Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.238 of 2007 =========================================================== Dhirendra Kumar Singh @ Gopal Singh son of Late Sukhdeo Singh, resident of Village-Matiara, P.S. Sarai, Distt-Vaishali. .... .... Petitioner/s Versus 1. State Of Bihar thru the Secretary, Department of Home (Police), Government of Bihar, Patna. 2. The Superintendent of Police, Vaishali. 3. Officer-in-Charge, Sarai P.S. Distt-Vaishali at Hajipur. 4. State Drugs Controller-cum-Chief Licensing Authority, Bihar, Patna. .... .... Respondent/s =========================================================== Appearance : For the Petitioner/s : Mr. Rajesh Kumar, Advocate For the Respondent/s : Mr. A.K. Pandey, GA-9 Mr. Pawan Kr. Chaudhary, AC to GA-9 =========================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV JUDGMENT Date: 14-02-2012 Petitioner Dhirendra Kumar Singh @ Gopal Singh has filed instant writ for quashing of FIR of Sarai (Vaishali) P.S. Case No. 89/2006 registered under [STATUTE] , 47(A) of the Excise Act along with investigation. 2. For proper appreciation of the submission raised on behalf of respective parties, brief facts of the case is to be incorporated which happens to be registered on the basis of self statement of S.I., Faiz Ahmad Khan, O/C of Sarai P.S. recorded on 24.8.2006 at 4:00 A.M.. 3. As per Fardbeyan, the informant had alleged that he received confidential information on 23.8.2006 at about 22.35 hours regarding running of illegal wine shop at Old Hand-pipe Factory over 2 which a raiding party was constituted and after entering into station diary, they proceeded and conducted raid. They found board of M/s Dee Indo German Laboratory at the gate of premises. After entering inside, they found one Mahindra pickup van bearing Registration No. BR-31B-4467 laden with cartoon. Five persons were apprehended who disclosed their identity as Baijnath Singh, Mahesh Singh, Birendra Kumar Ram, Arvind Kumar Tiwari, Ajit Kumar Singh. On search, 120 cartoons of bottle filled with liquid having label of Dr. Special and from campus 40 cartoons Jeevan Vardhak Tonic and other bottles duly sealed, plastic phial, labels of different Homeopathic medicine, spirit, machine, seal, empty container, registers were seized. On query, the apprehended persons disclosed that all the bottles are filled with country made wine. Further, they disclosed that they are employees as well as driver of the pickup van. Further disclosed name of petitioner as owner of the premises and so, he alleged that under the garb of manufacturing of Homeopathic medicine, spurious wine is being manufactured and sold. 4. It has been contended on behalf of the petitioner that the whole search and seizure followed with registration of the case is an outcome of arbitrary action of the informant. Further submitted that petitioner happens to be a licensee of manufacturing of Homeopathic medicine duly granted by the competent authority (Annexure-1) and 3 whatever seizure has been made from the premises, happens to be Homeopathic medicine as well as component thereof and therefore, launching of prosecution at the behest of informant is nothing but a malicious one. Also submitted that from Annexure-1, it is evident that petitioner’s firm has been granted license to manufacture 104 items. Then referring to Homeopathic Pharmacopoeia of India, it has been submitted that to manufacture of Homeopathic medicine, three forms of preparation has been identified (A) solution in water, alcohol, or in mixtures of alcohol and water in varying proportions in either Glycerin or Syrup (B) Trituration and potencies with sugar of milk. (C) Potencies with alcohol. And accordingly, as the aforesaid items have been identified as solvent therefore, during course of preparation of medicine, it is required and for that purpose, storage is being made. Therefore, presence of all those solvent within the premises is not a strange one rather being the component, its presence is but natural. Then it has been submitted that happens to be the reason behind that in spite of having seizure and institution of a case made in the year 2007, no Forensic report has yet been furnished to suggest that the items so seized as per seizure list happens to be spurious wine. 5. It has further been submitted that petitioner possesses proper and valid license in accordance with Drugs and Cosmetic Act 1940 duly issued by the competent authority then in that event, if the 4 informant was apprehensive of any illegal act should have at least informed the Drug Inspector who would have joined him during course of raid and further would have distinguished the seized item whether it happens to be a Homeopathic medicine or spurious wine. Also submitted that even accepting the prosecution case for argument’s sake, possession of seized items were under the banner of license granted under Drugs and Cosmetic Act and having violation of any of its clauses attract prosecution only being launched by a Drug Inspector that too by way of filing of complaint as provided under Section 32 of the Act. Therefore, it has been submitted that neither Section 41A of the Excise Act is applicable in the facts and circumstances of the case nor any of the other provisions of penal law. As such, instant prosecution, if allowed to continue will be nothing but an abuse of process of the Court. 6. The learned GA-9 refuted the submission raised on behalf of the petitioner and submitted that there happens to be a prima facie material by way of fardbeyan regarding illegal activity of the petitioner indulging in spurious wine under the garb of license for manufacturing of Homeopathic medicine. Also submitted that the matter is still being investigated and so the Court should refrain from substituting itself as an Investigating Authority to come to a definite conclusion accepting the plea of petitioner. Fairly submitte

Applicable IPC Section: 488

Statute Text:
Section 488 of the Indian Penal Code. Making use of any such false mark. Whoever makes use of any such false mark in any manner prohibited by the last foregoing section shall, unless he proves that he acted without intent to defraud, be punished as if he had committed an offence against that section.