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2011 DIGILAW 25 (PNJ)

Ashok Kumar v. State of Punjab

2011-01-04

NIRMALJIT KAUR

body2011
JUDGMENT Nirmaljit Kaur, J. 1. This is a petition under Section 482 of the Code of Criminal Procedure for quashing of FIR No. 111 dated 08.10.2009 registered at Police Station, Talwandi Sabo, District Bathinda under Section 420 of IPC and 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, 1945 and the Rules framed thereunder. Under the Drugs and Cosmetics Rules, 1945, two licenses were issued to the petitioner i.e. Form 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. On the basis of a secret information, the said FIR was registered against the present petitioner. 3. It was contended by the learned counsel for the petitioner that from the version of the FIR, no offence under Section 420 is made out against the petitioner, particularly, when the petitioner is having a valid drug licence so as to entitle him to stock, offer or sale the drugs/medicines mentioned in various schedules of the Drugs and Cosmetics Rules, 1945 except those mentioned in Schedule X of the said Rules. 4. It was also contended by the learned counsel for the petitioner that the present FIR cannot be sustained for an offence under Section 15 of the Indian Medical Council Act, 1956 as the Magistrate cannot take cognizance on the basis of police report for an offence under Section 15 of the Act. 5. 4. It was also contended by the learned counsel for the petitioner that the present FIR cannot be sustained for an offence under Section 15 of the Indian Medical Council Act, 1956 as the Magistrate cannot take cognizance on the basis of police report for an offence under Section 15 of the Act. 5. 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 Register- 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. And further submitted that the Drugs and Cosmetics Act, 1940 and the rules framed there under i.e. Drugs and Cosmetics Rules, 1945 are complete, in itself, and sufficient to deal with any of the offences with respect to distribution, sale, purchase or exhibit for sale or offer, manufacturing etc. of drugs and cosmetics. Further, under the said Act and rules framed thereunder, only the Drug Inspector, besides the person aggrieved or a registered consumer association is competent to take any action with regard to violation of any of the provisions of the said Act. Moreover, once the Special Act, i.e. Drugs and Cosmetics Act, 1940 and the rules framed thereunder are sufficient enough to deal with every eventuality pertaining to the sale, stock, distribution etc. Moreover, once the Special Act, i.e. Drugs and Cosmetics Act, 1940 and the rules framed thereunder are sufficient enough to deal with every eventuality pertaining to the sale, stock, distribution etc. of medicines, then invoking the General Law i.e., the provision of IPC would amount to encroachment upon the occupied fields. Moreover, it is also well established principle of law that Special Act will prevail upon the General Act. 6. Parties are heard. 7. With respect to the argument that offence punishable under Section 15 (3) of the Act is a non-cognizable offence and, as such, the Magistrate cannot take cognizance of the offence on the basis of police report, the said issue is squarely covered by the ratio of the judgment rendered 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, wherein, it is held that the offence under Section 15 of the Indian Medical Council Act, 1956 being non-cognizable, 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. 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. 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. 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. In the present case, FIR is registered by the Police. The Magistrate cannot take cognizance on the basis of police report. 10. In the present case, FIR is registered by the Police. The Magistrate cannot take cognizance on the basis of police report. 10. As such, the present FIR is not maintainable for an offence under Section 15 of the Indian Medical Council Act, 1956. 11. With respect to the question as to whether Section 420 IPC is made out or not in the facts of the present case, it is seen that the only allegation in the FIR is that “the petitioner was selling intoxicating medicines without the prescription of any doctor and was cheating the innocent persons.” 12. Whereas, some relevant portion of Section 18 (c) of the Drugs and Cosmetics Act, 1940 reads as under:- 18. Prohibition of manufacture and sale of certain drugs and cosmetics From such date as may be fixed by the State Government by notification in the official gazette in this behalf, no person shall himself or by any other person on his behalf a) xx xx xx b) xx xx xx c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale or distribute any drug or cosmetics except under and in accordance with the conditions of a licence issued for such purpose under this chapter.” 13. The licence is issued subject to the conditions as specified in Rule 65 of the Drugs and Cosmetics Rules, 1945. Sub conditions (1), (2) and (3)(1) of Rule 65 of the Drugs and Cosmetic Rules, 1945 read as under:- “(1) Any drug shall, if compounded or made on the licensee's premises, be compounded or made by or under the direct and personal supervision of a registered Pharmacist. (2) The supply, otherwise than by way of wholesale dealing of any drug supplied on the prescription of a Registered Medical Practitioner shall be effected only by or under the personal supervision of a registered pharmacist. (3) (1) The supply of any drug other than those specified in Schedule X on a prescription of a registered medical practitioner shall be recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of entry in this regard shall be entered on the prescription. (3) (1) The supply of any drug other than those specified in Schedule X on a prescription of a registered medical practitioner shall be recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of entry in this regard shall be entered on the prescription. The following particulars shall be entered in the register- a) serial number of the entry, b) the date of supply, c) the name and address of the prescriber, d) the name and address of the patient, or the name and address of the owner of the animal if the drug supplied is for veterinary use” 14. Rule 66 provides for cancellation and suspension of licenses in case of violation of any of the terms and conditions which reads as under:- 66. Cancellation and suspension of licences: 1) The licensing authority may, after giving the licensee an opportunity to show cause why such an should not be passed by an order in writing stating the reasons therefor, 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, if in his opinion, the licensee has failed to comply with any of the conditions of the licence or with any provisions of the Act or Rules thereunder:- 15. The petitioner had a valid licence on the date of registration of the FIR. He was, thus, on the date of registration of the FIR was entitled to the privileges granted under the said Act. It is, therefore, not disputed that the petitioner having a valid licence was entitled to possess, sell and dispense any medicine on the prescription of medical practitioner. In case, the petitioner is found to be selling the medicines without a valid licence or without the prescription by a registered medical practitioner, the Drugs and Cosmetics Act and rules framed thereunder are complete and sufficient to deal with any of the said offence. 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. The relevant portion of para 2 of the said reply reads as under:- “2. 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. The relevant portion of para 2 of the said reply reads as under:- “2. ...........As per information provided by the District Drug Inspector Bathinda vide his letter No. Drugs/10/330 dated 04.03.2010, the licence issued to the petitioner has since been cancelled by the Licensing Authority, Chandigarh on 27.11.09. Even under the said licence, the petitioner was authorized to sell the recovered drugs only on the prescription of a doctor, as per provisions of Drugs and Cosmetics Act 1945 and Rules 1945 made thereunder.” 16. Since the offence falls under the Drugs and Cosmetics Act, 1940, the licence of the petitioner has already been cancelled. Thus, the allegations in the FIR do not constitute the ingredients of Section 420 IPC. In fact, in another similar FIR bearing No. 27 dated 16.03.2006 under section 420 IPC and section 15 of the Indian Medical Council Act, 1956 registered against the present petitioner, the Sub Divisional Judicial Magistrate, Talwandi Sabo, vide its order dated 15.11.2006 discharged the petitioner by coming to the conclusion as under:- “3. After giving my thoughtful consideration to rival submissions and on careful perusal of report under Section 173 Cr.P.C the medicines recovered from the possession of accused from the shop being run by him at Village Jodhpur Pakhar, the statements under Section 161 Cr.P.C and the report of District Drugs Inspector in which in pursuance of letter having written by the SHO, he had opined the details qua the medicines having been recovered and underneath the said letter sent by him to SHO, it has been mentioned as to those accused holding a valid licence for the retails, sale of medicines, issued in the name of M/s Garg Medical Hall, Jodhpur, for the sale of medicines under the provisions of Drugs and Cosmetics Act. Copy of certification of registration dated 29.06.1993 in the name of accused whereby he has been registered as a Pharmacist, has also been placed on file when the same are taken as a whole one thing is crystal clear that as per the prosecution version itself i.e the report of District Drugs Inspector the accused has a valid licence to deal with the sale of medicines under the name of M/s Garg Medical Hall and the name of Village Jodhpur Pakhar has also been mentioned therein. It is the said fact which altogether falsity the prosecution version as to there being prima facie material for framing of charge against the accused, on the score that he had been indulging in sale of medicines without having a licence rather holding of valid licence, thereafter keeping the medicines is nothing but a lawful act, hence, on the strength of documents before the Court coupled with the factum as to there being a valid licence in favour M/s Garg Medical Hall, Jodhpur Pakhar and there being a certificate of registration in the name of accused whereby he has been registered as Pharmacist, all speaks volume as to there being no cogent material for framing of charge against the accused, rather the allegations are nothing but groundless. Hence, the accused Ashok Kumar is hereby discharged of the offence under Section 420 IPC as there is no prima facie material even remotely to go with the trial under said Section ad similarly with regard to offence under Section 15 of Indian Medical Council Act, the accused is discharged. File be consigned to record room.” 17. No appeal has been filed against the said order. 18. The facts and allegations in the present FIR are identical. Accused is also the same. 19. Thus, it is evident that the present FIR bearing No. 111 dated 08.10.2009 under Section 420 IPC and Section 15 of the Indian Medial Council Act, 1956 is not maintainable. The fact that the petitioner had a valid licence on the date of registration of the said FIR and the allegation that he was selling the medicines without licence or without the prescription of the Medical Practitioner is an offence which can be dealt with by the Drugs and Cosmetics Act, 1940 or the Indian Medical Council Act, 1956 for which a procedure is prescribed i.e. Of filing a complaint in accordance with law. 20. Thus, in view of above discussion as well as the the judgment rendered by the Division Bench of this Court in the case of Dr. Barinder Singh (supra), the present petition is allowed and FIR No. 111 dated 08.10.2009 registered at Police Station, Talwandi Sabo, District Bathinda under Section 420 of IPC and 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, under the Special Act as discussed above and as permissible in law. Allowed in the above terms. Petition allowed.