IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.16442 of 2008 DR.GANESH SINGH S/o Late Radheyshyam Sinha, Advocate, at present posted as Medical Officer, Lalganj, Distt. Vaishali at Hajipur, permanent R/o Salempur Chapra, P.S. Chapra (T), Distt. Saran at Chapra. . . . . . Petitioner. Versus THE STATE OF BIHAR ----------- 6/ 22.04.2010 Heard learned counsel for the petitioner and the State. The petitioner prays for quashing the entire prosecution of Prosecution Case no. C-2 274 of 2006 (Trial No. 2216 of 2007) including the order of cognizance, dated 29.04.2006, by which Chief Judicial Magistrate, Vaishali at Hajipur took cognizance under Section 22(1)(c) of Drugs and Cosmetics Act, 1940 (hereinafter referred to as Drugs Act, 1940). The aforesaid prayer is founded on the ground that the application made under Section 22(1) (c) of the Drugs Act, 1940 by the Drug Inspector was not for launching prosecution against the petitioner, rather it was an intimation for keeping and preserving the medicines. Furthermore, Section 22(1) (c) of the Drugs Act, 1940 is neither Penal nor deals with the definition of offence rather it relates to the power of Inspector to inspect and make search and seizure. The petitioner further contends that the impugned order registering the said application of the Drug Inspector dated 30.01.2006 is a mechanical act without application of judicial mind. On 04.02.2010, this Court granted three weeks time to State to obtain instructions and in the mean time stayed further proceedings in Prosecution Case no. C-2 274 of 2006. - 2 - Again on 18.03.2010, two weeks further time was granted to the State. On 02.04.2010, this Court granted one more chance to the State and observed that if no counter affidavit is filed by 15.04.2010, the Court will proceed and decide the case on its own merit. As no counter affidavit was filed even by 16.04.2010, this Court heard the case on its own merit and fixed it for Orders on 21.04.2010. On 21.04.2010, the State counsel submits that he has received instruction to contend that Chief Judicial Magistrate can take cognizance under Section 22(1)(c) of the Drugs Act. The matter has been adjourned for today for passing order. The facts of the case in short is as follows: On 28.01.2006, the Drug Inspector in course of inspection found some medicines in the shop without invoice, as such the same was seized under Section 22(1)(c) of the Drugs Act, 1940 and a report prepared in form 16. A copy of the report dated 30.01.2006 of Drug Inspector has been annexed as Annexure-1. From perusal of the application and reports in form 16, it would appear that the same was not a prosecution report, rather it was an application by the Drug Inspector for permission to keep / preserve the medicines, so seized. The aforesaid application was seen by the learned Chief Judicial Magistrate on 29.04.2006 and on the same day he directed the office to register it as a case. On that day, the Magistrate also passed order - 3 - taking cognizance under Section 22(1)(c) of the Drugs Act, 1940 against the Proprietor of Health Care and Maternity Centre Nursing Home and as well as this petitioner. The application dated 30.01.2006 made to Chief Judicial Magistrate, Hajipur contained a copy of the inspection report, carbon copy of entry under Form 16 and a copy of order of inspection as enclosures (Annexure-2). Though in the application to the Chief Judicial Magistrate, Hajipur, the premises inspected is shown as a shop, but in the inspection report it has been mentioned as Health Care and Maternity Centre Nursing Home, alleging to be a private Nursing home of the petitioner. It was further stated in the inspection report that one Pawan Kumar Singh, who was present on the spot, stated that he is compounder in the aforesaid Nursing Home. Learned counsel submits that application filed by the complainant cannot be treated a complaint under Section 2(d) of Cr.P.C., as it was a mere petition or an intimation for keeping and preserving the alleged medicine in question. Thus, the application to the Chief Judicial Magistrate contained in Annexure-1 and 2 cannot be treated as a complaint, as such the registration of the case and the subsequent cognizance is bad in law. He submits that it will be apparent from order sheet that the name of the petitioner has been inserted as an after thought in order taking cognizance. Furthermore 10 of the 13 items seized are either Gloves, Syringe, Saline water, which do not come within the category of Drugs under Section 3(b) of - 4 - the Act. He submits that while taking cognizance, the court has to apply its judicial mind to the probability and improbability of the allegations. The Magistrate ought of have scrutinized the materials to find out whether complaints make out any offence or not. It would appear from the application dated 30.01.2006 addressed by Drug Inspector to Chief Judicial Magistrate that the same was in form of an intimation seeking approval for preserving the seized medicines. Furthermore, Section 22(1)(c) of the Drugs Act, deals with the power of Inspector to inspect and make search and direct the person from whom possession the drugs and cosmetic has been seized not to dispose them. The application to Chief Judicial Magistrate was a mere intimation seeking permission for keeping the seized items and the petition does not disclose any intention to lodge a criminal prosecution. The term complaint has been defined in Section 2(d) of Cr.P.C. It stipulates that complaint must disclose intention to take action for the alleged offence. In backdrop of the aforesaid facts, the impugned order taking cognizance and criminal prosecution arising out of Prosecution Case No. C-2 274 of 2006 is hereby quashed. Uday/ (Samarendra Pratap Singh, J.)