Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 2210 (HP)

Man Mohan Sharma v. State Of Himachal Pradesh

2018-12-13

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. (oral) - The petitioner has sought quashing of criminal complaint that has been filed against him under Sections 18(C) and 18-A of the Drugs and Cosmetics Act, 1940, which is pending in the Court of learned Judicial Magistrate Court No. 4, Una, H.P. by invoking section 482 of the Code of Criminal Procedure, 1973 (for short ''Code''). 2. The only ground seeking quashing of the complaint is that the complaint itself emanates out of FIR No. 249, dated 10.08.2013 that was registered against the petitioner under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act (for short the NDPS Act), in which the petitioner was ultimately acquitted by the learned Division Bench of this Court and said acquittal stands affrmed by the Hon''ble Supreme Court as the SLP filed against the acquittal was dismissed vide judgment dated 21.12.2015 and, thereafter, the present complaint on same facts even though under a different Act is not maintainable. 3. What appears from the record is that on the basis of the disclosure made by the petitioner in FIR No. 249 of 2013, the Drug Inspector alongwith SHO, P.S. Una and Health Staff visited the rented premises hired by the petitioner and recovered huge quantity of allopathic drugs, which was stored there without any valid drug licence and on the basis of the said recovery, the aforesaid complaint came to be filed. headed by SI Krishan Lal Berri was present at Una-Mehatpur Road near Railway Bridge, Shani Mandi, where they laid nakka and at about 10:30 a.m. one motorcycle, black in colour, bearing registration No. 20D-8788 came from Mehatpur side having bags on both handles of the motorcycle was stopped for checking. The motorcyle was being driven by the petitioner Man Mohan Sharma and on checking the bag was found to be containing drugs/injections viz. 18 bottles of Rexcof syrup, 9 Corex syrup, 20 tablets of Nitrazepam, 290 tablets of Alzolom, 780 tablets of Spas Parvon, 1560 tablets Spasmo Proxyvon Plus, 120 tablets of Spasmo Proxyvon, 120 tablets of Proxyvon, 190 tablets of Pantose and 360 injection, one strip each of Parvon Spas, Proxyvon, Spasmo Proxyvon Plus capsules and 10 injection Avil, 2 bottles of Rexcof syrup, one bottle corex and 10 tablets of Alprazolam. 5. 5. Thus, it is evidently clear that the prosecution launched in both these cases emanates not only out of two separate and distinct incidents but also arise under different Act i.e. ND & PS Act and Drugs and Cosmetics Act. 6. It needs to be mentioned that the object of the ND & PS Act is to prohibit use and/or import, export or dealing with such prohibited substances and, therefore, the legislature has specifically provided in Section 8 carving out the exception that in some cases, some substance could be utilized for medicinal purposes, then only to that extent, it would be permissible depending upon the compliance with safeguard. On the other hand, the object of the Drugs and Cosmetics Act is totally different, which provided for regulating the manufacturer and use of the drugs and cosmetics with regard to use of substance for the purpose of manufacture of the said drugs and safeguard which has to be adhered to. 7. The principles relating to exercise of jurisdiction under section 482 of the Code of Criminal Procedure, 1973 to quash complaints and criminal proceedings which are relevant for the present purpose are: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out th case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as and when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed of, is not by itself a ground to quash the criminal proceedings. 8. The case of the petitioner is not covered under any of the aforesaid principles, therefore, the mere fact that the petitioner has been acquitted of the offence under the ND & PS Act cannot be a ground to seek quashing of the criminal complaint which, as mentioned above, emanates from an entirely different incident under a different Act. 9. The instant petition is clearly misconceived and is, therefore, dismissed as such.