications and registrations of the medical practitioners conducted by them and the action, if any, taken against those found to be violating the said provisions.” 9. Thus, in view of the judgment rendered by the Division Bench of this Court in the case of Dr. Barinder Singh (supra) as well as the reply filed by the State, wherein, it is admitted that the police is not competent to take cognizance of the offence committed by the petitioner, the present petition is allowed and FIR No. 95 dated 18.09.2009 registered at Police Station, Talwandi Sabo, District Bathinda under Section 15 of the Indian Medical Council Act, 1956 (Annexure P2) and all other consequential proceedings arising out of the same are hereby quashed. However, the same shall not come in the way of the competent authority i.e. Civil Surgeon as already referred in Dr. Barinder Singh’s case (supra) as well as any other authority to launch prosecution against the present petitioner, if permissible in law. 10. Allowed in the above terms. ---------0.B.S.0------------