PANKAJ KUMAR Vs. SURESH PRASAD AGARWAL

JUDGEMENT

(1.) IN this application the petitioner has prayed for quashing the order dated 19.12.2003 passed by Judicial Magistrate, 1st Class, Bokaro whereby and whereunder he came to the conclusion that prima facie an offence under section 120B, 420, 468, 469 of the IPC and also under section 27 of the Drugs and Cosmetics Act, 1940 is made out. Accordingly, he ordered for issuance of process against the accused persons including this petitioner.

(2.) IT is alleged that the complainant is a retail shop dealer and he used to sell drugs. It is alleged that he also sells, Sacmin Plus after purchasing it from the wholesale shop of petitioner. It is further alleged that the aforesaid Sacmin Plus was manufactured by Unichem Laboratories Ltd. and at the relevant time accused no. 1,2 and 3 are the officers who are in -charge of the business of the said company. It is further alleged that accused no. 4 is the agent and distributor of Unichem Laboratories Ltd. It is further alleged that the complainant had purchased the aforesaid medicine on 5.6.2003 and 16.6.2003 from the shop of this petitioner and later on sold it to witness no. 1 vide issuance of cash -memo no. 160 dated 18.6.2003. It is then alleged that in the evening of 18.6.2003 the witness no. 1 came and disclosed to the complainant that in the pack of the aforesaid medicine date of ˜manufacturing' and date of ˜best before use' has been blackened, due to that manufacturing date and expiry date is not visible.

(3.) IT is submitted that when there is special provision for any offence, the general provision will not apply. Therefore the cognizance taken by the learned judicial magistrate under section 120B, 420, 468 and 469 of the IPC is against the law. It is further submitted that the Sacmin Plus is not a drug as defined under the Drugs and Cosmetics Act. In support of that learned counsel for the petitioner relied upon annexure -2 series and also on the letter of manufacturer( annexure -3/1).