Judgment:
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE16H DAY OF JUNE, 2023 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.2281 OF2021BETWEEN:
1. . SRI.K.S.JAGADEESHA AGED ABOUT52YEARS S/O SRI K.S.SHIVANNA MEDICAL REPRESENTATIVE ADARSHA MEDICALS VIRAJPET TOWN – 571 218. 2 . SRI M.M.BANSI AGED ABOUT39YEARS S/O SRI M.B.MANDANNA PROPRIETOR OF ADARSHA MEDICALS VIRAJPET TOWN – 571 218. 3 . SRI M.A.SADASHIVA AGED ABOUT65YEARS S/O SRI LATE ANANDA RAO R/O MAGGULA VILLAGE VIRAJPET TALUK KODAGU DISTRICT – 571 218. ... PETITIONERS (BY SRI DESU REDDY G., ADVOCATE) 2 AND: THE STATE OF KARNATAKA BY THE POLICE INSPECTOR SPECIAL POLICE STATION EXCISE AND LOTTERY PROHIBITION WING KODAGU DISTRICT MADIKERI REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. ... RESPONDENT (BY SRI MAHESH SHETTY, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO1SET ASIDE OR QUASH THE ORDER
DATED1802.2020 IN C.C.NO.504/2012 PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE AND JMFC COURT AT VIRAJPET; 2.SET ASIDE OR QUASH THE ORDER
DATED0102.2021 IN CRL.RP.NO.5011/2020 PASSED BY THE LEARNED II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI SITTING AT VIRAJPET AND ETC., THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER
S ON0806.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER
The petitioners/accused 2, 3 and 4 are knocking at the doors of this Court in the subject petition calling in question order dated 3 01-02-2021 passed in Criminal Revision Petition No.5011 of 2020 declining to discharge the petitioners from the array of accused in C.C.No.504 of 2012.
2. Facts in brief, as projected, are as follows: The 1st petitioner/accused No.2 is a medical representative; 2nd petitioner/accused No.3 is the proprietor of one Adarsha Medicals at Virajpet and the 3rd petitioner/accused No.4 is a Salesman in Adarsha Medicals. It is the story of the prosecution that on 12-04-2011 on receipt of certain credible information that accused No.1 being the owner of provision store in Bittangala Village is selling intoxicants to customers and, therefore, the respondent/police conducts a search in the provision store of accused No.1 and found a product by name Weak Ginger Tinture B.P. Accused No.1 is said to have disclosed that he has purchased Weak Ginger Tinture B.P. bottles from Adarsha Medicals, Virajpet. It is then, the very same Inspector who had conducted search in the provision store of accused No.1 conducts search in Adarsha Medicals owned by accused No.3 and found five boxes of Weak 4 Ginger Tinture B.P. and seized 250 bottles. Thereafter, the Inspector registers a complaint against accused Nos. 1 and 3 for offences punishable under Sections 32 and 34 of the Karnataka Excise Act (‘the Act’ for short). After investigation into the complaint, a charge sheet is filed by the respondent police against all the four accused, three of whom are petitioners in the subject petition, for offences punishable under Sections 32 and 34 of the Act.
3. The concerned Court takes cognizance of the offences alleged against the petitioners, registers C.C.No.504 of 2012 and issues summons to all the accused. On taking cognizance and issuing summons while registering criminal case, the petitioners filed application invoking Section 239 of the Cr.P.C. seeking discharge from the array of accused in the said proceedings. The Court by an order dated 18-02-2020 rejects the application filed by the petitioners. Aggrieved by the said rejection of the discharge application, the petitioners preferred Criminal Revision Petition before the learned Sessions Judge which also comes to be dismissed on 01-02-2021. It is the order of rejection of the 5 application under Section 239 Cr.P.C., by the learned Magistrate and the order of the learned Sessions Judge rejecting the revision petition, the petitioners are before this Court.
4. Heard Sri G. Desu Reddy, learned counsel appearing for the petitioners and Sri Mahesh Shetty, learned High Court Government Pleader appearing for the respondent.
5. The learned counsel appearing for the petitioners would seek to contend that the crime registered under Sections 32 and 34 of the Act would not become applicable to the petitioners/accused 2, 3 and 4. At best, it can be applicable against accused No.1 who would come within the ambit of the provisions of the Act. The 1st petitioner being a medical representative and the other accused being proprietor of Adarsha Medicals and its salesman cannot be hauled into the web of crime under the Act. At best the proceedings could be initiated under the Drugs and Cosmetics Act, 1940 as the 3rd petitioner is only a retailer who is selling the product which is licensed of a manufacturer whose product is also licensed. Therefore, selling licensed products would not come within 6 the ambit of the Act and as such, the very initiation of proceedings by the respondent/police is without jurisdiction qua accused 2, 3 and 4. He would seek quashment of entire proceedings.
6. On the other hand, the learned High Court Government Pleader representing the respondent would vehemently refute the submissions to contend that the Police after investigation have filed a charge sheet. The case is of the year 2012. Therefore, this Court should not, at this juncture, interfere, but permit the proceedings to go on, as it is for the petitioners to come out clean in the trial. He therefore, seeks dismissal of the petition.
7. The learned counsel for the petitioners would join issue to contend that the issue may be of the year 2012, but if the very registration of crime is without jurisdiction, it would cut at the root of the matter. He would submit that revision petition is rejected only in the year 2021. He would further contend that the sample was sent for chemical analysis, its result is that, it is a cough syrup. Therefore, even on the merit of the matter, there is no warrant for continuation of proceedings. 7
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. A complaint comes to be registered by the respondent/ Station House Officer of the Special Police Station in the Excise and Lottery Prohibition Wing of Coorg District. What precedes registration of complaint is, on 12-02-2011, the complainant receives credible information that accused No.1, owner of a provision store in Bittangala Village, was selling intoxicants to customers, and on such information conducts a search in the said provision store and found an alleged intoxicant “Weak Ginger Tinture B.P.
10. When accused No.1 was questioned, he discloses that the said ginger bottles were procured from M/s Adarsh Medicals, Virajpet. It is, thereafter, the very Inspector of Excise Wing conducts a search in M/s Adarsh Medicals, Virajpet claimed to be owned by accused No.3 and seized 250 bottles of the said product. 8 At the time of search it is known that petitioner No.1/accused No.2 was the sales representative, who had brought those bottles, he was arrayed as accused No.2. After the said search a complaint comes to be registered only against the Adarsha Medical shop and the owner of the provision store for offences punishable under Sections 32 and 34 of the Act. After investigation, the Police filed a charge sheet. It is then petitioners 1 and 3 are arrayed as accused 2 and 4.
11. The concerned Court, on filing the charge sheet, takes cognizance of the offences and registers criminal case in C.C.No.504 of 2012 and issues summons to the accused. After issuance of summons, the petitioners/accused 2 to 4 seek discharge from the array of accused by filing an application under Section 239 of the Cr.P.C. This comes to be rejected by the learned Magistrate in terms of his order dated 18-02-2020. The reasons rendered for such rejection are as follows: “…. …. ….
8. POINT NO.1:- The prosecution case is that on 12.4.2011 at around 8.15 p.m they conducted a raid over the store of accused No.1and found that he was selling intoxicating 9 ginger berries to his customers. On further investigation accused No.1 disclosed that he purchases the same from Adarsh Medical, Virajpet. Therefore, case has been registered against accused No.3 on the ground that they are the owner of the Medical Store. Against accused No.2 and 4 on the ground that they were selling ginger berries without licence. Therefore, they have lodged complaint against the accused Under Section 34 and 32 of Karnataka Excise Act. The application is filed Under Section 239 to discharge the accused persons. The grounds urged is that ginger berries do not come under the preview of Karnataka Excise Act.” The order does not contain any reason as to why the petitioners could not be discharged from the array of accused. It is thereafter the petitioners preferred a criminal revision petition in Criminal Revision Petition No.5011 of 2020 before the learned Sessions Judge who also dismissed the revision petition by the following order: “…. …. ….
12. Point No.1:- On perusal of the contention of both petitioner as well as respondent and on the basis of the records, it shows that the respondent police have registered the case against the petitioners stating that Accused No.1 gave a statement that he has purchased the ginger berries bottles from the petitioners. Accordingly the case has been registered against the petitioners. The petitioners contend that the ginger berries is only a medicine which can be used for calf and cold with the valid prescription of Medical Practitioner. But as per the prosecution these petitioners have supplied the ginger berries bottle without the medical prescription. Considering this aspect one thing is clear that the petitioners have supplied ginger berries bottles to the Accused No.1. If they 10 have supplied, whether they supplied on the basis of medical prescription by the valid Medical Practitioner or not, is to be decided only at the time of the trial. Of course it is admitted by the petitioners that ginger berries contains alcohol. So naturally when the ginger berries contains alcohol then it has to be used as per the prescription of the doctor.
13. The petitioner contend that the said ginger berries or ginger tincture will not attract the provisions of Section 32 and 34 of the Excise Act. Which comes under the Drugs and Cosmetics Act. According to that act only the Drug Inspector have got power to lodge the complaint. The present case is lodged by the Excise Authorities, which is not in accordance with law. Considering this aspect and more over on the documents produced by the petitioners, it shows that as per the report of chemical analysis the 7 bottles of ginger berries each containing 450 M.L having a strength of alcohol to the extent of 73.29 to 74.64. The said bottles contain ethyl alcohol and Shunti Kashaya which were to be sell as per the prescription of medical practitioner. As per this document when it becomes alcohol content then naturally the Excise Authority might have the power. But another document produced by the petitioner which is issue by the Commissioner of Excise, Bengaluru under the Right to Information Act shows that the application filed by the applicants will not comes under the purview of Excise Authority. But this application is not supported by the application of the petitioner. Similarly another endorsement issued by the Deputy Commissioner of Excise, Kodagu dated 04-11-2015 also shows that the weak ginger tincture B.P. Against this drug the Excise Authority not filed the suit U/s 34 and 35 of the Excise Act. Considering the documents produced by the petitioners itself shows that the ginger berries or ginger tincture contains alcohol. Whether it comes under the purview of Excise Authority or under the purview of Drugs and Cosmetics Act is to be decided only after the trial. Admittedly the investigation is completed and the police have filed the chargesheet against the petitioners and another. Looking to all these aspects if we consider the order passé by the trial court on application U/s 239 of Cr.P.C the trial court rejected the application on the ground 11 that there are prima-facie materials to show that the accused persons have committed the offence. Hence application is rejected. Considering this aspect, looking to the facts and circumstances the order passed by the trial court is as per law. Because unless and until trial goes on, it cannot be said that whether the accused petitioners were committed the offence or not. More over as per the provision U/s 239 of Cr.P.C as observed by the trial court, it shows that if the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, then only the application is to be considered regarding the discharge. But here on perusal of the contention of both sides the trial is not yet commenced though the alleged offence stated to be on 12-4-2011. Hence under such circumstances I am of the opinion that the petitioners have not made out sufficient ground for discharge from the alleged offence….” It is these orders that drive the petitioners to this Court.
12. The issue now that requires consideration is, whether the Station House Officer of the Special Police Station for Excise and Lottery Prohibition did have power to conduct search in a medical store and seize licensed medical products, licenced under the Drugs and Cosmetics Act. Admittedly, a medical store would come within the provisions of the Drugs and Cosmetics Act. Section 32 of the Drugs and Cosmetics Act, 1940 reads as follows: “32. Cognizance of offences.—(1) No prosecution under this Chapter shall be instituted except by— (a) an Inspector, or 12 (b) any Gazetted Officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or (c) the person aggrieved; or (d) a recognised consumer association whether such person is a member of that association or not. (2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shall try an offence punishable under this Chapter. (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter.” Section 32 mandates that it is only the Inspector as defined under the Drugs and Cosmetics Act has the power to prosecute and not any other Authority. Therefore, a FIR registered by the Police Officer, that too for offences punishable under Sections 32 and 34 of the Karnataka Excise Act is on the face of it without jurisdiction, as the Act would not have been invoked for the drugs which are licensed under the Drugs and Cosmetics Act. Therefore, the very complaint registered by the respondent runs counter to the law.
13. The issue has cropped up before the Apex Court and several High Courts where proceedings were instituted by officers 13 other than the one who was empowered to initiate under the Drugs and Cosmetics Act. Hence, the issue in the lis is no longer res integra. The Apex Court in the case of UNION OF INDIA v. ASHOK KUMAR SHARMA1 has held as follows: “…. …. ….
169. Before we proceed to the operative portion of our judgment, we must express the hope that the vexed issues which we have resolved through this judgment, in regard to the power of arrest, may engage the competent legislative body. The Conclusions/Directions 170. Thus, we may cull out our conclusions/directions as follows:
170. 1. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of CrPC, the police officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same. 170.2. There is no bar to the police officer, however, to investigate and prosecute the person where he has committed an offence, as stated under Section 32(3) of the Act i.e. if he has committed any cognizable offence under any other law. 170.3. Having regard to the scheme of CrPC and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a 1 (2021) 12 SCC67414 police officer cannot register an FIR under Section 154CrPC, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of CrPC. 170.4. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu [D.K. Basu v. State of W.B., (1997) 1 SCC416:
1997. SCC (Cri) 92]. and to follow the provisions of CrPC. 170.5. It would appear that on the understanding that the police officer can register an FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act. We find substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspector, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard. 170.6. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that police officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this judgment. 15
170.7. We further direct that the Drugs Inspector, who carry out the arrest, must not only report the arrests, as provided in Section 58CrPC, but also immediately report the arrests to their superior officers.
171. In view of our conclusions/directions and subject to the same, we would, on the facts, uphold the impugned judgment [Ashok Kumar Sharma v. State of U.P., 2018 SCC OnLine All 5937]. and dismiss the appeal. We record our appreciation for the enlightening submissions of the learned Amicus Curiae Shri S. Nagamuthu.” (Emphasis supplied) The Apex Court holds that in regard to cognizable offences falling under Section 32 of the Drugs and Cosmetics Act, a Police Officer cannot prosecute the offenders for such offences mentioned in Section 32. The Madras High Court in the case of RAM KOWSHIK AND ANOTHER v. STATE OF TAMIL NADU AND OTHERS2 has held as follows: “…. …. ….
10. Upon considering the arguments advanced by either side, in order to resolve the issue raised in this petition, it is necessary to see Section 32 of the Drugs and Cosmetics Act, 1940, which reads as follows:- 2 Crl.O.P (MD) No.6871 of 2020 decided on 15-07-2020 16 “32. Cognizance of offences—1 [(1) No prosecution under this Chapter shall be instituted except by— (a) an Inspector; or (b) any Gazetted Officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government or by a general or special order made in this behalf by that Government; or (c) the person aggrieved; or (d) a recognised consumer association whether such person is a member of that association or not.
11. Accordingly, under Section 32 of the Drugs and Cosmetics Act, 1940, the Police officers are excluded for the purpose of instituting the prosecution. At this juncture, it is useful to refer Section 4 of Cr.P.C., which reads as under:- “Section 4 of Cr.P.C.. Trial of offences under the Indian Penal Code and other laws. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
12. Therefore, as discussed hereinabove, the Drugs and Cosmetics Act, 1940 is a complete code and thereby, under Section 32 of the Drugs and Cosmetics Act, 1940, no prosecution can be launched on the basis of a police report 17 submitted under Section 173(2) of Cr.P.C. If no cognizance of the offence can be taken under the Act, 1940, on the basis of a police report, institution of the FIR under Section 154 of Cr.P.C and the investigation pursuant thereto under Sections 156 and 157 of Cr.P.C., would be impermissible.
13. In the present case, FIR has been lodged by the Assistant Drug Controller. He may have been appointed as an Inspector in consonance with the provisions of the said Act, 1940, as required under Section 3(e) of the Act. There is nothing on record to establish his appointment in consonance with the Drugs Act. However, the issue with regard to the competency of the Assistant Drug Controller to act as an Inspector is not an issue. In this regard Section 32 of the Act, 1940, is very clear that only the Drug Inspector that means the 3rd respondent is the competent officer to lodge a complaint in respect to the offences contemplated under the Drugs and Cosmetics Act, 1940.
14. Hence, in view of the above, I am of the firm opinion that the Police officers are not having the power to investigate the offences punishable under the Act, 1940. Further, the 2nd respondent, who is the defacto complainant in Crime No.865 of 2020, is not a competent person to lodge a complaint in respect to the offences punishable under the provisions of the Drugs and Cosmetics Act, 1940. Hence, this Court is of the considered view that the registration of the FIR in Crime No.865 of 2020 against the petitioner, is nothing but an abuse of process of law and therefore, the same is liable to be quashed.” (Emphasis supplied) 14. In the light of the judgment of the Apex Court and that of the High Court of Madras, the Police Officer who has sought to invoke Sections 32 and 34 of the of the Karnataka Excise Act, for drugs licenced under the Drugs and Cosmetics Act, was clearly not 18 empowered to do so, and make a licensed drug a subject matter of criminal proceedings.
15. It is not in dispute that the 2nd petitioner, proprietor of Adarsha Medicals has a retail licence and drugs licence valid at the time of inspection and the manufacturer of the said product also had a licence to manufacture the said Ginger Berry. The Drugs Control Administration of Andhra Pradesh has permitted manufacture of Weak Ginger Tincture BP which is the one that is seized. Therefore, the very seizure and initiation of proceedings by the respondent was without authority of law. Apart from the aforesaid fact of lack of jurisdiction, the issue is clearly in favour of the petitioners even on the merit of the matter. The product that was seized was sent to the forensic science laboratory for chemical analysis. The Analyst after such analysis has rendered a report on 13-05-2011 itself and the report of the Chief Chemical Analyst, Government of Karnataka on the sample submitted by the respondent/complainant reads as follows:
19. “PÀæªÀÄ ªÀ¸ÀÄÛUÀ¼À «ªÀgÀ ¥ÀæªÀiÁt ªÀÄzÀå¸ÁgÀzÀ ¸ÀASÉå Description of the Quantity CA±À Sl. exhibits Strength of No.Alcohol 1. K¼ÀÄ ªÉƺÀgÀÄ ªÀiÁrzÀ 450«Ä° 73.29 ¨Ál®ÄUÀ¼À°è EzÉ JAzÀÄ jAzÀ ¥ÀæwAiÉÆAzÀgÀ°è ºÉüÀ¯ÁzÀ fAdgï §jøï 74.64% ¨Ál®ÄUÀ¼À ªÉÄÃ¯É 1 jAzÀ 7 «/«” gÀªÀgÉUÉ £ÀªÀÄÆ¢¸À¯ÁVzÉ. C©ü¥ÁæAiÀÄ:- ªÉÄîÌAqÀ ¨Ál®ÄUÀ¼À°è FxÉʯï D¯ÉÆÌúÁ¯ï ªÀÄvÀÄÛ ±ÀÄAn PÀ±ÁAiÀÄ PÀAqÀÄ §A¢zÀÄÝ CªÀÅUÀ¼À£ÀÄß ªÉÊzÀågÀ ¸À®ºÉ ªÉÄÃgÉUÉ ªÀiÁgÁl ªÀiÁqÀ§ºÀÄzÁVzÉ. (Emphasis added)
The aforesaid document is an enclosure to the charge sheet. It reads that 7 sealed bottles of ginger berries were sent to chemical analysis and the opinion of the chemical analyst is that it does contain Ethyl Alcohol and Shunti Kashaya and this can be administered to patients on medical advice and may be sold as caugh syrup. Therefore the Analyst opinion is that it could be sold as cough syrup. This is on merits of the matter. What is seized is Weak Ginger Tinture. The Ginger Tinture is of two kinds – one a strong Ginger Tinture and a weak Ginger Tinture. It is the weak Ginger Tinture that acts as a deterrent to cough and not the strong 20 Ginger Tinture, as described in medical parlance, and as can be found in the British Pharmacopoeia, a journal published by the General Medical Council, London. Therefore, on the merits of the matter as well, the product that was seized cannot be termed to be an intoxicant, as obtaining under the provisions of the Act even.
16. On both the counts i.e., the issue of lack of jurisdiction, as also the merit of the matter of the FSL report being in favour of the petitioners, describing the product to be ‘ ±ÀÄAp PÀµÁAiÀÄ’ and that it can be consumed as a cough syrup in the name of Ginger Berry, further proceedings, if permitted to continue against the petitioners would become an abuse of the process of the law and result in miscarriage of justice. No doubt ‘ ±ÀÄAp PÀµÁAiÀÄ’ is bitter to consume, but it cannot be permitted to become so bitter that the petitioners will have to face the rigmarole of a criminal trial.
17. For the aforesaid reasons, I pass the following: ORDER
(i) Criminal petition is allowed. 21 (ii) The order dated 01-02-2021 passed by the II Additional District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet in Crl.R.P.No.5011 of 2020, as also the order dated 18-02-2020 passed by the Additional Civil Judge and JMFC, Virajpet in C.C.No.504 of 2012 are set aside. (iii) The application filed by the petitioners/accused 2 to 4 before the Civil Judge and JMFC, Virajpet in C.C.No.504 of 2012 is hereby allowed and the petitioners are discharged from the array of accused. (iv) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioners under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against any other accused pending before any other fora. Sd/- JUDGE Bkp