SHESH NARAYAN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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 Sections 17B, 18(a)(1), 18(c), 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 mis. Vials. In the said raid, two drums of 20 Kgs containing yellow water in one of the 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 alongwith 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, charge-sheet was submitted and thereafter by the impugned order, the learned Magistrate took cognizance of offences, as indicated above.

(2.) Aggrieved with the order of cognizance, the petitioner has approached this Court by filing the present petition.

(3.) 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; Hindustan Lever Ltd. vs. State of Bihar & Ors., 1997 1 BLJR 899 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 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 labeling 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.