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2014 DIGILAW 18 (JHR)

Arun Kumar v. State of Jharkhand

2014-01-06

H.C.MISHRA

body2014
ORDER H.C. Mishra, J.: Heard learned counsel for the petitioner and the learned counsel for the State. 2. The petitioner is aggrieved by the order dated 16.05.2013 passed by the learned Sessions Judge, Bokaro, in S.T. No. 159 of 2013, whereby the petition filed by the petitioner for discharge under section 227 of the Cr.P.C., has been rejected by the learned Sessions Judge. Though in the facts of the case, the learned Sessions Judge held that prima-facie no offence was made out against the petitioner under section 420 of the Indian Penal Code, but it has been held that there were sufficient materials against the petitioner for framing the charge under section 28-B of the Drugs and Cosmetics Act, 1940, (hereinafter referred to as the ‘Act’). Aggrieved by the said order the petitioner has preferred this revision application in this Court. 3. The facts of this case lie in a short compass. A written information was given by one Santosh Kumar Das to the Officer-in-Charge of Sector-IV Police Station, Bokaro Steel City, informing that he had taken one unit of blood after giving his own blood, from the blood bank situated at Sector-IV, Plot No. G.C.-18, City Centre, Bokaro. The blood was required by him for the treatment of his mother. Subsequently, the informant learnt that the said blood bank was being run without any license, and accordingly, he gave the written information before the police, on the basis of which Sector-IV, P.S. Case No. 143 of 2012 was instituted for the offences under section 420 of the Indian Penal Code and Section 28-B of the Drugs and Cosmetics Act. After investigation the police submitted the charge-sheet against the petitioner, being the owner of the said blood bank, and the cognizance of the offence was taken accordingly. The petitioner filed his application for discharge under section 227 of the Cr.P.C., which was rejected as aforementioned. 4. The main ground taken by the petitioner in this revision application is that ‘blood’ does not come within the preview of the Drugs and Cosmetics Act. However, in course of arguments this ground was given up by the learned counsel for the petitioner. Even otherwise, the ‘Schedule–F’ in ‘Part XII-B’ of the Rules lays down the “Requirements for the functioning and operation of a blood bank and/or for preparation of blood components” under the provisions of Rule 78 of the said Rules. However, in course of arguments this ground was given up by the learned counsel for the petitioner. Even otherwise, the ‘Schedule–F’ in ‘Part XII-B’ of the Rules lays down the “Requirements for the functioning and operation of a blood bank and/or for preparation of blood components” under the provisions of Rule 78 of the said Rules. In Common Cause Vs. Union of India and Ors., reported in (1996) 1 SCC 753 , it has been pointed out by the Apex Court as follows:- “3. For the purpose of regulating its collection, storage and supply, blood is treated as a ‘drug’ under the Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act’). In the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as ‘the Rules’) made under the Act, provisions regarding equipment and supplies required for a blood bank were contained in Part XII-B, which was inserted vide notification dated 24-6-1967. --------------------- .” 5. Having given up the said ground, learned counsel for the petitioner has submitted that the prosecution launched against the petitioner under section 28-B of the Act is absolutely illegal and the same cannot be sustained, in view of Section 32 of the Act, as no prosecution could be launched under the Act on the basis of a police report. It is submitted by the learned counsel for the petitioner that the prosecution could be launched under this Section only on the basis of a complaint filed in the competent Court, by the persons authorised under this section, and the police had no jurisdiction to register the F.I.R., or to investigate into the offence under the said Act. In support of his contention, learned counsel has placed reliance upon the decision of Patna High Court in Hindustan Lever Ltd. Vs. State of Bihar, reported in (1997) 1 BLJ 899 , wherein it has been laid down as follows:- “8. The second contention raised on behalf of the petitioner is that the police has no jurisdiction to investigate into the offence committed under the Act. In view of Sec. 32 of the Act it appears to have force. Sec. 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. In view of Sec. 32 of the Act it appears to have force. Sec. 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 the 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 provisions 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 police in this case, therefore, is without jurisdiction and is liable to be quashed.” (Emphasis supplied). 6. It is pointed out that the said decision has been followed by the Patna High Court, yet again in an unreported decision in Lalan Singh @ Mohan Singh Vs. The State of Bihar, disposed of by order dated 21.8.2013 in Cr. Misc. No. 38552 of 2012, wherein also, it has been held as follows:- “Learned counsel for the petitioner submits that the police has no jurisdiction either to institute a case or investigate the same in view of the provisions laid down under section 32 of the Act. In this connection reliance has been placed on the decision of this Court in the case of Hindustan Lever Limited Vs. State of Bihar and others reported in 1997 B.L.J., 899 wherein it has been held that the prosecution can be instituted by a Drug Inspector or by any person aggrieved by filing complaint before a competent court. The police is not empowered to register any F.I.R. and investigate the case so as to submit charge sheet under section 173 Cr.P.C.” 7. The police is not empowered to register any F.I.R. and investigate the case so as to submit charge sheet under section 173 Cr.P.C.” 7. Placing reliance on these two decisions, learned counsel has submitted that the prosecution launched against the petitioner on the basis of the F.I.R. lodged before the police and on the basis of the charge sheet submitted by the police, cannot be sustained in the eyes of law. 8. Learned counsel for the State on the other hand, has submitted that there is no illegality in the impugned order, in as much as, in the present case the prosecution has been launched against the petitioner by a person aggrieved, and this is fully covered by Section 32(1)(c) of the Act. Learned counsel has submitted that there is no illegality and/or irregularity in the impugned order, worth interference in the revisional jurisdiction. 9. After having heard learned counsels for both the sides and upon going through the record, I find that the prosecution in this case has been launched on the basis of a written information given before the police by a person, who had taken the blood from the blood bank of the petitioner for the treatment of his mother. Accordingly, the informant is the person aggrieved in this case, if the blood bank was being run without proper license. The impugned order shows that upon investigation it was found that the blood bank was being run by the petitioner under license No. JH/B.B./11/05 dated 02.06.2005 to 01.06.2010 and for renewal of the license, application was submitted before the appropriate authority, who had rejected the application on the ground that the petitioner was not the licensee, rather the licensee was one Dr. Manoj Kumar Srivastava, who had not applied for the renewal of the license. The said order was however, challenged by the petitioner in the Court, but the matter was still pending, as it appears, without there being any interim order in favour of the petitioner. The fact however, remains that on the date of supplying blood to the informant, the blood bank was being run by the petitioner without any proper license. 10. Section 32 of the Drugs and Cosmetics Act 1940 reads as follows:- “32. The fact however, remains that on the date of supplying blood to the informant, the blood bank was being run by the petitioner without any proper license. 10. Section 32 of the Drugs and Cosmetics Act 1940 reads as follows:- “32. Cognizance of offences.- (1) No prosecution under this Chapter shall be instituted except by - (a) an Inspector; or (b) any gazette 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 that Government; or (c) the persons aggrieved; or (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 any 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.” 11. From the plain reading of this Section it is apparent that there is nothing in this provision to show that the prosecution can only be launched by filing the complaint petition before the competent Court and not otherwise. Section 28-B of the Act prescribes for the penalty for manufacture, sale or distribution of any drug or cosmetic in contravention of the provisions of any notification issued under section 26-A of the Act. Section 26-A of the Act empowers the Central Government to regulate, restrict or prohibit the manufacture, sale or distribution of any such drug or cosmetic, which is likely to involve any risk to human beings or animal etc., by issuing notification in the official gazette. Rule 78 of the Rules prescribes for conditions of license and ‘Schedule-F’ in ‘Part XII-B’ of the Rules framed thereunder, lays down for the ‘requirements for the functioning and operation of a blood bank ------’. Thus it is apparent that once the petitioner was found to run the blood bank without any proper license, the prima-facie offence is made out against the petitioner under section 28-B of the Act. Thus it is apparent that once the petitioner was found to run the blood bank without any proper license, the prima-facie offence is made out against the petitioner under section 28-B of the Act. There may be some circumstances in which the analysis of the drug or cosmetics by the Government Analysts may be required and the prosecution can be based only on the basis of the report of the Government Analysts, but in the present case there is no such requirement of any analysis by the Government Analysts, as the case against the petitioner is that he was running the blood bank without having the proper license under the Act. 12. This brings us to the rulings of the Patna High Court relied upon by the learned counsel for the petitioner, laying down that the police has no jurisdiction to register a First Information Report and investigate into the offence under the Act, and the investigation by police is without jurisdiction and is liable to be quashed, and the prosecution can only be launched on the basis of the complaint petition filed before the competent Court. I do not find anything in Section 32 of the Act prescribing the same. This section nowhere prescribes that the prosecution can be instituted under the Act only on the basis of the complaint filed before the competent Court. When the legislature intends to prescribe that the prosecution can be instituted only on the basis of the complaint, it clearly prescribes the same in the Act. For instance, Section 142 of the Negotiable Instruments Act, 1881, clearly prescribes as follows:- “142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-(a)no Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; *** *** *** ” There are similar such provisions in the other Acts also, such as Section 55 of the Wild Life (Protection) Act, 1972, Section 19 of the Environment (Protection) Act, 1986, and other such legislations. 13. 13. In the decisions of the Patna High Court cited by the learned counsel for the petitioner and quoted above, no reasoning has been given for coming to the conclusion that the prosecution can be instituted under the Act only by filing complaint and the police has no jurisdiction to register a First Information Report and investigate into the offence under the Act, and the investigation by police is without jurisdiction and is liable to be quashed. Without giving any reasoning, the law has been laid down by the Patna High Court. With all due respects, I find myself unable to follow the ratio laid down by the Patna High Court, and in my considered view, both the aforementioned decisions cannot form binding precedents, there being no reason in those decisions for coming to the ratio laid down therein. Though it is true that most of the prosecutions are launched under the Act by filing complaint, as they are generally concerned with the standard of drugs or cosmetics, and they are based on the report of the Government Analysts as required under section 23 read with section 25 of the Act, but in the present case, where there is no allegation that the blood sample was spurious or substandard, rather the only allegation against the petitioner is that the blood bank was being run without any license, there is no requirement of any report of the Government Analysts, and accordingly, there is nothing in Section 32 of the Act, which cannot be followed on the basis of the charge-sheet submitted by the police, pursuant to the FIR lodged before the police and on the basis of the investigation made by the police. In Chimanlal Jagjivandas Sheth Vs. State of Maharastra, reported in 1963 Supp. (1) SCR 344, wherein where, the raid was conducted by the police Sub-Inspector accompanied by the Drug Inspector and the prosecution was launched on the basis of the same, the conviction of the appellant was maintained up to the Supreme Court. This decision is not being referred to, bring a precedent on the point, rather only as an instance to show that the prosecution under the Act was launched on the basis of the police action and the conviction was maintained up to the Apex Court. 14. This decision is not being referred to, bring a precedent on the point, rather only as an instance to show that the prosecution under the Act was launched on the basis of the police action and the conviction was maintained up to the Apex Court. 14. Section 32(1)(c) clearly prescribes that the prosecution under this chapter can be instituted by a person aggrieved, and in the present case prosecution has been launched by a person who had taken the blood from the blood bank of the petitioner for the treatment of his mother, and he is certainly the person aggrieved and comes within the purview of Section 32(1)(c) of the Act. 15. In view of the aforementioned discussions, I find and hold that there is no bar under Section 32 of the Act against launching the prosecution on the basis of the FIR lodged before the police, or on the basis of the investigations made and charge-sheet submitted by the police, and in appropriate cases the said recourse may always be taken to. Accordingly, I do not find any force in the submissions of the learned counsel for the petitioner that the prosecution of the petitioner under the Act is absolutely bad in the eyes of law and vitiated. 16. For the foregoing reasons, I do not find any illegality and/or irregularity in the impugned order passed by the Court below, worth interference in the revisional jurisdiction. There is no merit in this application and the same is accordingly, dismissed. 17. The Trial Court below is directed to proceed with the trial in accordance with law forthwith. Let this order be communicated to the Court concerned through FAX.