ANOOP KHANNA Vs. STATE

JUDGEMENT

(1.) By this petition under Section 482 Cr.P.C., the petitioner seeks quashing of the criminal proceedings emanating from the FIR No. 416/92 under Section 61 of the Punjab Excise Act registered at the Police Station Lahori Gate, Delhi and pending on the file of the Metropolitan Magistrate, Delhi.

(2.) Briefly stated, the facts giving rise to the petition are that on 15.11.1991, 177 bottles of `SOMAMRIT', an Ayurvedic medicine manufactured by Dabur India (Ltd.), were recovered by S.I. Rajendra Singh of P.S. Lahori Gate from the petitioner's shop. Representative samples of `SOMAMRIT' were sent to the Analyst, who reported that the v/v content of ethyl alcohol was in excess of the permissible limit, which is violative of the notification dated 7.12.1991 issued under the Punjab Excise Act (hereinafter referred to as `the Excise Act'). Investigation pursuant to the said FIR culminated into submission of a charge-sheet under Section 61 of the Act against the petitioner. On 30.10.1995, the learned Metropolitan Magistrate framed a charge under Sections 61/1/14 of the Excise Act against the petitioner. Aggrieved thereby, the petitioner moved the Additional Sessions Judge by filing a revision, which was dismissed by the order dated 18.10.1997. Not satisfied with the dismissal of the revision, the petitioner has come up before this Court under Section 482 Cr.P.C.

(3.) It is undisputed that the Dabur India is a limited company engaged in manufacture of Ayurvedic medicine and Alopathetic medicaments along with cosmetics. The said company was granted a licence for manufacturing SOMAMRIT and one of the ingredients of such preparation was alcohol. It is also undisputed that the representative sample of SOMAMRIT was examined by the chemical examiner, who opined that it contains 11.998% to 2.49% volume by volume of alcohol. The Chemical Examiner further reported that SOMAMRIT has not been listed in the standard Ayurvedic Pharma-copoeia recognized by the Central Government. Learned counsel for the petitioner contended that the entire field in regard to medicinal preparations and drugs is covered by the Medicinal and Toilet preparations (Excise Duties) Act, 1955 (hereinafter referred to the Act of 1955) and the Drugs and Cosmetics Act, 1940 (hereinafter referred to the Act of 1940) and the dealers under these Acts cannot be proceeded against under the provisions of the Excise Act. According to the learned counsel, SOMAMRIT is an Ayurvedic medicine and is governed by the provision of the Act of 1955 and the Act of 1940. The Act of 1940 is a self contained one and provides for the issuance of licence, enumerates the conditions of licence and mentions the contravention and violation of any of the provisions of the Act and the conditions of the licence; and, therefore, the manufacturers and dealers in medicinal preparations if they commit any violation of the provisions of the Act, can be effectively proceeded against under the provisions of the very same Act without resorting to the provisions of the Excise Act. Learned counsel for the petitioner further contended that in those circumstances, the Excise Act has no application to the facts of the present case, and the criminal proceedings initiated against the petitioner are liable to be quashed. It is also contended that `SOMAMRIT' is an Ayurvedic medicine and the same is governed by the provisions of the Act of 1940, the representative samples had to be analysed by the Authority prescribed under the Act and as the representative samples had been examined by an Authority other than prescribed under the Act of 1940, no prosecution can be launched against the petitioner under the Excise Act. Reliance was sought to be placed on the decisions of the High Court of Andhra Pradesh in Cr.P.No. 137 & 138 of 1995 (Sriram & Anr. v. State of AP & Anr.) decided on 12.4.1996 and the Crl. Petition No. 533 of 1995 (Sriram & Anr. v. State of AP & Anr.) decided on 3.9.1996. In both the Cases prosecution was launched under the A.P. Excise Act on the basis of the report of the Chemical Examiner and the same was quashed on the ground that the sample was not analysed by the Analyst appointed under the Act of 1940.