Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1723 OF 2008
(Arising out of SLP (Crl.) No. 6043 of 2007)
State of Kerala ..Appellant
Versus
Orison J Francis & Anr. ..Respondents
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge
quashing the proceedings in CC No. 917 of 2004 in the Court of Chief
Judicial Magistrate, Ernakulam.
3. Background facts in a nutshell are as follows:
A complaint was filed alleging commission of offences punishable
under Section 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics
Act, 1940 (in short the ‘Act’). Allegation was that the three accused
persons were manufacturing and selling and storing DXN Ganocelium (GL)
and DXN Rishi and (RG) capsules, which are drugs within the definition of
Section 3(b) of the Act, without a manufacturing licence. In the complaint
M/s. Deshsan Trading (India) Pvt. Ltd. represented by Abdul Rahmath
Puvarasar Abdulla, Director and Abdul Rahmath Pavarsan Abdulla and
Orison J Francis, Branch Manager were arrayed as accused persons Nos. 1
to 3. A petition under Section 482 of the Code of Criminal Procedure, 1973
(in short the ‘Code’) was filed by the accused No. 1 and 3 who are
respondents 1 & 2 in the present appeal. Basic stand before the High Court
was that the alleged drugs seized belonged to “Ayurvedic” category which
is dealt with under Section 3(a) whereas the “Allopathy drugs” are defined
under Section 3(b). Separate Chapter i.e. Chapter IVA deals with
Ayurvedic drugs etc. while Chapter IV deals with “Allopathy drugs”. The
charge is that the appellants violated Section 18(c) of Chapter IV, i.e. with
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respect to Allopathy Drugs. According to the accused the article sold was
food supplement and at best is only an Ayurvedic proprietary drug. The
Drug Department of State of Tamil Nadu has issued drug licence under
Chapter IV-A as an Ayurvedic drug and thereafter licence was issued by the
Food and Drug Administration, Pondicherry. Hence, sanction under Section
33 M of the Act ought to have been obtained to launch prosecution, which
is lacking. It is also not established that the person who launched the
complaint is a public servant under Section 21 of the Act. According to
them, gazette notification and the letter of appointment of the
complainant/Drug Inspector are insufficient to satisfy Section 21 or Section
33G. What has been produced is only a transfer order. It was further
contended that the court has not considered the pre-summoning evidence in
the matter. Nowhere it is mentioned in the complaint that the same has been
filed by the complainant in his capacity as public servant and the
examination of the complainant can be dispensed with.
4. Stand of the present appellant before the High Court was that whether
the goods seized were Ayurvedic Drugs can only be decided in the trial and
the threshold interference by the High Court is not called for. Additionally
it was submitted that the undisputed position being that the respondents did
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not possess a licence, the High Court could not have interfered. The mere
fact that the licence was granted subsequently is of no consequence. It was
pointed out that the inspector who made the seizure and filed the complaint
was authorized to do so. In this connection, reference is made to the order
dated 3.5.2000 transferring the concerned Drug Inspector from the Drugs
Control Society, Trivendrum to be posted as Drug Inspector in the office of
the Assistant Drugs Controller. Reference is also made to the Notification
dated 19.11.2001 relating to the power of inspection of inspectors. It is
stated that the explanatory note has no application because only when the
drug is shown to be Ayurvedic drug, the explanatory note shall have
relevance.
5. Learned counsel for the respondents, on the other hand, submitted
that the seized drugs are nothing but Ayurvedic drugs. The complaint itself
was filed after two years on 2.12.2003, though the seizure was made on
much earlier. It is also submitted that the licence was subsequently granted
after a long lapse of about two years. Same is a factor which has weighed
with the High Court and for a technical breach the proceedings should not
continue. The drugs were seized on 12.12.2001 and on the next day itself
the respondent had obtained the licence.
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6. Whether the goods in question are Ayurvedic drugs is essentially a
matter for trial. Section 18(c ) of the Act reads as follows:
“18. Prohibition of manufacture and sale of certain drugs and
cosmetics – From such date as may be fixed by the State
Government by notification in the Official Gazette in this
behalf, no person shall himself or by any other person on his
behalf.
(a)……..
(b)………
(c) manufacture for sale (or for distribution), or sell, or stock or
exhibit (or offer) for sale, or distribute any drug (or cosmetic),
except under, and in accordance with the conditions of a licence
issued for such purpose under this Chapter.”
7. Obviously, a licence was required for dealing with the drugs. The
mere fact that the application for licence was filed, did not entitle the
respondent to manufacture and/or to sell the concerned drugs. The High
Court, therefore, was not justified in quashing the proceedings. This is a not
a case where threshold interference by exercising power under Section 482
of the Code was called for.
8. The scope for interference at the threshold by exercising power under
Section 482 of the Code has been succinctly stated by this Court in State of
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Haryana v. Bhajan Lal [1992 Supp(1)SCC 335]. In paragraph 102 it was
stated as follows:
“In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent abuse
of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise,
clearly defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the FIR
do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
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(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.
9. The present case does not belong to any of the aforesaid categories.
10. The appeal is accordingly allowed. We make it clear that we have
not expressed any opinion on the merits of the case.
......………………………….....J.
(Dr. ARIJIT PASAYAT)
..……………………….…...…..J.
(C.K. THAKKER)
…..……………….……………..J.
(LOKESHWAR SINGH PANTA)
New Delhi,
November 4, 2008
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