STATE OF KERALA v. ORISON J FRANCIS & ANR

Citation: [2008] 15 S.C.R. 428

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, C.K. THAKKER, LOKESHWAR SINGH PANTA

Case summary

STATE OF KERALA v. ORISON J FRANCIS & ANR.pdf

Judgment text

[2008] 15 S. C. R. 428 STATE OF KERALA v. ORISON J FRANCIS & ANR. (Criminal Appeal No. 1723 of 2008) NOVEMBER 4, 2008 [DR. ARIJIT PASAVAT, C. K. THAKKER AND LOKESHWAR SINGH PANTA, JJ. ] Drugs and Cosmetics Act, 1940 - ss. 3(a), 3(b) and 18 (c) rlw 27(b)(ii) - Complaint that Respondents were manufacturing, selling and storing drugs within definition of s. 3(b), without requisite licence - Proceedings in Court of Judicial Magistrate - Respondents filed petition under s. 482 CrPC contending that the drugs seized belonged to o "Ayurvedic" category which are dealt with under s. 3(a) and not under s.

3(b) and hence the said complaint could not have been filed - High Court quashed proceedings instituted v against the Respondents - On appeal, held: Whether the goods seized were Ayurvedic Drugs or not could only be decided in trial - Additionally Respondents did -not possess the requisite licence - Mere fact that application for licence was filed, did not entitle Respondents to manufacture and/or to sell the concerned drugs - High Court, therefore, was not justified in quashing the proceedings - Threshold interference by High Court in exercise of power under s. 482 CrPC was not called for in the facts and circumstances of the case - Code of Criminal Procedure, 1973 - s. 482. Pursuant to a complaint under s. 18(c) rlw s. 27(b)(ii) of the Drugs and Cosmetics Act, 1940, proceedings were instituted against the accused- Respondents in the Court of Judicial Magistrate. It was alleged that the Respondents were manufacturing, selling and storing i drugs within definition of s.

3(b), without requisite licence. .. Respondents filed petition under s. 482 of CrPC inter alia contending that the drugs seized belonged to "Ayurvedic" category which are dealt with under s. 3(a) and not under s. 3(b) and consequently the said complaint could not have been lodged. 8 Appellant, on the other hand, contended that th~ dispute as to whether the goods seized were Ayurvedic Drugs or not could only be decided in trial and threshold interference by the High Court was not called for, Additionally it was submitted that since Respondents did not possess licence, the High Court had no power of interference. The High Court quashed the proceedings instituted, against the Respondents in the Court of Judicial Magistrate. Hence the present appeal. Allowing the appeal, the Court L HELD: Whether the goods in question are Ayurvedic drugs is essentially a matter for trial. Also, 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. The present case ! does not belong to any of the categories given by this Court in Bhajan Lal's case by way of illustration wherein power under Article 226 of the Constitution or inherent powers under s. 482 of CrPC can be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice [Paras 6, 7, 8 and 9] [432-D; ~ 433-A, B; 433-D, E] ) State of Haryana v. Bhajan Lal (1992) Supp 1SCC 335, relied on. Case Law Reference: (1992) Supp 1 sec 335 relied on Para 8 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1723 of 2008. From the final Judgment and Order dated 7. 11.

2006 of the High Court of Kerala at Ernakulam in Criminal M. C. No. 1135 of 2006. :, R. Sathish for the Appellant. S. K. Agarwal, Arun K. Sinha and Rakesh Singh for the Respondents. The Judgment of the Court was delivered by 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 l in the Court of Chief Judicial Magistrate, Ernakulam. 3. Background facts in a nutshell are as follows: 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 j 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 Jopetition under Section 482 of the Code of Criminal Procedure, J_ . 1973 (in short the 'Code') was filed by the accused No. 1 and 3 wh. o are respondents 1 & 2 in the present appeal. Basic - . A stand before the High Court was thatthe 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 respect to Allopathy Drugs. Acco~ding to the accused the article sold was food supplement and at best is only an Ayurvedic proprietary drug.

The Drug Department of I '" 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. Hehce, 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 tl"ilem, gazette notification and the letter of appointment of the complainant/Drug Inspector are insufficient to satisfy Seytion A 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 ) 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. _, J (2) Where the allegations in the first information report and other materials, if any, accompanying the ... ~ -- ' r FIR do . not discl9se a cognizable offence.. ju~tifying ;..... an invest. igation by police office~s under Secti~n . 156(1) . of the, Code except under a,n o. rder of a Magistrate within the purview of Section 155(2) of . . - ' the Code. (3) Where the uncontroverted allegations ma·de in the FIR or complaint and the evidence. collected in support of the same do not dis"close 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 r permitted by a police officer withou·t an order of a t.. 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. (6) Where there is ~n 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. B. B. B. Appeal allowed. j. -' ~ ~ -·