Petitioner sought ₹5 lakh compensation claiming harassment due to a Drug Inspector filing a complaint under the Drugs and Cosmetics Act without conducting a raid or following mandatory provisions, alleging mala fide intentions and violation of Article 21.
Writ petition dismissed; no compensation awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5699 of 2009
====================================================== Gyan Prakash S/o Late Bansihar Prasad resident of Muhalla Babunia Road P.S. Siwan Dist Siwan
.... .... Petitioner/s Versus 1. The State of Bihar 2. The Secretary, Department of Health, Government of Bihar, Patna 3. The Deputy Drug Controller-cum- Chief Licensing Authority, Directors of Health Service, Bihar, Patna
.... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Raghav Prasad I, Advocate For the State: Mr Manoj Kr. Ambastha GP 14 Mr Tripurari Nath Ambastha, AC to GP 14 For the Respondent 5 : Mr. Suraj Samdarshi, Advocate
====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER
10 24-07-2014 1. Heard learned counsel for the petitioner as well as learned counsels appearing for the State and private respondent.
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that Sub Inspector of Town Police Station Siwan recorded his self statement on 22.10.2002 and on the basis of the aforesaid self statement, Siwan Town PS. Case No. 165/2002 under Sections 269, 270, 271, 274, 275, 276, 419, 420, 468, 470, 471, 475 of the IPC and 18 ( c )18 A of the Drugs and Cosmetics Act, 1940 was registered against the petitioner and four other named persons as well as 50 to 60 unknown persons. The aforesaid case was investigated and after completion of investigation, charge sheet was submitted. Subsequently, cognizance of the offence was also taken and petitioner and other accused were put on trial before the concerned court. In the meantime, respondent no 5 who was posted at Siwan as Drug Inspector filed Complaint Case No. CII207/2003 against the petitioner and others and in the aforesaid complaint case respondent no. 5 averred that on 22.10.2002 Sub Inspector of Town police station, Siwan conducted raid and seized spurious and adulterated drugs and subsequently, lodged Siwan Town PS. Case No. 165/2002. It has further been averred in the complaint petition that he was called by the officer in charge of Town Police Station and information regarding institution of the aforesaid case was given and thereafter, he discussed the aforesaid fact with the superior officers and gave information to the Drug Controller, Bihar, Patna vide letter no. 709 dated 28.10.2002 and,
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thereafter, Secretary cum Deputy Drug Controller, Bihar, Patna ordered to launch prosecution against the petitioner and others vide letter no. 1466 (15) dated 12.12.2002 and accordingly, sanction letter was also issued and thereafter he consulted Public Prosecutor, Siwan and the Public Prosecutor vide letter no. 83 dated 27.03.2003 advised him to launch prosecution and thereafter he filed the above stated complaint case under Section 32(1) of the Drug and Cosmetics Act,1940. The court concerned took cognizance of the offence on the basis of the aforesaid complaint case.
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respondents, filed the above stated complaint case with mala fide intention just to save the skin of the police who illegally lodged the case against the petitioner. Learned counsel refers a decision
reported in 2000(2) PLJR, 324 (Core Health Care Limited, Ahmedabad vs. The State of Bihar & Ors.) and relies upon paragraphs 18 and 19 of the aforesaid judgment. Para 18 of the aforesaid judgment runs as follows:-
“Therefore, it is incumbent upon the Inspector while purporting to carry on inspection, test and analysis of the drug in question, to send a notice either to the petitioner Company or to its agent mentioned in paragraph 5 and also to send a sample of the same. A report has also to be sent to either the petitioner Company or its Agent mentioned in paragraph 5 of the writ petition. Admittedly, the said procedure has not been followed. Therefore, the entire procedure relating to seizure and analysis and test of the drugs in question have been made in a manner which is not contemplated in law”.
Para 19 of the aforesaid judgment runs as follows:-
“These detailed procedures have been made under the provisions of the said Act with a purpose. The purpose is to give sudden safeguards to the manufacturer of the drugs in question from frivolous
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complaints. The other purpose is to fix the responsibility upon persons who are engaged in spurious manufacture of drugs and it is expected that when those provisions have been made they should be followed by the authorities of the State before taking any punitive action against any offender who is alleged to be manufacturing spurious drugs. But in the instant case, those provisions have been completely violated. Having done so, the State cannot fasten on the petitioner Company the allegation of manufacturing spurious drugs”.
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petitioner.
reported in 1965 SC 1039 (M/s. Kasturi Lal Ralia Ram Jain vs. the State of Uttar Pradesh ) and particularly refers paragraph 21 of the judgment which runs as follows :-
“Thus, it is clear that this case recognizes a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a
Patna High Court CWJC No.5699 of 2009 (10) dt.24-07-2014
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public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servants? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State’s liability arising from tortious acts committed by public servants. That is why the clarity and precision with which this distinction was emphasized by Chief Justice Peacock as early 1861 has been recognized as a classic statement on this subject”.
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raid, search and seizure and without complying with the mandatory provisions of the Drugs and Cosmetics Act, 1940 filed the above stated complaint case but the averments of the complaint petition reveal that higher official permitted and granted sanction for prosecution of the petitioner and others and in pursuance thereof, respondent no.5 filed the above stated case.
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Siwan Town PS. Case No. 165/2002.
Shahid/-
(Hemant Kumar Srivastava, J)
U
3 issues framed by the court
Whether compensation is payable to a petitioner for harassment from a complaint filed under the Drugs and Cosmetics Act without following mandatory inspection provisions.
Whether an inspection officer is liable for damages when filing a prosecution complaint based on a police FIR without conducting a raid.
Section 37 exceptions for good faith acts done under the Drugs and Cosmetics Act.
Colour shows how this judgement treated each authority
Core Health Care Limited, Ahmedabad vs. The State of Bihar & Ors.Referred¶25
2000(2) PLJR, 324
M/s. Kasturi Lal Ralia Ram Jain vs. the State of Uttar PradeshRelied on¶37
1965 SC 1039
2 provisions across 2 enactments
Gyan Prakash
The State of Bihar
The Secretary, Department of Health, Government of Bihar
Deputy Drug Controller-cum-Chief Licensing Authority, Directors of Health Service, Bihar
Drug Inspector, Civil Surgeon office, Siwan
Sri Prem Ranjan
Hemant Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
