IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M .P. No. 877 of 2005
Pankaj Kumar --------Petitioner
Vs.
1. The State of Jharkhand
2. Suresh Prasad Agarwal ------Opposite Parties
CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Petitioner: M/s. R.S. Mazumdar, Rohit Roy
For the Opposite Parties: APP
2/15.07.2009
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.
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.
Thereafter complainant had opened the cartons and found that in
all the packets there was such blackening. It is stated that when the
complainant removed the blackened spot, he found that the product
has been expired in the month of January, 2003. It is further stated
that the matter was disclosed to this petitioner, who informed that
he has purchased it from accused no. 4. Thereafter legal notice
served upon the accused persons, but they had not send any reply.
Accordingly the complaint petition was filed alleging that the
accused persons had committed an offence under section 418,
463, 468, 469 of the IPC and also under section 27 read with
section 17(C) of the Drugs and Cosmetics Act. It appears that after
inquiry, learned judicial magistrate came to the conclusion that
prima-facie offences under section 120(B), 420, 468, 469 of the
IPC and 27 of the Drugs and Cosmetics Act is made out against
the accused persons. Accordingly the court ordered for issuance of
summons.
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).
Having heard the submission, I have gone through
the record of the case. From the perusal of complaint petition, it is
clear that the packet and Carton of aforesaid Sacmin Plus had
been blackened with a view to suppress the fact that the product
had already expired in the month of January, 2003. Thus, prima
facie it appears that the said blackening on the Packet was made
with an intention to cheat the purchaser. In my view, said
blackening on the packet with a view to conceal the expiry date
also amounts to forgery. Therefore, in my view, prima facie offence
under section 120B, 420, 468 and 469 of the IPC is made out.
Under the Drugs and Cosmetics Act, there is no specific
punishment for cheating and forgery. Under the said circumstance,
I find no substance in the first submission of learned counsel for
the petitioner, hence the same is rejected.
So far the second contention is concerned, while
exercising the power U/s. 482 of Cr.P.C. it is not open for this court
to make an inquiry for coming to a conclusion as to whether case is
made out or not. The facts brought on record by the petitioner
through Annexure-2 and 3 series are not the part of inquiry under
section 202 of the Cr.P.C., therefore, the same cannot be looked
by this Court while judging the correctness of impugned order.
From perusal of complaint petition, prima facie it appears that
accused person including the petitioner had contravened the
provision of section 17(C) of the Drugs and Cosmetics Act, thus,
the court below has rightly come to the conclusion that an offence
under section 27 of the Drugs and Cosmetics Act is made out.
In view of the discussion made above, I find no merit
in this application, the same is accordingly dismissed.
(Prashant Kumar, J.)
Sharda/