Dismissed

Maan Singh v. State of U.P. Thru. Prin. Secy. Home Lucknow and Anr.

Allahabad HC7 Jul 2022/8784/2019

Case brief

AI extract

What is this about?

In this appeal against an order dismissing a discharge application, the Single Judge held that while police cannot prosecute purely drug offences under the Drugs and Cosmetics Act, they retain power to register FIRs and investigate where cognizable offences under IPC are also involved. The petition under Section 482 Cr.P.C. was dismissed as not maintainable, with directions to raise the legal bar

What did the court decide?

Petition dismissed; directed to appear before trial court to argue that Section 18 charge is not maintainable as implicating police cognizance powers under the Drugs and Cosmetics Act.

Maan Singh Vs State of U.P. Thru. Prin. Secy… — Writ and Judicial Review | Allahabad HC (2022)

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Court No. - 10

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Case :- APPLICATION U/S 482 No. - 8784 of 2019

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Applicant :- Maan Singh

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Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lucknow And Anr.

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Counsel for Applicant :- Ratnesh Singh Tomar,Ashutosh Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Kumar Singh,J.

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The present petition under Section 482 Cr.P.C. has been filed against the order dated 18.10.2019 passed by the Special Judge, Drugs and Cosmetics Act/Additional District and Sessions Judge, Court No.15, Lucknow in S.T. Case No.1667 of 2018 on an application filed by the petitioner under Section 227 Cr.P.C. seeking discharge in the case.

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An FIR came to be registered against the petitioner for an offence under Sections 274, 275 and 276 IPC and Section 18 of the Drugs and Cosmetics Act. The police after investigating the offence, has filed the charge sheet against the petitioner for the said offences inasmuch as as per the police, 51 bottles of Benedryl Syrup, which were found in the possession of the petitioner, were spurious one.

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Learned Special Judge after considering the submissions and the evidence available on record, found that there is sufficient material available on record to support prima facie charge against the petitioner under Sections 274, 275 and 276 IPC as well as under Section 18 of the Drugs and Cosmetics Act.

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Learned counsel for the petitioner submits that under Section 32 of the Drugs and Cosmetics Act, the police does not have the power to register a case for an offence under the Drugs and Cosmetics Act. He further submits that special procedure has been prescribed and it is only the Drug Inspector, who can institute the case for an offence allegedly committed under the

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provisions of the Drugs and Cosmetics Act. He, therefore, submits that neither the FIR nor the charge sheet could have been filed under Section 18 of the Drugs and Cosmetics Act against the petitioner. He also submits that the learned Special Judge has over looked the express provision of Section 32 of the Drugs and Cosmetics Act while dismissing the application of the petitioner for discharge.

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In support of his contention, learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Union of India Vs. Ashok Kumar Sharma , 2020 SCC Online 683.

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On the other hand, Sri Ashwani Kumar Singh, learned AGA has submitted that it is true that police does not have power to register an FIR on the basis of a complaint of the police officer under Section 18 of the Drugs and Cosmetics Act inasmuch as Section 32 of the Drugs and Cosmetics Act bars for taking cognizance for an offence under the Drugs and Cosmetics Act except on a complaint instituted by an Inspector or a person aggrieved or by a recognized consumer association. He, therefore, submits that the proceedings under Section 18 of the Drugs and Cosmetics Act may not be maintainable against the petitioner, but the offences under Sections 274, 275 and 276 IPC are offences under the IPC and the police has all the power to register an FIR and file the charge sheet against the petitioner. He further submits that at the time of framing of the charge, the petitioner may contend that the offence under Section 18 of the Drugs and Cosmetics Act cannot be proceeded with and the concerned court may not frame the charge for offence under the said section and may sent the case to the competent court for trying the petitioner for offences under Sections 274, 275 and 276 IPC.

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I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the record.

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It is true that Section 32 of the Drugs and Cosmetics Act provides that cognizance cannot be taken for an offence under Section 18 of the Drugs and Cosmetics Act except under the procedure as prescribed under Section 32 of the Drugs and Cosmetics Act. Section 32 of the Drugs and Cosmetics Act does not provide that the complaint cannot be lodged by a police officer in respect of an offence under the Drugs and Cosmetics Act. However, there is no bar for lodging the FIR and investigating the offence if the accused has committed other offences under the Indian Penal Code besides the offence under the Drugs and Cosmetics Act.

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In paragraph 150 of the judgement in the case of Union of India Vs. Ashok Kumar Sharma (supra) relied upon by the learned counsel for the petitioner, the Supreme Court has summarized the conclusion in respect of such a case, which reads as under:-

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“ 150. Thus, we may cull out our conclusions/directions as follows:-

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I. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the 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.

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II. 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.

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III. Having regard to the scheme of the 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 Police Officer cannot register a FIR under Section 154 of the CrPC, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the CrPC.

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IV. 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,

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however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of CrPC.

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V. It would appear that on the understanding that the Police Officer can register a 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 Inspectors, 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.

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VI. 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.

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VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the CrPC, but also immediately report the arrests to their superior Officers.”

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Thus, the said judgement itself provides that the police is not barred from its power to lodge an FIR and investigate the offence if the offences are committed under the IPC besides under the Drugs and Cosmetics Act.

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In view thereof, I do not find much substance in the submission of learned counsel for the petitioner.

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This petition which is even otherwise not maintainable as the petitioner has filed the petition under Section 482 Cr.P.C. against the order rejecting the discharge application, is dismissed . Petitioner is directed to appear before the trial court and argue at the time of framing of the charge that cognizance for an offence under Section 18 of the Drugs and Cosmetics Act cannot be taken by the police.

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Order Date :- 7.7.2022 Rao/-

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Digitally signed by CHEBROLU SRINIVASA RAO Date: 2022.07.11 13:52:00 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Maan Singh v. State of U.P. Thru. Prin. Secy. Home Lucknow and Anr.

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Maan Singh v. State of U.P. Thru. Prin. Secy. Home Lucknow and Anr.

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