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2022 DIGILAW 156 (JK)

Mohd. Iqbal Mir v. State of J&K

2022-04-08

SANJAY DHAR

body2022
JUDGEMENT/ORDER : 1. The petitioner has challenged the complaint filed by respondent No. 2 against him alleging commission of offences under Section 18(c) of Drugs and Cosmetics Act read with Rule 65(17) of Drugs and Cosmetics Rules as also the order dated 22nd June, 2013, passed by learned Judicial Magistrate, 1st Class, Pampore, whereby process has been issued against the petitioner. 2. The facts emerging from the record reveal that on 22.06.2013, respondent No. 2 filed a complaint against the petitioner as well as co-accused Jan Mohammad Mir and Bashir Ahmad Mir, before the Court of Judicial Magistrate, 1st Class, Pampore. In the said complaint it was alleged that, while conducting routine inspection of Pampore area on 19.12.2012, one medical shop under the name and style of M/S. Fair Price Medical Shop situated at SDH, Pampore, was found indulging in stocking, exhibiting for sale and selling drugs and medicines by way of retail. As per the complaint, Jan Mohammad Mir and Bashir Ahmad Mir are the partners of the aforesaid medical shop. On 08.01.2013, the premises of the shop was again inspected and drugs, bills and physician's sample (not for sale) were found on the shelves of the premises which were seized and, accordingly, permission for prosecution was obtained against Jan Mohammad Mir and Bashir Ahmad Mir. The complaint goes on to allege that the aforesaid two accused have committed an offence by contravening Section 18(c) of the Drugs and Cosmetics Act, 1940, by stocking, exhibiting for sale and selling the drugs and medicines without drug sale licence. 3. The learned Magistrate vide his order dated 22.06.2013, recorded his satisfaction that offences under Section 18(c) and Rule 67(17) of Drugs and Cosmetics Act/Rules, are, prima facie, made out against the accused including the petitioner and, accordingly, the process was issued against them. 4. The petitioner has contended that there is no allegation in the complaint against him nor there is any material annexed to the complaint that would show any involvement of the petitioner in the alleged offence. It is further contended that the learned Magistrate has taken cognizance of the offence and issued process against the petitioner without applying his mind, inasmuch as not even sanction for prosecution was granted against the petitioner. 5. I have heard learned counsel for the parties and perused the record of the case including the record of the trial court. 6. It is further contended that the learned Magistrate has taken cognizance of the offence and issued process against the petitioner without applying his mind, inasmuch as not even sanction for prosecution was granted against the petitioner. 5. I have heard learned counsel for the parties and perused the record of the case including the record of the trial court. 6. A perusal of the complaint reveals that there is no allegation contained in the complaint as against the petitioner herein. In the complaint it is clearly stated that the Fair Price Medical Shop that was inspected belongs to Jan Mohammad Mir and Bashir Ahmad Mir. The order granting permission for prosecution also pertains to only the aforesaid two accused and not to the petitioner. In the absence of any allegation against the petitioner in the complaint and in the absence of any material on record to even remotely suggest the involvement of the petitioner in the alleged offences, it cannot be stated that a case for proceeding against him is made out. Merely because the petitioner, as per certain documents on record, was working as a salesman does not mean that the offences are made out against him. It was the obligation of the owners of the shop to produce the licence before the concerned authorities and even as per the complaint it were the partners of the shop who were running the same without any valid drug licence. It is not the case of the complainant that the petitioner was running the shop. In the absence of any material on record against the petitioner in the complaint, no process could have been issued against him. 7. Issuance of process in a criminal case is a serious matter and a Magistrate before issuing process against a person in a criminal complaint has to apply his mind to the material on record and he is not expected to act mechanically. Once a process is issued in a criminal complaint against an accused, he is supposed to apply for grant of bail and on his failure, he can be remanded to custody. So, it is not like issuing a notice in a civil case but the consequences of issuing a process in a criminal case against an accused are serious. Once a process is issued in a criminal complaint against an accused, he is supposed to apply for grant of bail and on his failure, he can be remanded to custody. So, it is not like issuing a notice in a civil case but the consequences of issuing a process in a criminal case against an accused are serious. Therefore, before issuing a process in a criminal complaint against an accused, a criminal court has to apply its mind to the material on record and derive its satisfaction as to whether any offence is made out against a person against whom a process is being issued. In the instant case, the learned Magistrate, it seems, has mechanically issued the process against the petitioner without there being any allegation in the complaint against him and without there being any material on record suggesting his involvement in the alleged offence. 8. Apart from the above, the complaint, which is subject matter of the instant petition, is with regard to the commission of offence under Section 18(c) of the Drugs and Cosmetics Act, which falls under Chapter IV of the Act. Section 32 of the said Act, which also falls in Chapter IV of the Act, deals with cognizance of offences. It reads as under:- “32. Cognizance of offences- (1) No prosecution under this Chapter shall be instituted except by- (a) an Inspector; or (b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government or by a general or special order made in this behalf by that Government; or (c) the person aggrieved; or (d) a recognised 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. 9. From a bare perusal of the aforesaid provision, it clear that no Court inferior to that of a Court of Session can try an offence punishable under the aforesaid Chapter. 9. From a bare perusal of the aforesaid provision, it clear that no Court inferior to that of a Court of Session can try an offence punishable under the aforesaid Chapter. The amendment providing for trial by a Court of Session has been inserted vide Act 26 of 2008 and the same came into effect from 10.09.2009. In the instant case, the complaint has been filed on 22.06.2013. Therefore, the learned Magistrate had no jurisdiction to try the complaint in question but the record shows that he has not only taken cognizance of the offence but has proceeded to hold trial of the case. On this ground also, the proceedings against the petitioner in the impugned complaint are liable to be quashed. 10. For the foregoing reasons, this petition is allowed and the impugned complaint and the order issuing process, to the extent of petitioner, are quashed. 11. A copy of this order be sent to the learned Magistrate for information.