RAGHUNATH BHAGAT Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application u/S. 482 of the Code of Criminal Procedure, both the petitioners have prayed for quashing of the order dated 3-1-89 passed by the Chief Judicial Magistrate, Munger, by which cognizance has been taken against them u/S. 420 of the IPC and 27 of the Drugs and Cosmetics Act, 1940, and the case has been transferred to the file of Shri B. C. Jha, Judicial Magistrate, Ist Class, Munger, for trial vide G. R. No. 1543/88.

(2.) Prosecution case, in brief is that Opposite party No. 2 lodged a written report on 30-9-88 at Kotwali Police Station, Munger, alleging therein that his son Anand Raj Verma, two year old boy, was suffering from some disease and was under the treatment of Dr. Janardan Prasad of Mohalla, Barabazar, Munger, on the advice of the said doctor, the informant Opposite party No.2 purchased one vial of Ampicillin of 100 M.G. Potency from the shop of Jagannath Bhagat which is known as Bhagat Pharmacy. The aforesaid medicine was injected to the son of the informant but there was no improvement in his condition. The informant found that on the container of the vial, the date of expiry of the medicine was mentioned as "1988 August". The informant showed it to his physician, who after seeing the expiry date of the vial as mentioned on its container, observed that the validity date of the said medicine had expired and, therefore, it could not produce the desired effect. Further case of the informant is that on 30-9-88 he again went to the said Bhagat Pharmacy along with his father and brother and asked for four vials of Ampicillin of 100 M. G. Potency and found that on all the vial the expiry date was mentioned as August, 1988. The informant pointed it out to the Sales Man and enquired from him as to why he was selling the medicine of expired date on which the sales man started quarreling with him and did not grant him any receipt. Thereafter the informant took the four vials of the Ampicillin to the Police station and submitted a written report, on the basis of which formal FIR was drawn and a case u/S. 420, IPC and S. 27 of the Drugs and Cosmetics Act was instituted.

(3.) On behalf of the petitioners, argument has been advanced that in absence of any receipt showing purchase of the medicine from the shop of the petitioners, no case u/S.420, IPC and S.27 of the Drugs and Cosmetics Act is made out. He further contended that there is complete absence of any mens rea on the part of the petitioners and no case is made out against them as there is no reliable material on the record to show that the said medicine was sold by the petitioners to the informant. It has been further argued that according to S. 32 of the Drugs and Cosmetics Act, no prosecution can be launched except on a complaint filed by a Drug Inspector. In the instant case, admittedly the complaint has not been filed by the Drug Inspector, and as such according to learned counsel for the petitioners. Cognizance against the petitioners is bad and the order taking cognizance is fit to be set aside.