IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
-.-
Crl. Misc. No. M-54032 of 2007
Date of Decision:- 18.2.2009
Arvinder Singh Versus State of Punjab & Ors.
Present:- Mr. P.S.Jammu, Advocate, for the petitioner.
Mr. R.S.Rawat, AAG, Punjab.
M.M.S.BEDI. (J) (Oral)
This petition has been filed for quashing for FIR No. 156, dated
5.7.2007
, under Section 18-A, 18-B of Drug and Cosmetics Act, 1940 read
with Section 420 IPC, registered at Police Station City Kotkapura, District
Faridkot.
Petitioner is running a shop of chemist with the name and style of
M/s A.S.Medical Store situated at Pheruman Chowk, Kotkapura, District
Faridkot. He holds a valid license issued by State Drugs Controller, Punjab,
Sector 34-A, Chandigarh, Annexure P-2 for sale of medicines and drugs on
the wholesale basis valid from 1.1.2007 to 31.12.2011. The FIR was
registered against the petitioner on the ground that though he is a wholesaler
licnesee but stip cutting recovered from his shop indicated that he was
selling the medicines at retail basis. The FIR was registered at the instance
of District Drug Inspector, District Faridabad, on the basis of letter dated
5.7.2007 sent to S.S.P Faridkot. The FIR registered on the basis of
following complaint, Annexure P-1:-
“Subject:- Joint drug raid dated 5.7.2007-M/s A.S.Medical Store,
Pheruman Chowk, Kotkapura,, sir, it is requested that today
on 5.7.2007 a joint drug raid along with your department was
Crl. Misc. No. M-54032 of 2007 -2-conducted at the shop of M/s A.S.Medical Store, Pheruman
Chowk, Kotkapura. Medicines mentioned below were recovered
and seized without having bill on from no.16, Sr. No.1 9×100 tab.
Microlit, Sr.No. 2-3×10+10 Cap. Promul Spasm. Above said
medicines was being misused as drug, Sr. No. 25X1 strip.
Accupreg test kit above said medicines is necessary to kept at 3C
temperature to 30C but this medicines was lying in the room
temperature at about 40C, the medicines which are at Sr. No.4, Sr.
No.5, Sr. No.6 were having strip cutting, whereas this firm has
wholesale license and strip cutting shows that they are selling at
retail basis.
Main contention of learned counsel for the petitioner is that no
FIR can be registered on account of violation of provisions of Drug and
Cosmatic Act read with Section 420 IPC. It is only a complaint filed by
Drug Inspector which is maintainable before the Judicial Magistrate, in case
of violation of the provisions of the Drug and Cosmatic Act. The ambit of
taking cognizance is mentioned in Section 32 of the Drugs and Cosmatics
Act laying down that no prosecution shall be instituted under the Drugs and
Cosmatics Act, except by a Inspector or by the person aggrieved or by a
recognised consumer association, whether such person is a member of that
association or not. In the present case, offence under Section 420 IPC has
been added in order to give colour of ‘cognizable offence’ to enable the
police to register the FIR.
Careful perusal of the complaint sent by Drug Inspector, which
is reproduced hereinabove indicates that no offence under Section 420
Crl. Misc. No. M-54032 of 2007 -3-
IPC is made out. The necessary ingradients to attract punishment under
Section 420 IPC are that there has to be fradulant and intentional
inducement of a person by deciving him. The person so decived should be
induced to deliver any property to any person or to consent that any person
shall retain any property or that the person so decieved should be
intentionally induced to do or omit to do anything which he would not
continue or omit if he were not so deceived.
In the present case, there is absolutely no allegation that any one
was induced to part with any property. The simple allegation against the
petitioner is that he being a wholesale dealer was suspected of selling the
medicins in retail. As the offence under Section 420 IPC is not made out
the lodging of FIR under the Drugs and Cosmatics Act is nothing but an
abuse of process of the Court.
This petitionis allowed. FIR No. 156, dated 5.7.2007 is hereby
quashed. However, Drug Inspector will be at liberty to initiate proceedings
in accordance with law by following the correct procedure provided under
the Drugs and Cosmatics Act.
February 18, 2009 (M.M.S.Bedi) tripti Judge