IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.50246 of 2006 ***** Against the order of quashing dated 09.10.2006, passed in Case No. G.R. No. 1090 of 2006 / Trial No. 2836 of 2006 arising out of Sasaram (T) P.S. Case No. 347 of 2006 by the learned Chief Judicial Magistrate, Rohtas at Sasaram. Om Prakash Singh, Son of Late Ram Awatar Singh, Resident of Mohalla – Gaurakshani, P.S. Sasaram (T), District – Rohtas. .... .... Petitioner. Versus 1. The State of Bihar .... .... Opposite Party. 2. Vikash Shiromani, Drugs Inspector, Drugs Control Administration Rohtas (Sasaram), P.S.-Sasaram (Nagar), Distt. – Rohtas. Appearance : For the Petitioner : Mr. Sudama Singh, Mr. Rajnikant Singh, (Advocates). For the Opposite Party : Mr. Ashwini Kumar Sinha (APP). ***** CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J. This matter has been referred to the Division Bench by order dated 04.01.2008 as the Learned Single Judge has questioned the decision in the case of “Hindustan Lever Ltd. Vs. The State of Bihar & Ors” reported in 1997 Bihar Law Judgment Page 899. 2. The matter relates to interpretation of Section 32 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the „Act‟). The contention on behalf of the petitioner is that the First Information Report cannot be instituted for any offence arising out of the Drugs and Cosmetics Patna High Court Cr.Misc. No.50246 of 2006 dt.09-08-2011 2 Act. In view of the provisions of the Act and in view of the provision of Section 4 (2) of the Code of Criminal Procedure. 3. The Learned Single Judge in the order dated 04.01.2008 has specifically referred to the meaning and interpretation of the term „prosecution‟ used in Section 32 of the Act. 4. Before referring to the legal aspects of this case we may sort out the facts arising out of this case. The petitioner is a doctor and was running a dispensary. The Drugs Inspector searched his dispensary and found that certain medicines were being sold by the petitioner, for which the petitioner has not been able to produce the purchase bills and sale bills. It is also alleged that the godown of the doctor, was not in a good condition, and that medicines were stocked in unhygienic conditions. It was further alleged that the petitioner had stocked prohibited medicines. The Drugs Inspector seized the medicines etc. and sent them for verification. After conducting the raid and seizure, a written report was submitted by the Drugs Inspector to the Officer-in-Charge of the Police Station who instituted the First Information Report numbered as Sasaram (T) P.S. Case No. 347 of 2006 dated 03.08.2006. Patna High Court Cr.Misc. No.50246 of 2006 dt.09-08-2011 3 5. Learned Counsel appearing in this case has argued that the First Information Report instituted by the Officer-in-Charge is not at all in accordance with the Act, it has been submitted that it was only the Drugs Inspector or the authorized agent under Section 32 of the Act who can institute a case by way of filing a complaint. The learned Single Judge has referred the matter to the Division Bench on the ground that the word „prosecution‟ has been given a limited meaning in the judgment of “Hindustan Lever Ltd. Vs. The State of Bihar & Ors” reported in 1997 Bihar Law Judgment Page 899 and that there is nothing in the Act which bars the institution of the First Information Report. 6. This Court shall consider the scheme of the Act, the provisions of Section 4(2) of the Code of Criminal Procedure and the meaning of the word „prosecute‟ before forming an opinion regarding the correctness of the decision rendered in “Hindustan Lever Ltd. Vs. The State of Bihar & Ors” (Supra). 7. The word „prosecute‟ as defined in the Chambers Dictionary means “to follow onwards or pursue, in order to reach or accomplish: to engage in, practice: to follow up: to pursue, chase: to pursue by law: to bring before a court i.e. to Patna High Court Cr.Misc. No.50246 of 2006 dt.09-08-2011 4 carry on a legal prosecution. Black‟s Law Dictionary defines „prosecution‟ as the commencement and carrying out of any action or scheme (i) commencement carrying out (ii) A criminal proceeding in which accused persons is tried. There is no doubt about the fact that the „prosecute‟ means to institute and pursue a criminal action. The question before us is that who would entitle to pursue the criminal action ? The answer obviously would be the „prosecutor‟. A „prosecutor‟ has been defined in Black Dictionary as “a legal officer who represents the State or federal Governments in criminal proceedings”. Special prosecution is defined as “a lawyer appointed to investigate and, if justified, seek inducements in a particular case”. As also, “A private person who institutes and carries on a legal action, esp., a criminal action”. 8. To decide this issue, this Court would first like to refer to Section 22 of the Act, which describes the powers of the inspector. The Section provides as follows : (c) at all reasonable times, with such assistance, if any, as he considers necessary, - (i) search any person, who, he has Patna High Court Cr.Misc. No.50246 of 2006 dt.09-08-2011 5 reason to believe, has secreted about his person, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed; or (ii) enter and search any place in which he has reason to believe that an offence under this Chapter has been, or is being, committed; or (iii) stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days, or, unless the alleged offence is such that the defect may be removed by the possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or article by means of which the offence has been, or is being, committed or which may be employed for the commission of Patna High Court Cr.Misc. No.50246 of 2006 dt.09-08-2011 6 such offence;] [(cc) examine any record, register, document or any other material object found [with any person, or in any place, vehicle, vessel or other conveyance referred to in clause (c)], and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder;] [(cca) require any person to produce any record, register, or other document relating to the manufacture for sale or for distribution, stocking, exhibition for sale, offer for sale or distribution of any drug or cosmetic in respect of which he has reason to believe that an offence under this Chapter has been, or is being, committed;] (d) exercise such other powers as may be necessary for carrying out the purposes of this Chapter or any rules made thereunder. Thus, Sub-Section (ii) of this Act, provides that the Inspector may search any person or enter and search any place examine and collect any record register, document for a limited period of time in order to attend the object of this Act, which is to regulate the manufacture, Patna High Court Cr.Misc. No.50246 of 2006 dt.09-08-2011 7 distribution and sale of drugs and to ensure the standard of goods is maintained both in the manufacture and sale of the drugs. The power is solely vested in the Inspector appointed by the Government. If the Inspector finds on search that the provisions of the Act are not being followed and there are deficiencies in manufacture and maintenance of stock of medicines, he may file a case. As stated earlier, Sub-Section (ii) of Section 22 of the Act provides that the Code of Criminal Procedure shall apply to any search or seizure made under this Chapter as they apply to any search or seizure made under the authority of a warrant issued under [Section 94] of the said Code. Thus the effect of Section 22 of the Act is the Inspector as a prosecutor, performs the role of the police, as he alone is entitled to conduct and make search and seize, in case of infringement of the provisions of the Act. This power is solely vested in the Inspector, and cannot be handed over to any other agency. Therefore, it is only the Inspector as defined under Drugs and Cosmetics Act who has the power to prosecute. 9. This aspect may be examined from another angle by referring to Section 4 (2) of the Code of Criminal Procedure, which specifically Patna High Court Cr.Misc. No.50246 of 2006 dt.09-08-2011 8 states as follows: “All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” By virtue of Section 4 (2) of the Code of Criminal Procedure, the power to enter, search and seizure have been barred except in the manner provided under the Special Law in which the procedure is to be initiated. 10. Under the Drugs and Cosmetics Act, the power to seize, search, investigate and prosecute has been specifically designated by virtue of Section 32 to the Inspector or the person aggrieved or a person or association recognized by the consumer association and the power to search is not vested in the Officer-in-Charge who therefore, does not have the power to prosecute the offender under the Drugs and Cosmetics Act and thus cannot institute a First Information Report. Since the Act has barred search by the Officer-in-Charge or any Police authority, this Court finds that the institution of the First Information Report by the police officer would be in the teeth of the Patna High Court Cr.Misc. No.50246 of 2006 dt.09-08-2011 9 provisions of the Act, which lead to the conclusion that the decision rendered in the case of “Hindustan Lever Ltd. Vs. The State of Bihar & Ors” (supra) is correct and the petitioner‟s case shall be covered by the decision aforesaid. 11. In the result the First Information Report in G.R. Case No. 1090/2006/Trial No. 2836/2006 arising out of Sasaram (T) P.S. Case No. 347 of 2006, and the consequential order taking cognizance dated 09.10.2006 is quashed. 12. This application is allowed. Shyam Kishore Sharma, J. I agree. Patna High Court, Patna Dated the 9th of August, 2011 A.F.R. kksinha/- (Sheema Ali Khan, J.) (Shyam Kishore Sharma, J.)