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2023 DIGILAW 189 (JHR)

Abhishek Kumar v. State of Jharkhand

2023-02-16

GAUTAM KUMAR CHOUDHARY

body2023
JUDGMENT : 1. The instant Cr.M.P. has been filed for quashing of the entire criminal proceeding including the order dated 11.08.2021 whereby charge has been framed against the petitioners under Sections 420, 188 and 120(B) of the Indian Penal Code, under Sections 27(b)(ii), 27(d) read with Section 18(C) of the Drugs and Cosmetics Act, 1940, under Section 53 of the Disaster Management Act, 2005 and under Section 7 of the Essential Commodities Act read with Drugs (Price Control) Order, 2013 in connection with Jagarnathpur P.S. Case No.156 of 2021 corresponding to Drug & Cosmetic Case No.08 of 2021 registered under Sections 420, 188 and 120(B) of the Indian Penal Code, under Sections 18(b), (c), 27(b)(ii), 27(d) of the Drugs and Cosmetics Act, 1940, under Sections 51/58 of the Disaster Management Act, 2005. 2. Drug Inspector is the informant of the case. Case of the prosecution is that on information regarding illegal sale/purchase of Remdisivir at Birsa Chowk, the informant along with the Police party conducted raid in which petitioner No.2 [Gulsan Kumar @ Aman Kumar] was apprehended in possession of six vials of Remdisivir and he disclosed that these injections were being black marketed at a higher price. Petitioner no.2 disclosed that his brother [petitioner no.1] was involved in the negotiation of the said sale. 3. After investigation, charge-sheet has been submitted and on the basis of which cognizance has been taken by the learned court below vide order dated 02.07.2021 and the charge has been framed vide order dated 11.08.2021 under Sections 420, 188 and 120(B) of the Indian Penal Code, under Sections 27(b)(ii), 27(d) read with Section 18(C) of the Drugs and Cosmetics Act, 1940, under Section 53 of the Disaster Management Act, 2005 and under Section 7 of the Essential Commodities Act read with Drugs (Price Control) Order, 2013. 4. The order framing charge is under-challenge in the instant Cr. M. P. mainly on the ground that under Section 32 of the Drugs and Cosmetics Act, the cognizance of the offence is barred until and unless the prosecution is instituted by an Inspector or the officer authorized under Section 32 of the Act. 5. 4. The order framing charge is under-challenge in the instant Cr. M. P. mainly on the ground that under Section 32 of the Drugs and Cosmetics Act, the cognizance of the offence is barred until and unless the prosecution is instituted by an Inspector or the officer authorized under Section 32 of the Act. 5. It is argued by learned counsel for the petitioners that the prosecution in this case has been launched on the basis of the investigation conducted by the Police and charge-sheet submitted which is not permissible in view of the ratio decided by the Hon’ble Supreme Court in the case of Union of India v. Ashok Kumar Sharma, (2021) 12 SCC 674 . 170.1. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of Cr. P.C., the police officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same. 170.2. There is no bar to the police officer, however, to investigate and prosecute the person where he has committed an offence, as stated under Section 32(3) of the Act i.e. if he has committed any cognizable offence under any other law. 6. The second line of argument is that there is nothing on record to show that Remdisivir injection has been declared as scheduled drug and is not under the Drugs and Cosmetics Act and, therefore, the prosecution will not lie. In this regard, reliance has been placed in the judgment reported in 2022 SCC Online P & H 2847. 7. It is further submitted that during investigation, the report of FSL was called for and in Para-91 of the case diary whereby it appears that said chemical/drug could not be examined at Ranchi FSL. 8. Learned APP for the State has vehemently opposed the prayer. It is submitted that on the basis of facts, the Police Report, cognizance has been taken and an official complaint was submitted by the Drug Inspector vide Letter dated 08.10.2021 on the basis of the Police report submitted in that case. On receipt of official complaint, the learned court below vide order dated 25.11.2021 noted that since cognizance has already been taken. Therefore, there cannot be a second cognizance. On receipt of official complaint, the learned court below vide order dated 25.11.2021 noted that since cognizance has already been taken. Therefore, there cannot be a second cognizance. Further, relying on the ratio decided in the judgment reported in 2008 (2) SCC 540 , both the cases were amalgamated. Any irregularity whatsoever has been cured by filing of the subsequent complaint and the case being amalgamated with the original cognizance order. In this regard, reliance has been placed in the judgment reported in wherein it has been held Jayant v. State of M.P., (2021) 2 SCC 670 that when an order is passed by the Magistrate for investigation to be made by the police under Section 156(3) of the Code, which the learned Magistrate did in the instant case, when such an order is made the police is obliged to investigate the case and submit a report under Section 173(2) of the Code. That thereafter the investigating officer is required to send report to the authorised officer and thereafter as envisaged under Section 22 of the MMDR Act the authorised officer as mentioned in Section 22 of the MMDR Act may file the complaint before the learned Magistrate along with the report submitted by the investigating officer and at that stage the question with respect to taking cognizance by the learned Magistrate would arise. 9. The allegations involve black marketing in life-saving injection of Remdisivir at the peak of the Covid-19 pandemic. Both the petitioners are named and specific allegations against them of being involved in the offence. The plea that police could not have investigated the offence under the Drugs and Cosmetics Act, has been answered in Ashok Kumar Sharma case (supra) wherein it has been stated that where the offences alleged also involve offences under other statutes, Police is not denuded of its power to investigate the offence. Here the case has been registered by the competent authority and since the allegations involve different provisions under other Acts, therefore this court is of the view that there is no illegality in investigation by the police. The other pleas are on disputed questions of fact, which cannot be looked into at this stage. Criminal miscellaneous petition stands dismissed.