Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 578 (JK)

Drugs Inspector Zone-II v. H. R. Corporation

2016-11-07

TASHI RABSTAN

body2016
JUDGMENT : TASHI RABSTAN, J. 1. Quashment of order dated 07.05.2016 passed by the learned Chief Judicial Magistrate, Jammu, (for brevity "Trial Magistrate") whereby applications filed by respondents 1 to 3 herein, came to be allowed with a direction to petitioner herein to release the seized drugs subject to furnishing of undertaking that they shall not sell the said drugs to any person other than the license holder after taking permission from the trial Court, is craved. The case set up by petitioners in the petition on hand is that Police Station Bakshi Nagar, Jammu, arrested four persons along with large quantity of drugs and medical devices belonging to three firms (respondents 1 to 3) Petitioner, it is averred, in exercise of powers under Section 22 of the Drugs and Cosmetics Act, 1940, directed respondent-firms to submit the sale and purchase record on spot, but they failed to do so, as such, petitioner seized whole stock of drugs and medical devices. It is stated that respondent-firms filed applications before learned Trial Magistrate for release of seized drugs and medical devices. Trial Magistrate vide common order dated 07.05.2016, impugned herein, allowed applications directing petitioner to release seized material. Dissatisfied thereof, petitioner has come up with instant petition under Section 561-A Cr.P.C. 2. Contention of learned counsel for petitioner is that these firms were required to sell their drugs and medical devices through retail drug licensees whereas they were selling the same directly to patients. His further contention is that under Section 23(5) of the Drugs and Cosmetics Act, 1940, a Judicial Magistrate does not have any jurisdiction or power to release the stock of drugs seized by the Drugs Inspector; rather such powers are vested with the Drugs Inspector. Learned counsel contends that Trial Magistrate has erred in passing order impugned for release of seized drugs by taking note of Section 523 of the J&K Code of Criminal Procedure, which provides for disposal of property during pendency of investigation. It is averred that since the Drugs Inspector was investigating the matter and not the police, therefore, this section does not apply to instant case. Lastly, it is contended that under the provisions of Criminal Jurisprudence, Trial Court cannot review its own order dated 21.04.2016 by virtue of which petitioner was directed to retain seized drugs till conclusion of inquiry/investigation. 3. Lastly, it is contended that under the provisions of Criminal Jurisprudence, Trial Court cannot review its own order dated 21.04.2016 by virtue of which petitioner was directed to retain seized drugs till conclusion of inquiry/investigation. 3. Learned senior counsel appearing on behalf of respondent No. 1 states that respondent No. 1 is a registered firm and has been selling drugs according to rules made under the Drugs and Cosmetic Act. His further contention is that in absence of any provision in the Drugs and Cosmetic Act for release of seized drugs, learned Magistrate has rightly directed for release of seized material while applying general provision of Section 523 of the Code of Criminal Procedure. 4. Learned counsel appearing for respondents 2 & 3 submits that respondents 2 & 3 are the license holders under the Drugs and Cosmetic Act and had purchased seized items after making all legal requirements and against proper invoices. Further, it is contended that the seized stunts are going to expire in October, 2016 and November, 2016, whereas seized pulse generators do not fall within the definition of drug. 5. Heard learned counsel appearing for the parties and perused the file. 6. While assailing the order of learned Trial Magistrate, the sole contention of learned counsel for petitioner is that in terms of the Drugs and Cosmetics Act, 1940, a Judicial Magistrate does not have any jurisdiction or power to release the stock of drugs seized by the Drugs Inspector. 7. Thus, the only question arises for consideration is: "whether a Judicial Magistrate has power to direct for release of drugs seized under the Drugs and Cosmetics Act, 1940 or not." 8. While making the release order, the trial magistrate was of the view that "from the perusal of the whole Act, I could not find any specific provision whereby Drugs or any other document seized by the Drug Inspector can be released by the order of the Court. It is a settled proposition of law that where a specific provision is missing in the special legislation in that event the general provision i.e. the code of criminal procedure shall apply. Therefore, under these circumstances we have to resort to the provisions of Section 523 of J&K Cr.P.C. for the purpose of disposal of property during the pendency of investigation by the investigating agency." 9. Therefore, under these circumstances we have to resort to the provisions of Section 523 of J&K Cr.P.C. for the purpose of disposal of property during the pendency of investigation by the investigating agency." 9. I have gone through the provisions of Drugs and Cosmetics Act, 1940. As per Section 22 (c) (iii), the powers of the Inspector under this Act is limited to direct the person not to dispose of the confiscated drug or cosmetic for a specified period not exceeding twenty days. It would be relevant to reproduce said section hereunder: "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, (b).............. (c) (i) (ii) (c)(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." 10. What emerges from above provision is that there are limited powers with the Inspector under Drugs and Cosmetics Act, 1940. Moreover, the provisions of this Act are to be read in addition to the existing laws and not in isolation. What emerges from above provision is that there are limited powers with the Inspector under Drugs and Cosmetics Act, 1940. Moreover, the provisions of this Act are to be read in addition to the existing laws and not in isolation. Hence, the provisions of Section 523 of J&K Cr.P.C. clearly apply in this matter, which provide that "the seizure by any police officer of property taken under section 51, or alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof or if such person cannot be ascertained respecting the custody and production of such property." Even in the present case the concerned Inspector did not search or seized the drugs-in-question, rather it was Police Station Bakshi Nagar that seized the drugs-in-question and arrested alleged accused. Otherwise too, the inherent powers under Section 561-A Cr.P.C. ought to be exercised by the High Court and the proceedings ought to be quashed only in such cases where the complaints do not constitute any offence or the same are frivolous, vexatious or oppressive. In view of the above, I do not find any merit in the petition and the same is, accordingly, dismissed along with connected Cr. M.A(s), if any.