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2023 DIGILAW 284 (UTT)

Kanika v. State of Uttarakhand

2023-05-01

SHARAD KUMAR SHARMA

body2023
JUDGMENT : Sharad Kumar Sharma, J. An FIR being FIR No.303 of 2021, stood registered against the present applicant, for her alleged involvement in the commission of the offences under sections 420, 120-B, 274, 275 and 276 of IPC, as well as under sections 17, 17(a), 17(b), 18A, and 27 of the Indian Drugs and Cosmetic Act, 1940 (in short hereinafter referred to as “Act”). Ultimately, the proceedings drawn thereof on the basis of the said FIR has reached the stage of session trial being Session Trial No.36 of 2021, “State Vs. Kanika”, and the same is being presently tried by the court of 2nd Additional District Judge. As far as this Court is concerned, we are not at all concerned with the proceedings of the sessions trial, which is being taken against the present applicant. 2. It is not in dispute between the parties that the subsequent complaint proceedings, which have been registered by the respondent no.2, in fact, it happens to be for the identical set of events, which has been already the subject matter of the FIR No.303 of 2021, on the basis of which the session trial is already pending consideration. 3. It has been argued by the learned counsel for the applicants, that the attempt of the respondent to register a complaint on 02.03.2022, in fact, had been with the clever intent to make the offence under sections 17, 17A, 17B, 18, 18A,18B, 27, 28 and 28A of the Act, to be tried by a way of the complaint case, which otherwise, couldn’t have been registered, as the State case, and that is why, it is as an afterthought, that a complaint has been registered on 02.03.2022. 4. 4. On the contrary, it has been argued by the learned Government Advocate, that the registration of the subsequent complaint case in relation to the same offences, would not be barred in view of the fact, that under section 32 of the Act, the cognizance of the offences though could have been made by the authorities, which has been given, therein, and it is argued by the learned counsel, that in order to override the embargo created by section 32 of the Act, the present complaint proceedings have been registered by the respondent no.2, against the present applicant, which has been attempted to be argued to the contrary by the learned Government Advocate, by referring to the provisions contained under section 210 of CrPC, contending thereof, that the registration of the complaint case will not at all prejudice the rights of the present applicant for the reason being, that even subsequent to the registration of the complaint case, all her defences would still be available to be protected by virtue of the provisions contained under section 210 of CrPC, where it provides that there is a complaint case, and police has held investigation in respect of the same offences, they are to be clubbed together and tried by the Court. 5. In order to carve out a case, learned counsel for the applicant has submitted, that if the complaint itself is taken into consideration, he submits that the complaint would be defective for the reason being that, as per the provisions contained under Rule 55 to 58A, it has been provided that no proceedings could have been drawn as against the applicant or any other such accused person, until and unless, the procedure prescribed, therein, is strictly followed by the Inspector by taking of the stock register, preparation of the documents, and other material objects, which are collected in compliance of the provisions contained under sub-clause (c) of sub- clause (cc) of sub-section (1) of section 22 of the Act. 6. 6. It has been argued by the learned counsel for the applicant that there is absolutely a non compliance of the provisions contained under the Rules, and hence as such the proceedings initiated by way of a complaint case, would be bad in the eyes of law, and particularly, the learned counsel for the applicant has referred to Form 16, which has been framed under Rule 55 and 145B, which provides the details of the receipt of the stock, and the manner in which the object, which has been seized has to be recorded in the records in the light of the aforesaid provisions contained under section 21, as mentioned above. 7. In support of his contention, learned counsel for the applicant has submitted that, if the contents of paragraph no.10, of the complaint itself is taken into consideration, it has been specifically observed in the complaint itself that Form 16, could not be prepared because, the article which was, thus, recovered, was of such a small quantity that Form 16, couldn’t have been prepared, as such, he contends that until and unless Form 16, is prepared as per Rule 55 to be read with section 22 of the Act, the entire proceedings would be vitiated. 8. But in the complaint itself is taken into considerations, and if the observation, which has been made after paragraph no.16, the document, which has been taken on record, and has been considered at the stage, when the complaint was registered on 02.03.2022, it contained the charge, the recovery memo and Form 16. The sealing of the aforesaid confiscated material, which the learned counsel for the applicant submits that the observations made in Form 16, in the concluding of paragraph no.16, of the complaint itself runs contrary to the pleadings raised in the paragraph no.10, and in that event, non compliance of section 22 to be read with Rule 55, would be bad in law because until and unless, the Form 16, is prepared in accordance with the Rules, the entire proceedings of the complaint case would be vitiated. 9. 9. In answer to the argument extended by the learned counsel for the applicant an addition was made by the learned counsel for the State, that non preparation of Form 16, will not be so fatal in drawing the proceedings against the present applicant for the provisions contained under the Act, for the said purpose, he submits that the preparation of the Form 16, will not be a mandatory condition because as per the judgment rendered and reported in 1974 ALJ 606, “State of U.P. Vs. Ram Bharosey”. It has been observed, that once on the basis of the report of the Inspector, who has obtained the sample, if it is sufficiently established the compliance of the provisions pertaining to the collection of the sample, it was not necessary for him to comply with the provisions contained under section 22 (1) (c), for the purposes of preparation of the Form 16. 10. The aforesaid argument is being attempted to be distinguished by the learned counsel for the applicant, that the said necessity of the preparation of the form 16, since it was introduced by the subsequent amendment, subsequent to the judgment as reported in 1975, in the matters of Ram Bharosey (Supra), would not be applicable herein. 11. In order to answer the aforesaid argument, the provisions contained under section 22 of the Act, itself is required to be considered by this Court, because if the provisions contained under section 22 (1) (c), is taken into consideration, that itself contemplates the preparation of the Form 16, though the insertion, which has been sought to be argued by the counsel for the applicant as incorporated by insertion of section CC to sub-section (1) of section 22, it is only related to examining the records, register the documents and other materials object found, as referred to therein, but it didn’t had any relation to thereof for the purposes of preparation of the Form 16, as it has been argued by the learned counsel for the applicant, because the mandatory provisions for preparation of the Form 15 would itself constitute as to be the part of the principal provision as it existed under sub-section (c) of sub-section (1) of section 22 of the Act. 12. 12. The subsequent amendment made by way of the insertion made with effect from 16.03.1961, since it constituted to be in the principal provisions pertaining to the grant of the powers to the Inspector under section 22 of the Act, any amendment, which has been attempted to be argued by the learned counsel for the applicant in the context of the preparation of Form 16, which has been incorporated after the amendment of 1977, it will have no bearing because the preparation of the Form 16, in pursuance to the incorporation made in the Rules of 1977, it will have no adverse effect until and unless the principal provisions contained under section 22 itself is amended after the amendment being carried in the Rules of 1977. 13. Even otherwise also, since the argument of the learned counsel for the State is that, institution of the complaint proceedings is not absolutely barred, in fact by virtue of the implication of the Section 210 CrPC, the interest of the present applicant would still stand safeguarded, because as soon as the complaint proceedings registered in relation to the same set of offence, the procedure which is contemplated under section 210 of CrPC is to be followed, whereby the complaint is to be tried, as a police investigation in respect of the same offences, which is instituted otherwise on the police report. 14. In fact, this Court is of the view, that the articulative reason for putting a challenge to the complaint case, by the present applicant by preferring the present C482 application by endeavoring to call upon the court to appreciate the effect of the Rules and the effect of the non preparation of the Form 16, apart from the fact that it is not absolute bar, but still, it will entail a consideration of an evidence and an appreciation of the evidence too, which may not be a subject matter falling within the ambit of Section 482 of CrPC. 15. 15. This Court is of the view, that putting a challenge to the complaint, in fact, it has been made by the applicant in order to override the effect that whether the offences under the Act could be tried at all by way of sessions court, which he argues, that it has been attempted to be patched up by the respondent no.2, by filing the complaint on 02.03.2022, because it is argued by the learned counsel for the applicant, that the stage after having visualized, that they may not be succeeding in the session trial, so far it relates to the offences under the Act, the complaint has been registered as a subsequent thought. 16. All defences so far it relates to the present applicant with regards to the implications of the Rules in the context of the provisions contained under section 22 of the Act, which has to be read in harmony under the provisions contained under section 210 of CrPC, would be based on a factual appreciation which is still open for him to be argued after the clubbing together of the complained and state case under section 210 of CrPC to be tried by the Court and no prejudice as such, is caused to the present applicant, merely because of the registration of the subsequent independent complaint case, as such. Hence, all the issues pertaining to the effect of Rule 54 onwards, so far it relates to the non compliance of the preparation of Form 16, which too from the complaint itself, seems to be there being certain contradiction in the pleadings, would be an aspect to be considered by the court at the time when the cognizance is taken to the complaint proceedings. 17. In view of the aforesaid reasons, this Court is not inclined to interfere in the C482 application. The C482 application is accordingly dismissed.