High Court Jharkhand High Court

Pankaj Kumar vs State Of Jharkhand & Anr. on 15 July, 2009

Jharkhand High Court
Pankaj Kumar vs State Of Jharkhand & Anr. on 15 July, 2009
      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/