IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.56404 of 2006 BAIDYANATH PRASAD @ BAIDYANATH SAH, SON OF LATE MAHADEO SAH, RESIDENT OF HENARY BAZAR ( MOTIHARI), P;.S. MOTIHARI SADAR, DISTT. EAST CHAMPARAN .................... PETITIONER Versus 1. STATE OF BIHAR 2. SRI DEEPAK KUMAR, EXCISE INSPECTOR, MOTIHARI, EAST CHAMPARAN......................................... OPP. PARTIES. ------------- 4 5-2-2010 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner is being prosecuted for offence under section 7 of the Medicinal and Toilet Preparations ( Excise Duties), Act, 1955 (hereinafter referred to as the `Act’) on the allegation that he had stored for sale Ayurvedic medicines/ medicinal preparation without any licence. From the materials on record it appears that a raid was made by the officials of the Excise Department in the shop of the petitioner at Motihari on 11-2-1997 and some cartoons of Shakti Sanjeevani Sura and Ras Drakshasaw were detected and seized. Subsequently, on prosecution report being submitted, Excise Case No. 31 of 1997 was instituted against the petitioner in which cognizance has been taken on 31-3-2000 under section 7 and 52 of the Act. There is no section as section 52 in the Act and the reference to the Act appears to be a mistake in place of rules framed under the Act. It is not in dispute that on the prayer of the petitioner and on his producing relevant documents, the seized medicinal preparations/medicines were released in his favour by order of the - 2 - learned Judicial Magistrate, Motihari dated 21-8-1997. In the year 2006 a petition was filed on behalf of petitioner for discharge from the criminal case which has been rejected by the impugned order dated 14-9-06. From the records it appears that the trial number of the case is 572 of 2005 and against the order of refusal to discharge the petitioner he has preferred this quashing application under section 482 of the Code of Criminal Procedure. The only issue falling for determination is whether on the sale of Ayurvedic medicines prepared by a licensed manufacturer under the Act, a retail seller like the petitioner was required to have a licence either for storage or for retail sale. On going through the provisions of the Act as well as the rules no such provision could be detected. Section 7 of the Act enumerates the various possible offences under the Act but it does not mention that retail sale without licence is an offence. Rule 52 of the Rules framed under the Act no doubt mentions in the “Heading” that manufacture, storage and sale to be carried on only in the licensed premises but it is clearly only in respect of non-bonded manufactory, applicable to a licensed manufacturer and not a retail dealer. In absence of any provision in the Act or in the Rules imposing the requirement of having a licence for retail sale of Ayurvedic medicines, the submission on behalf of the petitioner must be accepted that he is being prosecuted on allegations which do not constitute any offence under the Act. In that view of the matter the prayer for quashing the criminal case against the petitioner is - 3 - naresh allowed.and the criminal case in question against the petitioner is hereby quashed. This application stands allowed. ( Shiva Kirti Singh,J)