Drugs and cosmetics act
Santosh S. Avhad
(Querist) 20 November 2012
This query is : Resolved
Drug Inspector had filed a complaint before the JMFC against the company for the offence punishable U/sec 420 of IPC and 17C(b) rule 148 of Drugs and cosmetics act. court has taken a cognizance of the offence.pls advice 1)can durg inspector add the section 420 of IPC with section of Drugs and cosmetics act.? any judgement pls forward.
2)Can drug inspector amend his complaint, which was filed before the court and court has take the cognizance?
ajay sethi
(Expert) 20 November 2012
yes he can file complaint under section 420 of IPC and Drugs and cosmetc act
ajay sethi
(Expert) 20 November 2012
Patna High Court - Orders
Shesh Narayan Singh vs State Of Bihar & Anr on 5 November, 2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.20018 of 2010
====================================================== Shesh Narayan Singh, son of Ram Raghubar Prasad, resident of Village- Kaumhrarchak, P.S. Agamkuan, District- Patna
.... .... Petitioner
Versus
1. The State Of Bihar
2. Ashok Kumar Yadav, son of Shambhu Prasad Yadav, Drug and Cosmetic Inspector, New Gardiner Campus Hospital, Patna-1 .... .... Opposite Parties.
====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
C.A.V. ORDER
6 05-11-2012 The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 11.12.2009 passed by the learned Judicial Magistrate, 1st Class, Patna City in Agamkuan P.S. Case No.234 of 2009, whereby the learned Magistrate has taken cognizance of offence under Sections 420/468/34 of the Indian Penal Code and 17B, 18(a)(i), 18 (c) of Sections 27(a)/27(b) (ii) and 28/27 (c) of the Drugs & Cosmetics Act,1940 (hereinafter referred to as the "Act").
Short fact of the case is that on 13.10.2009, the Drug Inspector, Patna submitted a written report before the Officer Incharge of Agamkuan Police Station regarding violation of provisions contained in Section 17B, 18(a) (ii), 18(c) and 18A of the Act. It was disclosed in the written report that as per direction of the State Drug Controller, Bihar, Patna, a raid was conducted by a raiding party in the house of the petitioner. It was found on search that two persons, namely, Naresh Rai and Md. Mumtaz were sticking label on the bottles of the medicine. The medicine, namely, Xylocaine 2 % 30 ml, Terramycine injectable solution (Vet) 30 ml. Vials. In the said raid, two drums of 20 Kg containing yellow water in one of the Patna High Court Cr.Misc. No.20018 of 2010 (6) dt.05-11-2012 2/ 5
drums and plain water in another drum were also found. Packed 350 tubes of 21 gm with upper Cartoon etc. were recovered and, as such, a seizure list was prepared. The petitioner, who was owner of the house, was also examined and two persons along with the petitioner were taken in custody. On the basis of the said report, an F.I.R. vide Agamkuan P.S. Case No. 234 of 2009 was registered on 13.10.2009 for the offence under Sections 420/468/34 of the Indian Penal Code and Sections 17B, 18(a)(i), 18(c) of the Drugs & Cosmetics Act,1940 and 27(a), 27(b)(ii) and 28, 27(c) of the Act. After investigation, chargesheet was submitted and thereafter by the impugned order, the learned Magistrate took cognizance of offences, as indicated above. Aggrieved with the order of cognizance, the petitioner has approached this Court by filing the present petition. Sri Bindhyakeshri Kumar, learned Senior Counsel, who was assisted by Sri Rajnikant Singh, learned counsel for the petitioner, has argued that for the offences under the provisions of the Drugs & Cosmetics Act, only the Drug Inspector was competent to file a complaint. For such offences, the police was not having any authority to register F.I.R. or investigate the case. In support of his argument, he has relied on a Single Bench Judgment of this Court, reported in 1997(1) BLJ 899; Hindustan Lever Ltd. Vs. State of Bihar & Ors. He submits that in view of Section 32 of the Act, the police was not having any authority to register F.I.R. and investigate the case as well as submit report in the present case. As per Section 32(1) of the Act, the prosecution was to be launched by the Drug Inspector and not by the police officer. He has further argued that the premises i.e. one room, from where recovery was made , was let out to one Binod Kumar only two days before the date of occurrence and the said premises was taken on rent by Binod Patna High Court Cr.Misc. No.20018 of 2010 (6) dt.05-11-2012 3/ 5
Kumar. Learned Senior Counsel has tried to persuade the Court that for such tenancy, an agreement was also executed in between the father of the petitioner and tenant Binod Kumar. He has referred to Annexure-2 to the petition, which is a Photostat copy of the lease agreement dated 12.10.2009. He submits that even immediately on search, two persons, who were arrested on an allegation of labelling of sticker on the bottles of the medicine, had disclosed that they were hired by Binod Kumar. They also disclosed that they were working as labourer. It has further been submitted that other tenant of the petitioner had also made statement before the Investigating Officer that the room in question was taken on rent by one Binod Kumar. Since the petitioner was only a landlord of the premises in question, he was not liable to be prosecuted in the present case. It was argued that in any event, in view of Section 32 of the Act, the police was not having any authority to lodge the F.I.R. and submit report. He has further argued that once allegation was made regarding commission of offences under the provisions of Drugs & Cosmetics Act, the police was not authorized to include penal provisions as prescribed under Sections 420, 468/34 of the Indian Penal Code. On the aforesaid grounds, it has been prayed to quash the order of cognizance. Sri Jharkhandi Upadhaya, learned Addl. Public Prosecutor has vehemently opposed the prayer of the petitioner. It was submitted that one of the main accused has not been apprehended till date, nor any identification of said Binod Kumar has been traced out till the date of submission of the police report. According to learned Addl. Public Prosecutor, the order of cognizance suffers with no infirmity and, as such, the petition is liable to be rejected. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In the present case, an F.I.R. was Patna High Court Cr.Misc. No.20018 of 2010 (6) dt.05-11-2012 4/ 5
lodged on the basis of the written report submitted by the Drug Inspector disclosing commission of serious offences under the provisions of Sections 420, 468/34 of the Indian Penal Code besides the provisions contained in the Drugs & Cosmetics Act. During investigation, the allegation was found true and chargesheet was submitted, thereafter the learned Magistrate has passed the impugned order of cognizance. So far the plea of learned Senior Counsel for the petitioner that for the offence under the provisions of Drugs & Cosmetics Act, only prosecution can be initiated on the basis of complaint filed by the Drugs Inspector is concerned, the Court is of the opinion that if an F.I.R. is registered under the cognizable offences of the Indian Penal Code as well as for the offence as prescribed under the Drugs & Cosmetics Act, the police is fully competent to investigate the case. So far Hindustan Lever Ltd. Case (supra) is concerned, the said case was lodged only for the offences under the Drugs & Cosmetics Act. In the present case, F.I.R. was lodged for the offences under Sections 420, 468/34 of the Indian Penal Code and under the provisions of Drugs & Cosmetics Act and, as such, the petitioner may not get much help from the Hindustan Lever Ltd. Case (supra). Moreover, the plea that the petitioner was only landlord of the premises in question is concerned, it is evident from Annexure-2 to the petition that agreement was entered in between so called accused Binod Kumar and father of the petitioner. However, merit of the case may not be examined by this Court, while examining the order of cognizance. On perusal of the order of cognizance, the Court is satisfied that the learned Magistrate has committed no error.
Accordingly, I am of the view that the order of cognizance in the present case may not be interfered with. However, if so advised, the petitioner Patna High Court Cr.Misc. No.20018 of 2010 (6) dt.05-11-2012 5/ 5
can take all the pleas, which have been taken in the present case, at the appropriate stage.
The petition stands dismissed.
(Rakesh Kumar, J)
NKS/-/
Raj Kumar Makkad
(Expert) 21 November 2012
Nothing remains to be added in the wise reply supported with the relevant citation put-forth by ajay.
