Case: Rajkumar & Others Vs. The State of Maharashtra & Others

1. Both the proceedings are filed for the relief of quashing of FIR No. 176/2018 registered with Kranti Chowk Police Station, Aurangabad for the offences punishable under Sections 464,465, 468, 469, 471, 473, 476 read with Section 34 of the Indian Penal Code and Section 18(c)(vi) and 27(d) read with Rules 65(5) of the Rules Frames under the Drugs and Cosmetic Act 1940.2. Both the sides are heard.3. The applicants from the first proceedings are partners of Pharmaceutical Shop and they are in wholesale business of medicines of many Companies. They were doing this business in the name and style as Manish Agency at Aurangabad. The applicant from second proceeding is a Medical Representative and he was working for manufacturing Company Biocon Limited.4. The crime is registered on the basis of report given by a Drug Inspector Shri. Nimse. There was specific information against Manish Agency to the department that it was creating false record of sale in the name of Doctors and Retailers and it was selling medicines to third party. Shri. Nimse visited Manish Agency business place with staff on 01.08.2017 and inspected the record.5. During the inspection the Drug Inspector came across some bills of sale which were suspicious. Inquiry was made with the purchasers shown in the bills and inquiry revealed that those persons had not placed any order with Manish Agency and no medicines were supplied to them. After that, inquiry was made with the applicant of first proceeding and then the applicant admitted in the writing that those bills were prepared by them but the medicines were not actually sold to the persons shown on the bill. These medicines were collected by the Manish Agency from Manufactures like Biocon Limited and Dr. Reddys Lab Limited.6. On the basis of the record collected from Manish Agency, Drug Inspector made more inquiry and inquiry revealed that the Medical Representative of aforesaid two companies were also involved in creation of false record of sale. They had joined hands with Manish Agency. One such representative is the applicant of the second proceeding.7. In the report given by the Drug Inspector many bills prepared in false names are mentioned like four bills in the name of Dr. Shaikh Murtuja of Aurangabad, four bills in the name of Mohan Medico and General Store of Aurangabad, three bills in the name of Rathi Medical, two bills in the name of New Varun Medical, two bills in the name of Vishnu Priya Medical, some bills in the name of Mahavir Medical of village Pimpari Raja, few bills in the name of New Life Medical etc. Inquiry was made with these persons also and it revealed that they had also not placed the orders and no medicines were supplied to them by the Manish Agency. There were some stamps on the bills of the purchase and the said persons who were shown as purchasers made it clear that those stamps were not belonging to them the stamps were not used by them, the stamps were not used by them.8. On further inquiry, applicants of the first proceeding admitted that the medicines were not actually supplied to all those persons and concerns shown in the bills, prepared by the applicants. However, they contended that stamps appearing on some purchase bills were not put by them and they blamed the Medical Representative by contending that they had handed over these bills to the two Medical Representative and they probably used false stamp.9. Inquiry was made with aforesaid two Medical Companies by Drug Inspector. The company Biocon Ltd supplied information that aforesaid record in the names of the persons mentioned in the bill as purchaser was supplied to it by Manish Agency. Statements were given by the employees and in the writing also this say of the manufacturing company was obtained. Dr. Reddys Company however, did not supply any information and it is also made accused.10. The applicants of the first proceeding, (Manish Agency) have produced some record like photo copies of some bills in the present proceeding and the learned counsel for them submitted that on those photo copies there were no stamps and such bills were handed over by Manish Agency to the Medical Representatives. It is already mentioned that the bills in the names of as many as 21 customers are mentioned in the FIR. It was submitted for Manish Agency that though such bills were prepared, they were credit bills and as the purchasers shown on the bills did not make payment, the medicines were not supplied to them. It was submitted that the medicine shown in those bills were then sold to others. This submission cannot be considered at any stage of the matter in view of the specific provisions of the aforesaid special enactment. On the bills collected by the Drug Inspector, in writing also the applicants admitted that these bills (Memos) were raised by them. Thus it was sale transaction though on credit and it was completed as the bills were issued by these applicants. There is one more circumstance like information supplied by the Biocon Limited that such record was supplied to it by Manish Agency and record also shows that medicine supplied by it to Manish Agency were sold to the retailers by Manish Agency.11. If the submission made by the learned counsel for the Manish Agency is considered that creates one more probability. Probability created is that the medicine of the same batch number were sold to the different persons and there is the possibility that more medicines were actually manufactured than the record of batch number created by the manufacturing Company. The investigating agency needs to look into such probability also. In any case the aforesaid record is not consistent and admittedly the bills on which the Drug Inspector is relying were not true and correct bills. That record was created as per the provisions of the Special Enactment Act and Rules. Manish Agency has made specific allegation against the Medical Representatives that the bills were handed over to him and he probably used stamp of the purchaser and so it cannot be said that Medical Representative had not played any role in this matter. Unfortunately specific information regarding purpose for which the medicine mentioned in this record was not produced to the Court. Thus on merits, it is no possible to quash the FIR in respect of the applicants from both the proceedings.12. On law point it was submitted that by creation of such record no loss is caused to anybody by Manish Agency and so no offence is committed. This submissions is not acceptable. Firstly when admittedly record is false and it was to be used as per the provision of the Act, there is clear breach of the provision of the Act and Rules 65(5) of the Rules. Thus due to this admission offence under those provisions is made out. Secondly there is deceiving to State exchequer by such wholesalers by joining hands with the Manufacturing Company. The department is deceived by creating such false record already. Thus it cannot be said that there was no intention to make wrongful gain behind the preparation of this record. As the record is admittedly false, the provisions made for the offence of forgery can be used.13. The learned counsel for the applicant submitted that at the most there is only breach of the provision of Section 18(vi) of the Special Enactment and punishment for it is only two years, as provided in Section 27 (d) of the Act. The learned counsel submitted that the provision of Section 36 (a)(c) shows that only offences mentioned in Section 36(a)(c)(a) are cognizable. The learned counsel for the applicants submitted that Section 32 of the Act provides that no prosecution under the provisions of the Act can be instituted otherwise then by filing proceeding as laid down in the Section 32. The relevant portion of provision of Section 32 of the Act is as under:Cognizance of offences (1) No prosecution under this Chapter shall be instituted except by -(a) 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 by a general or special order made in this behalf by that Government or(c) the person aggrieved or(d) a recognized 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.14. The plain reading of the aforesaid provision shows that only when offence is committed by breach of the provisions of Chapter IV of the Act the restriction is applicable. Further, the provision of Section 32(3) shows that prosecution under any other law is possible if the same act amounts to offence under any other law. Further, the provision of section 2 of the Act is as under:Application of other laws not barred - The provisions of this Act shall be in addition to, and not in derogation of, the Dangerous Drugs Act, 1930 ( 2 of 1930), and other law for the time being in force.15. This provision also shows that the provisions of other Act remain applicable even if there is breach of the provisions of the Act.16. The facts of the present matter show that cognizable offence under the provision of Indian Penal Code, Section 420, 467,etc is committed and those provisions can be used against the applicant. Thus, there is no force in the objection raised by the applicants that the crime could not have been registered on the basis of report given by Drug Inspector. Further, this report will be with charge sheet which is to be filed before the Criminal Court.17. The learned counsel for the applicants placed reliance on some observations made by this Court in the [Criminal Writ Petition No. 846 of 2016, Rajendra Madhav Pate Vs. The State of Maharashtra and Others] decided on 03.10.2016. The facts of this case show that the FIR was given only in respect of the offence committed under the Act and there was no offence under provisions of Indian Penal Code. Reliance was placed on the observation made in other cases like Mahendra S/o Kanhaiyyalal Jain Vs. Vivek Manohar Jagtap and others 2010 All MR . (Cri) 742 ( Aurangabad Bench) Parminder Kaur Vs. State of Uttar Pradesh and Another 2010 ALL MR (Cri) 332 (Suprme Court) The facts of both these cases were totally different and so these cases are not helpful to the applicants.18. On the other hand the learned A.P.P produced copy of order made by this Court in Criminal Application No. 1166 of 2018 Sushilkumar S/o Kishanlal Modhok Vs. The State of Maharashtra and others decided on 27.06.2018. In this case, there was allegations of cheating under Section 420 of the Indian Penal Code along with other provisions of IPC and some provision of Chapter IV and V of the Act were mentioned in the FIR. In this case, this Court held that the crime was rightly registered on the basis of report given by the Drug Inspector. Reliance was also placed on decision given by the Supreme Court in Criminal Appeal No. 1195 of 2018 (State of Maharashtra and Others Vs. Sayyed Hassan Sayyed Subhan and others). The facts show that the crime was registered under the provisions of Food Safety and Standard Act 2006 and also the provision of the IPC like Section 272 and 328. Following points were involved in the matter.(i) Whether the Food Safety Officers can lodge complaints for offences punishable under the IPC(ii) Whether the acts complained amounted to any offence punishable under the provisions of the IPCThe Apex Court held that there is no bar to prosecute persons under Indian Penal Code if cognizable offence is made out even if the offence under the Food Safety and Standard Act is committed. The cases like State of NCT of Delhi Vs. Sanjay with Jaysukh Bavanji Shingalia Vs. State of Gujarat and another with Malabhai Shalabhai Rabari And others Vs. State of Gujarat and Others with Kalubhai Dulabhai Khachar Vs. State of Gujarat and another And Sondabhai Hanubhai Bharwad Vs. State of Gujarat and Another AIR 2015 Supreme Court 75 were referred by the Apex Court for deciding this case. That case was on different provisions of different Act but in that case also the Apex Court has laid down that if there is no specific bar, the cognizance can be taken by the police on the basis of FIR if cognizable offence is committed.

Decision:
1[ds]10. The applicants of the first proceeding, (Manish Agency) have produced some record like photo copies of some bills in the present proceeding and the learned counsel for them submitted that on those photo copies there were no stamps and such bills were handed over by Manish Agency to the Medical Representatives. It is already mentioned that the bills in the names of as many as 21 customers are mentioned in the FIR. It was submitted for Manish Agency that though such bills were prepared, they were credit bills and as the purchasers shown on the bills did not make payment, the medicines were not supplied to them. It was submitted that the medicine shown in those bills were then sold to others.This submission cannot be considered at any stage of the matter in view of the specific provisions of the aforesaid special enactment. On the bills collected by the Drug Inspector, in writing also the applicants admitted that these bills (Memos) were raised by them. Thus it was sale transaction though on credit and it was completed as the bills were issued by these applicants. There is one more circumstance like information supplied by the Biocon Limited that such record was supplied to it by Manish Agency and record also shows that medicine supplied by it to Manish Agency were sold to the retailers by Manish Agency.11. If the submission made by the learned counsel for the Manish Agency is considered that creates one more probability. Probability created is that the medicine of the same batch number were sold to the different persons and there is the possibility that more medicines were actually manufactured than the record of batch number created by the manufacturing Company. The investigating agency needs to look into such probability also. In any case the aforesaid record is not consistent and admittedly the bills on which the Drug Inspector is relying were not true and correct bills. That record was created as per the provisions of the Special Enactment Act and Rules. Manish Agency has made specific allegation against the Medical Representatives that the bills were handed over to him and he probably used stamp of the purchaser and so it cannot be said that Medical Representative had not played any role in this matter. Unfortunately specific information regarding purpose for which the medicine mentioned in this record was not produced to the Court. Thus on merits, it is no possible to quash the FIR in respect of the applicants from both the proceedings.On law point it was submitted that by creation of such record no loss is caused to anybody by Manish Agency and so no offence is committed.This submissions is not acceptable. Firstly when admittedly record is false and it was to be used as per the provision of the Act, there is clear breach of the provision of the Act and Rules 65(5) of the Rules. Thus due to this admission offence under those provisions is made out. Secondly there is deceiving to State exchequer by such wholesalers by joining hands with the Manufacturing Company. The department is deceived by creating such false record already. Thus it cannot be said that there was no intention to make wrongful gain behind the preparation of this record. As the record is admittedly false, the provisions made for the offence of forgery can be used.The plain reading of the aforesaid provision shows that only when offence is committed by breach of the provisions of Chapter IV of the Act the restriction is applicable. Further, the provision of Section 32(3) shows that prosecution under any other law is possible if the same act amounts to offence under any other law.15. This provision also shows that the provisions of other Act remain applicable even if there is breach of the provisions of the Act.16. The facts of the present matter show that cognizable offence under the provision of Indian Penal Code, Section 420, 467,etc is committed and those provisions can be used against the applicant. Thus, there is no force in the objection raised by the applicants that the crime could not have been registered on the basis of report given by Drug Inspector. Further, this report will be with charge sheet which is to be filed before the Criminal Court.