ORDER : 1. The petitioner No. 1 M/s. Torque Pharmaceuticals Private Limited, is a company incorporated under the Indian Companies Act, 1956. It is engaged in manufacturing and supply of the bulk drugs. The petitioner No. 2 is the authorized signatory of the said company. They have been made accused in Agamkuan P.S. Case No. 332 of 2012 dated 31.12.2012 registered under Sections 406, 420, 273 read with 34 of the Indian Penal Code (for short the Code), 27(b)(ii) and 27(d) of the Drugs and Cosmetics Act, 1940 (for short the Act, 1940). The petitioners have made two prayers in the present application filed under Articles 226 and 227 of the Constitution of India. The first prayer of the petitioners is to quash the FIR of the aforesaid case and their second prayer is for issuance of a direction to the respondents to unlock the sealed premises/godowns and to release the drugs/medicines which belong to the petitioner No. 1. Basic facts: 2. One Avinash Patel, Drug Inspector, Patna-7 submitted a written report to the officer-in-charge of Agamkuan Police Station on 31.12.2012 stating therein that in the light of the order as contained in memo No. 1429 (15) dated 20.12.2012 of the State Drug Controller, Bihar, Patna, after taking approval from the Principal Secretary, Department of Health, an inspecting team inspected the godown of M/s. Torque Pharmaceuticals Private Limited, Transport Nagar, Pahari, Patna. In course of inspection, it was found that the said firm had stored drugs in two other unauthorized godowns without obtaining license. As a result, the drugs stored in the two unauthorized godowns were seized in accordance with law in presence of the representative of the firm. The inspecting team conducted inspection from 24.12.2012 to 31.12.2012 and prepared its inspection report. In the written report submitted to the police, it has been stated as follows:- (i) Methylergometrine Maleate Injection I.P. (ERGOMAC), which is to be stored in refrigerator, was found at a normal room temperature. The transportation of the said medicine had to be conducted maintaining cold chain. However, it was found that the said medicine was transported to the unauthorized godowns from the factory without maintaining the required cold chain. As per rule, the medicine was to be stored in a temperature not exceeding eight degree centigrade. The said medicine was not stored at the recommended temperature in the unauthorized godowns. However, it was found that the said medicine was transported to the unauthorized godowns from the factory without maintaining the required cold chain. As per rule, the medicine was to be stored in a temperature not exceeding eight degree centigrade. The said medicine was not stored at the recommended temperature in the unauthorized godowns. Thus, it is alleged that the said act of the petitioners was in violation of Rule 65 (17) of the Drugs and Cosmetics Rules, 1945 (for short the Rules), which is punishable under section 27(b)(ii) of the Act, 1940. (ii) Misbranded drugs were also found stored in unauthorized godowns. Outer carton of Methylergometrine Maleate Injection I.P. (ERGOMAC Injection) was bearing the words store between eight degree and twenty five degree centigrade. However, on the label of the ampoules it was written as store between two degree and eight degree centigrade. It is alleged that due to this misleading, contradictory and wrong information written on the label of the above said medicines, the same were misbranded drugs as per section 17 of the Act, 1940 and manufacture, sale, purchase, exhibition for sale and stocking of such medicines is prohibited under section 18(a)(i) of the Act, 1940 and contravention of the same is punishable under section 27(d) of the Act, 1940. (iii) Expired drugs were found stored against the Rules. Few expired drugs were found stored separately in the corner of the room which is contravention of Rule 65(17) of the Rules, 1945. Such act is contrary to section 18(c) of the Act, 1940 which is punishable under section 27(b)(ii) of the Act, 1940. 3. On the basis of the aforesaid allegations a formal FIR was drawn and Agamkuan P.S. Case No. 332 of 2012 was registered against the petitioners and one Pramjeet Singh Chadhwal, the Managing Director of the company in question. 4. A number of documents including inspection report and samples drawn in Form-17 have been enclosed with the FIR. From perusal of the enclosed Form-17, it appears that the inspection team took sample of 34 drugs for the purpose of test or analysis in presence of one Sri Ram Chaudhary, who is said to be present as a representative of petitioner No. 2 at the time of search and seizure. Form-17A further shows that the samples were divided into four portions and one sealed portion was handed over to said Sri Ram Chaudhary. 5. Form-17A further shows that the samples were divided into four portions and one sealed portion was handed over to said Sri Ram Chaudhary. 5. The inspection report appended with the FIR shows that the drugs found in the two unauthorized godowns were seized and handed over to Sri Ram Chaudhary in presence of the Magistrate, police officers and the witnesses. The said Sri Ram Chaudhary was directed not to dispose of the seized drugs without obtaining any order from the court. Arguments on behalf of the petitioners. 6. Mr. Jitendra Singh, learned senior counsel appearing on behalf of the petitioners, submitted that in view of section 32 read with 22 of the Act, 1940, the institution of the FIR of the present case is without jurisdiction. According to him, offences under sections 406 and 420 of the Code are not attracted in the back ground of the allegations made in the FIR. He submitted that the police is not empowered to register any FIR under the Act, 1940 and to investigate the case so as to submit charge-sheet under section 173(2) of the Code of Criminal Procedure (For short the Cr. P.C.) 7. Learned senior counsel submitted that the petitioner No. 1 is a juristic person. It is engaged in manufacturing bulk drugs. It had entered into a rate contract with the State Health Society, Bihar, Patna, for supply of sixty types of drugs to the Government Hospitals and Primary Health Centers situated in the State of Bihar. In order to give effect to the rate contract, agreements were executed between the State Health Society, Bihar and petitioner No. 1 on 16.8.2011, 13.6.2012 and 19.9.2012 for supply of sixty drugs in bulk. In the said agreements, it had been specifically stipulated that first supply shall be ensured within thirty days of receipt of the first order and, thereafter, all subsequent supplies shall be made within fifteen days of receipt of the orders. It has also been contained in the agreements that if the supplier fails to supply the required medicines within the stipulated time without sufficient reason, suitable action including termination of the contract shall be taken against the supplier and the supplier may be blacklisted and debarred from applying for any tender floated by the State Health Society. 8. It has also been contained in the agreements that if the supplier fails to supply the required medicines within the stipulated time without sufficient reason, suitable action including termination of the contract shall be taken against the supplier and the supplier may be blacklisted and debarred from applying for any tender floated by the State Health Society. 8. Learned senior counsel further submitted that roof of the existing godown taken on rent for storage of medicines was damaged which urgently required repairing and, as such, the owner of the said godown vide letter dated 10.12.2012 informed the petitioner company to either vacate the godown or reduce the stored goods so that repairing works may be carried out. 9. Learned senior counsel further submitted that in the interest of public and to ensure supply in terms of the agreements referred above, huge quantity of medicines were procured form the manufacturing unit of the company (petitioner No. 1) situated at Derawasi, Chandigarh and it was intimated to the concerned authorities to get the delivery of the medicines upon cash carry basis in terms of the agreement which provides that after receiving the invoice, the concerned Superintendent, Medical College Hospital, Civil Surgeon and Chief Medical Officer have to receive the drugs within twenty days of supply order and the purchase will be based on Cash and Carry mechanism. 10. Learned senior counsel submitted that despite several requests, concerned authorities delayed the receiving of medicines which led to accumulation of huge stock in the local depot of the company (petitioner No. 1) at Patna. Sensing the problem and to safeguard the procured medicines, applications were submitted before the licensing authorities in proper format along with requisites Chalans to grant license for the two godowns situated near the existing licensed godown of the company which was in dilapidated condition and was being repaired. As the medicines intended to be supplied to the Government Hospitals could not be thrown on road and, as such, in good faith, the same were stored in the said two godowns for which applications were submitted before the licensing authority for grant of license vide applications dated 14.12.2012 and 18.12.2012 respectively along with respective Chalans. 11. Learned senior counsel submitted that in the meantime on 24.12.2012, the alleged inspection was conducted by the inspecting team. 11. Learned senior counsel submitted that in the meantime on 24.12.2012, the alleged inspection was conducted by the inspecting team. The entire situation and actual state of affairs were explained to the said team which would be apparent from the inspection report appended with the FIR but still with malicious intention and on the basis of wrong allegations of facts, without considering the relevant provisions of the Act, 1940 as well as monographs of the Indian Pharmacopeia, the informant with vague allegations submitted the written report on 31.12.2012 to the officer-in-charge of Agamkuan Police Station and on the basis of which the impugned FIR was registered. According to the learned senior counsel, as a matter of fact, the monograph has not been taken into consideration. The allegations have been made in reference of the drugs namely, Methylergometrine Maleate Injection I.P. (Ergomac) that the same was not kept in refrigerator and cold chain was not being maintained. In fact, the monograph of the said drug prescribes storage condition as store protected from light. There is no reference to maintain the cold temperature not exceeding eight degree centigrade. The aforesaid allegation is entirely misconceived and palpably false. 12. Lastly, learned senior counsel submitted that the entire procedure adopted by the informant in institution of the case is contrary to the statutory provisions of the Act, 1940 and, thus, the FIR in question is vitiated in law. In support of his submissions he has placed his reliance on a judgment in Hindustan Lever Ltd. vs. State of Bihar and Others, 1997 BLJ 899 and an unreported order dated 21.1.2011 passed by a Division Bench of this court in Om Prakash Sah vs. State of Bihar, Cr. Misc. No. 808 of 1998. Arguments on behalf of the State. 13. Per contra, Mr. Prabhu Narayan Sharma, learned counsel for respondents, submitted that the prayers made by the petitioners in the writ petition are neither tenable nor maintainable in view of the fact that the allegations made in the FIR do constitute a cognizable offence and, as such, the FIR cannot be quashed at the threshold. 14. He submitted that the inspecting team inspected the unauthorized godowns of the company with approval of the Principal Secretary, Department of Health, Government of Bihar. The team found that the medicines were kept in those unauthorized godowns without any license or authorization of competent officer. 14. He submitted that the inspecting team inspected the unauthorized godowns of the company with approval of the Principal Secretary, Department of Health, Government of Bihar. The team found that the medicines were kept in those unauthorized godowns without any license or authorization of competent officer. The inspecting team prepared inspection report which forms part of the FIR. 15. Learned counsel further submitted that the investigation of the case is at a crucial stage. According to him, apart from the offence alleged under the Act, 1940, the FIR has also been instituted for the cognizable offences under sections 420, 406 and 273 read with 34 of the Code and, therefore, the police is fully competent to investigate the case. 16. Mr. Sharma submitted that the FIR has been instituted on the basis of the written information submitted by the Drug Inspector, who is an authorized person to launch prosecution under section 32 of the Act, 1940 to lodge FIR and, as such, the FIR in question does not suffer from any procedural illegality. In support of his arguments he has placed reliance on a Division Bench decision of the Bombay High Court in Chunilal Vallabhaji Gandhi vs. State, AIR 1959 Bombay 554. Issues involved in the case. 17. Having heard the rival submissions made on behalf of the parties, I find that two important questions have been raised to be adjudicated in the present case which are as follows:- (i) Whether or not the FIR in question is contrary to the interdict contained in the statute prescribing institution of an FIR. (ii) Whether or not the ingredients of the offences under sections 406, 420 and 273 of the Code are made out. Analysis of different provisions of law: 18. I would like to take up the second issue first. Section 406 of the Code reads as under:- "406. Punishment for criminal breach of trust – Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 19. Section 406 of the Code prescribes punishment for the offences defined in the preceding section 405 of the Code. The gist of the offence of criminal breach of trust, as defined under section 405 of the Code, is entrustment of property and dishonest misappropriation thereof. 19. Section 406 of the Code prescribes punishment for the offences defined in the preceding section 405 of the Code. The gist of the offence of criminal breach of trust, as defined under section 405 of the Code, is entrustment of property and dishonest misappropriation thereof. The person entrusted may himself misappropriate or he may willfully suffer another person to do so. Thus, the basic requirements to bring home the accusation under section 405 of the Code are the requirements to prove conjointly entrustment of property and misappropriation of the same with dishonest intention. I find that there is nothing alleged in the FIR on the basis of which it can even remotely be imagined that the ingredients of the offence under section 406 of the Code are attracted in the present case. 20. Section 420 of the Code reads as under:- "420. Cheating and dishonestly inducing delivery of property – Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 21. The essential ingredients of the offence under section 420 of the Code are as follows:- (1) There should be fraudulent or dishonest inducement of a person by deceiving him:- (2)(a) The person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property. (b) The person so induced to do anything which he would not do or omit if he were not so deceived. (c) In cases covered by second part of clause (a), the act or omission should be one which caused or was likely to cause damage or harm to the person so induced in body, mind or property. 22. From the allegations made in the FIR, it is apparent that the ingredients of section 420 of the Code are completely missing in the present case. 23. So far as section 273 of the Code is concerned, the same reads as under:- "273. 22. From the allegations made in the FIR, it is apparent that the ingredients of section 420 of the Code are completely missing in the present case. 23. So far as section 273 of the Code is concerned, the same reads as under:- "273. Sale of noxious food or drink – Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." 23A. The essential ingredients of the offence under section 273 are as follows:- (1) The accused sold or offered or exposed for sale the article of food or drink. (2) Such article of food and drink had been rendered, or had become noxious or was in a state unfit for being used as food or drink. (3) The accused at the time of sale etc. knew or had reason to believe that the said article was noxious or unfit for food or drink. 24. In the present case, it is not the case of the prosecution that the accused sold or offered or exposed for sale the drugs in question. Moreover, section 273 of the Code is a non-cognizable offence. Section 155(2) of the Cr. P.C. clearly bars a police officer to investigate a non-cognizable offence without the order of a Magistrate having power to try such case. Hence, if no cognizable offence under the Code was made out, the police was not competent to institute FIR and investigate the same. 25. So far as the first issue involved in the case is concerned, in order to appreciate the rival arguments made by the parties, it would be appropriate to refer the relevant provisions of the Act, 1940. 26. Section 3(e) of the Act, 1940 defines Inspector which reads as under:- "3(e) Inspector means:- (i) In relation to Ayurvedic, Siddha or Unani drugs, an Inspector appointed by the Central Government or a State Government under section 33-G. (ii) In relation to any other drug or cosmetic, an Inspector appointed by the Central Government or a State Government under section 21." 27. Section 13 of the Act, 1940 deals with the offences. Chapter IV of the Act, 1940 deals with the manufacture, sale and distribution of drugs and cosmetics. Section 16 of this Chapter deals with standards of quality. As per section 16 all drugs must comply with the standard set out in the second schedule. Sections 17, 17-A, 17-B, 17-C and 17-D of the Act, 1940 deals with misbranded drugs, adulterated drugs, spurious drugs, misbranded cosmetics and spurious cosmetics respectively. 28. Section 18 of the Act, 1940 deals with prohibition of manufacture and sale of certain drugs and cosmetics which reads as under:- "18. Prohibition of manufacture and sale of certain drugs and cosmetics:- From such date as may 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) Manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute:- (i) Any drug which is not of a standard quality, or is misbranded, adulterated or spurious. (ii) Any cosmetic which is not of a standard quality, or is misbranded, adulterated or spurious. (iii) Any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true formula or list of active ingredients contained in it together with the quantities, thereof. (iv) Any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims to prevent, cure or mitigate any such disease or ailment, or to have any such other effect as may be prescribed. (v) Any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended. (vi) Any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder. (b) Sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder. (vi) Any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder. (b) Sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder. (c) Manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic, except under, an in accordance with the conditions of, a license issued for such purpose under this Chapter: Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis: Provided further that the Central Government may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale or distribution of any drug or class of drugs not being of standard quality." 29. Section 18 prohibits any person from manufacturing for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distributes any drug which is not of a standard quality, or is misbranded, adulterated or spurious. 30. Section 18(c) says that no person himself or by any other person on his behalf manufacture for sale or for distribution, or sale, or stock, or exhibit or offer for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a license issued for such purpose under this Chapter. 31. Section 21 of the Act, 1940 deals with Inspectors. The Inspectors can be appointed by the Central Government or a State Government by a notification in the Official Gazette having the prescribed qualifications and they may perform such duty for drugs or classes of drugs or cosmetics or classes of cosmetics and they shall be deemed to be a public servant within the meaning of Section 21 of the Code. 32. Section 22 of the Act, 1940 lays down the powers of Inspectors which reads as under:- "22. 32. Section 22 of the Act, 1940 lays down the powers of Inspectors which reads as under:- "22. Powers of Inspectors:- (1) Subject to the provisions of section 23 and of any rules made by the Central Government in this behalf, an Inspector may, within the local limits of the area for which he is appointed:- (a) Inspect:- (i) Any premises wherein any drug or cosmetic is being manufactured and the means employed for standardizing and testing the drug or cosmetic. (ii) Any premises wherein any drug or cosmetic is being sold, or stocked or exhibited or offered for sale, or distributed. (b) Take samples of any drug or cosmetic:- (i) Which is being manufactured or being sold or is stocked or exhibited or offered for sale, or is being distributed. (ii) From any person who is in the course of conveying, delivering or preparing to deliver such drug or cosmetic to purchaser or consignee. (c) At all reasonable times, with such assistance, if any, as he considers necessary:- (i) Search any person, who, he has reason to believe, has secreted about his person, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed. (ii) Enter and search any place in which he has reason to believe that an offence under this chapter has been, or is being, committed. (iii) Stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days or, unless the alleged offence is such that the defect may be removed by the possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or article by means of which the offence has been, or is being, committed or which may be employed for the commission of such offence. (cc) Examine any record, register, document or any material object found with any person, or in any place, vehicle, vessel or other conveyance referred to in clause (c) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder. (cca) require any person to produce any record, register, or other document relating to the manufacture for sale or for distribution, stocking, exhibition for sale, offer for sale or distribution of any drug or cosmetic in respect of which he has reason to believe that an offence under this Chapter has been, or is being, committed. (c) Exercise such other powers as may necessary for carrying out the purposes of this Chapter or any rules made thereunder. (2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be, apply to any search or seizure under this Chapter as they apply to any search or seizure made under the authority of a warrant issued under section 94 of the said Code. (2-A) Every record, register or other document seized under clause (cc) or produced under clause (cca) shall be returned to the person, from whom they were seized or who produced the same, within a period of twenty days of the date of such seizure or production, as the case may be, after copies thereof or extracts therefrom certified by that person, in such manner as may be prescribed, have been taken. (3) If any person wilfully obstructs an Inspector in the exercise of the powers conferred upon him by or under this Chapter or refuses to produce any record, register or other document when so required under clause (cca) of sub-section (1), he shall be punishable with imprisonment which may extend to three years, or with fine, or with both." 33. The Inspector has power to inspect any premises wherein any drug or cosmetic is being manufactured. He has the power for testing the drugs or cosmetics. He has also power to search and such other powers which are necessary for enforcement of the provisions of the Act, 1940. 34. The Inspector has power to inspect any premises wherein any drug or cosmetic is being manufactured. He has the power for testing the drugs or cosmetics. He has also power to search and such other powers which are necessary for enforcement of the provisions of the Act, 1940. 34. Section 22(c)(iii) empowers the Inspector to order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty one days, or, unless the alleged offence is such that the defect may be removed by possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or article by means of which the offence has been, or is being, committed or which may be employed for the commission of such offence. 35. Thus, it is apparent that power of Inspector to direct a person not to dispose of any stock of drug or cosmetic is limited to a maximum period of twenty one days and not beyond. 36. While carrying on a search and seizure in respect of drugs, the Inspectors are governed by the procedure prescribed under section 23. The detailed provisions made in section 23 of the Act, 1940 are set out below:- "23. Procedure of Inspectors:- (1) Where an Inspector takes any sample of a drug or cosmetic under this Chapter, he shall tender the fair price thereof and may acquire a written acknowledgement therefor. (2) Where the price tendered under sub-section (1) is refused, or where the Inspector seizes the stock of any drug or cosmetic under clause (c) of section 22, he shall tender a receipt therefore in the prescribed form. (3) Where an Inspector takes a sample of drug or cosmetic for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked. Provided that where the sample is taken from premises whereon the drug or cosmetic is being manufactured, it shall be necessary to divide the sample into three portions only: Provided further that where the drug or cosmetic is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug or cosmetic be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same and where necessary, sealing them. (4) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows:- (i) One portion or container he shall forthwith send to the Government Analyst for test or analysis. (ii) The second he shall produce to the Court before which proceedings, if any, are instituted in respect of the drug or cosmetic. (iii) The third, where taken, he shall send to the person, if any, whose name, address and other particulars have been disclosed under section 18-A. (5) Where an Inspector takes any action under clause (c) of section 22:- (a) He shall use all despatch in ascertaining whether or not the drug or cosmetic contravenes any of the provisions of section 18 and, if it is ascertained that the drug or cosmetic does not so contravene, forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized. (b) If he seizes the stock of the drug or cosmetic, he shall as soon as may be, inform a Judicial Magistrate and take his orders as to the custody thereof. (c) Without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possession of the drug or cosmetic, he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order under the said clause. (c) Without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possession of the drug or cosmetic, he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order under the said clause. (6) Where an Inspector seized any record, register, document or any other material object under clause (cc) of sub-section (1) of section 22, he shall, as soon as may be, inform a Judicial Magistrate and take his orders as to the custody thereof." 37. A reading of section 23 makes it clear that where an Inspector seizes any record, register, document or any other material object under clause (cc) of sub-section (1) of section 22, a duty is cast upon him to immediately inform the Judicial Magistrate and take his orders as to the custody thereof. 38. I further find that section 23(3) makes it clear that when an Inspector takes a sample of a drug or cosmetic for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and in the presence of such person shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked but if the said sample is taken from the premises whereon the drugs or cosmetics are being manufactured, it is necessary to divide the sample in three portions only. 39. Section 23(4) visualizes that one portion of the sample is to be sent to the government analyst for test or analysis, the second to be produced in court, if proceedings were to be initiated and the third to be sent to the person, if any, whose name and address have been disclosed under section 18-A. 40. Section 25 of the Act, 1940 deals with the reports of Government Analysts which reads as under:- "25. Reports of Government Analysts:- (1) The Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. Reports of Government Analysts:- (1) The Government Analyst to whom a sample of any drug or cosmetic has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form. (2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18-A and shall retain the third copy for use in any prosecution in respect of the sample. (3) Any documents purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address and other particulars have been disclosed under Section 18-A has, within 28 days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. (4) Unless the sample has already been tested or analysed in the Central Drugs Laboratories, where a person has under sub-seciton (3) notified his intention of adducing evidence in controversion of a Government Analyst’s report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of drug or cosmetic produced before the Magistrate under sub-section (4) of Section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein. (5) The cost of test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct.” 41. (5) The cost of test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct.” 41. As per sub-section (4) of section 25 unless the drug has been tested or analyzed in the Central Drugs Laboratory, a person is entitled to within twenty eight days of receipt of the report from Government Analyst to request the Magistrate to send for analysis the sample which is to be filed in court, to the Director, Central Drugs Laboratory. There are certain safeguards in the matter of reports of the Government Analysts. Section 25(2) itself provides that the Inspector on receipt of a copy of the report shall deliver a copy of the report to the person from whom the sample was taken and another copy to the person whose name, address and other particulars have been disclosed under section 18-A and shall retain the third copy of the report for prosecution. 42. Section 32 of the Act, 1940 deals with cognizance of offences which reads as under:- "32. Cognizance of offences – (1) No prosecution under this Chapter shall be instituted except by:- (a) An Inspector. (b) Any Gazetted Officer of the Central Government or a State Government authorized in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by the State Government. (c) The person aggrieved. (d) A recognized consumer association whether such person is a member of that association or not. (2) Save as otherwise provided in this Act, no Court inferior to that of a Court of Session shall try an offence punishable under this Chapter. (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter." 43. The word prosecution in criminal law has been defined in Blacks Online Legal Dictionary 2nd Edition as a criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime. 44. The word prosecution in criminal law has been defined in Blacks Online Legal Dictionary 2nd Edition as a criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime. 44. The word Criminal Prosecution has been defined in Blacks Law Dictionary as an action or proceeding instituted in a proper court on behalf of the public for the purpose of securing the conviction and punishment of one accused of crime. 45. The use of the words no prosecution under this Chapter shall be instituted except by an Inspector or any Gazetted Officer of the Central Government or a State Government or by the person aggrieved or by a recognized consumer association whether such person is a member of that association or not under section 32 of the Act, 1940, shall make it manifest that the case can be instituted only on a complaint by an Inspector or by such other persons as authorized thereunder before a competent court of law. 46. As provided under section 32 of the Act, 1940, police officers are excluded for the purpose of instituting prosecution. Special powers are conferred to the officers mentioned in section 32 of the Act, 1940 who can institute prosecution. Section 4 of the Cr. P.C. reads as under: "4. Trial of offences under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 47. The aforesaid section inter alia specifically provides that all offences under any other law shall be investigated, inquired into, tried or otherwise dealt with according to the Cr. P.C. but it shall be subject to any special enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. The aforesaid section inter alia specifically provides that all offences under any other law shall be investigated, inquired into, tried or otherwise dealt with according to the Cr. P.C. but it shall be subject to any special enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. It is nobody's case that any notification has been issued under section 32(b) of the Act, 1940 authorizing the officers (Gazetted) of the Police Department to initiate prosecution under the Act, 1940 and in absence of any General or Special order made in writing in this regard the police officers are not competent to institute prosecution into the offences under the Act, 1940. 48. As discussed, hereinabove, the Act, 1940 is a complete Code in itself with regard to manufacture, sale and distribution of drugs and cosmetics and contravention thereof. It has its own set of authorities which are authorized to conduct enquiry into the matter including search and seizure and/or launch prosecution in respect thereof. The Act, 1940 is a special statute making out special offence and providing for its enquiry and prosecution. In that view of the matter, in view of the provision of section 4(2) of the Cr. P.C. the procedure as prescribed in the special statute under the Act, 1940 will have to be followed in derogation to the procedure as prescribed under the Cr. P.C. Special authorities have been conferred on the Inspector under the Act, 1940 which authorities are not on the police officer. Under section 32 of the Act, 1940, no prosecution can be launched on the basis of a police report submitted under section 173(2) of the Cr. P.C. If no cognizance of the offence can be taken under the Act, 1940 on the basis of a police report, institution of the FIR under section 154 of the Cr. P.C. and investigation pursuant thereto under sections 156 and 157 of the Cr. P.C. would be impermissible. 49. It is an admitted position that the provisions under the Act, 1940 are mandatory. In fact, those provisions have been enacted with scrupulous care to see that the guilty cannot escape or avoid the rule of law. The consequences of the offences under the Act, 1940 are severe. Hence, those provisions need to be strictly complied with. 49. It is an admitted position that the provisions under the Act, 1940 are mandatory. In fact, those provisions have been enacted with scrupulous care to see that the guilty cannot escape or avoid the rule of law. The consequences of the offences under the Act, 1940 are severe. Hence, those provisions need to be strictly complied with. It is well known position of law that when the statute provides for doing something in a certain manner, it must be done in that manner only and all other modes of performance are forbidden in law. 50. In my view, merely by writing sections 406, 420 and 273 read with 34 of the Code in the formal FIR, the police cannot assume jurisdiction to investigate the case when on the face of allegations made in the FIR the ingredients of those offences are not attracted. Discussion of decided cases 51. In Chunilal Vallabhaji Gandhi (supra) relied upon by the learned counsel appearing for the State, the appellant therein was convicted by the Presidency Magistrate, Mulund, Bombay, of an offence under section 18(c) read with section 27 of the Act, 1940. The conviction and sentence recorded by the Magistrate was challenged in appeal before the Bombay High Court. In that case the Drug Inspector, on receipt of a complaint that the appellant was manufacturing drugs without obtaining a license under the Drugs Act; lodged a complaint with the Kandivli Police Station against the appellant for contravention of section 18(c) of the Drugs Act. The police investigated the case and submitted charge-sheet under sections 18(1)(a), 18(a)(iii) and 18(c) read with 27 of the Act, 1940 against the appellant, his son and his two daughters. With the charge-sheet was lodged in court a complaint addressed to Magistrate and signed by the Drug Inspector. The Presidency Magistrate, took cognizance of the offence and framed a charge against the appellant, his son and two daughters on the assumption that the offences were to be tried in the manner of a warrant case under the procedure prescribed by section 251A of the Criminal Procedure Code as amended by the Act 26 of 1955. After the evidence of the witnesses for the prosecution was recorded, the prosecutor appearing on behalf of the State applied that as the procedure followed by the Magistrate was inappropriate a new charge be framed against the accused. After the evidence of the witnesses for the prosecution was recorded, the prosecutor appearing on behalf of the State applied that as the procedure followed by the Magistrate was inappropriate a new charge be framed against the accused. The learned Magistrate acceded to the request. He held that the procedure prescribed by section 251A was inappropriate in view of the provision contained in section 32 of the Act, 1940. The learned Magistrate then considered the evidence led by the prosecution ignoring the charge which was initially framed, and held that, a prima facie case was made out against the appellant and that no case was made out against the other three accused. He, therefore, framed a fresh charge for the offence under Section 18 (c) read with section 27 of the Act, 1940 and proceeded to try the appellant and on conclusion of trial convicted him and sentenced to pay a fine of Rs. 250/- and in default of payment of fine to suffer simple imprisonment for one month. 52. In the appeal, it was argued before the Bombay High Court that the learned Magistrate had no jurisdiction to entertain the proceeding against the accused because it was not instituted by an Inspector under the Act, 1940. The Division Bench of the Court noticed that on the record also there was a complaint addressed to the presidency Magistrate, at Borivali, by the Drug Inspector appointed under Section 21 of the Act, 1940 complaining that the appellant had contravened the provisions of sections 18(a)(i), 18 (a) (iii) and 18(c) of the Act and had thereby rendered himself liable for punishment under section 27 of the Act. After noticing the aforesaid facts, the Division Bench of the Bombay High Court in para 5 held as under:- "5. It is true that the complaint was accompanied by a charge-sheet filed by the police, but, that charge-sheet may be regarded as superfluous. As a complaint was filed by an Inspector under the Drugs Act, the prosecution was competently entertained by the Presidency Magistrate and the fact that the complaint was accompanied by a charge-sheet under the signature of the Inspector of Police did not render the prosecution instituted as otherwise than by an Inspector." 53. Thus, I do not find that the aforesaid judgment is of any help to the prosecution. As a matter of fact, it supports the case of the petitioners. Thus, I do not find that the aforesaid judgment is of any help to the prosecution. As a matter of fact, it supports the case of the petitioners. The Division Bench has regarded the police report submitted under Section 173(2) Cr. P.C. to be superfluous and held that the Magistrate had rightly proceeded on the complaint made by the Drug Inspector. This clearly goes to show that the Division Bench was of the view that a prosecution under the Act, 1940 could not have been initiated on the basis of a police report submitted under Section 173(2) of the Code meaning thereby that the institution of the FIR pursuant to which the police submitted its report was legally not permissible. 54. In Hindustan Lever Ltd. vs. State of Bihar (supra) relied upon by the petitioners, a Bench of this court held in paragraph 8 as under:- "8. The second contention raised on behalf of the petitioner is that the police has no jurisdiction to investigate into the offences committed under the Act. In view of Section 32 of the Act it appears to have force. Section 32 of the Act provides that no prosecution shall be instituted for any offence under the Act except by a Drug Inspector or by the person aggrieved or by a recognized consumer association whether such person is a member of that association or not. It is evident that prosecution can be instituted by Drug Inspector or by any person aggrieved by filing complaint before a competent court. The police is not empowered to register any First Information Report and investigate the case so as to submit charge sheet under Section 173 of the Code of Criminal procedure. The learned counsel for the opposite party No. 2 has contended that sub-section (3) of Section 22 provides for punishment for three years as such the police shall be competent to investigate the case on the report of the Drug Inspector. It is difficult to accept this contention in view of the provision contained in Section 32 of the Act. In my opinion, the prosecution can be instituted by filing complaint by the Drug Inspector and the police has no jurisdiction to register a First Information Report and investigate into the offence under the Act. The investigation by the police in this case, therefore, is without jurisdiction and is liable to be quashed." 55. In my opinion, the prosecution can be instituted by filing complaint by the Drug Inspector and the police has no jurisdiction to register a First Information Report and investigate into the offence under the Act. The investigation by the police in this case, therefore, is without jurisdiction and is liable to be quashed." 55. I find that Om Prakash Sah vs. State of Bihar, Cr. Misc. No. 808 of 1998 was initially heard by a Single Judge of this court who doubted the correctness of the ratio laid down in the case of Hindustan Lever Ltd. vs. State of Bihar (supra) and, thus, referred the matter to a Division Bench for adjudication by order dated 22.1.1998 which reads as under:- "There is nothing in Section 32 of the Act to show that police shall not institute and investigate the case and it is only there under Section 32 of the Act that no prosecution under this Chapter shall be instituted except by an Inspector or by the person aggrieved or a recognized consumer association whether such person is a member of that association or not. In view of the wordings of Section 32 of the Act, in my opinion, this matter is required to be considered by a Division Bench. The case, therefore, is admitted for hearing by a Division Bench." 56. A Division Bench of this court after hearing the parties, by order dated 21.1.2011, answered the reference made by the learned Single Judge in the following terms:- "It is held that the criminal proceeding initiated for contravention of section 27 of the Act on the basis of an FIR instituted by the Officer-in-Charge of any police station is legally not maintainable. No criminal proceeding could have been initiated for any offence relating to contravention of any of the provisions mentioned under Chapter IV of the Act unless it has been initiated by the persons authorized under section 22 (sic 32)(1) of the Act. Under section 22 (sic 32) of the Act, the Drug Inspector, aggrieved person or a member of any association are authorized for filing a complaint case. Only on the basis of a legally instituted criminal proceeding, the criminal court is authorized to take cognizance and for prosecution of the accused. If it is not done, the entire criminal proceeding is bad, illegal and without jurisdiction. Such proceedings are liable to be quashed. Only on the basis of a legally instituted criminal proceeding, the criminal court is authorized to take cognizance and for prosecution of the accused. If it is not done, the entire criminal proceeding is bad, illegal and without jurisdiction. Such proceedings are liable to be quashed. This application is disposed of accordingly." 57. Thus, from the discussions made, hereinabove, and the law laid down by a Division Bench of this court, I am left with no option but to hold that the FIR and investigation by the police in Agamkuan P.S. Case No. 332 of 2012 dated 31.12.2012, are without jurisdiction. 58. As a result, the FIR of Agamkuan P.S. Case No. 332 of 2012 and all consequent proceedings including the investigation of the case by the police on the basis of the said FIR are quashed. This order, however, would not prevent the authorities in initiating a fresh proceeding in accordance with law since the present writ application has been allowed on mere technicalities. 59. The writ application stands allowed.