IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-20172 of 2010 Date of Decision:- 30.11.2011 Gurpreet Singh ....Petitioner(s) vs. State of Punjab ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Karan Bhardwaj, Advocate, for the petitioner. Mr.G.S.Brar, AAG, Punjab. *** AUGUSTINE GEORGE MASIH, J. (Oral) Prayer in the present petition is for quashing of FIR No.214 dated 24.10.2009 (Annexure P-4) registered under Section 188 IPC at Police Station City Ferozepur on the ground that no FIR can be registered by the police under Section 188 IPC and also that proceedings, if any, can be initiated by the Officer as per Section 195 (1) of the Code of Criminal Procedure whose orders have been violated by any person, who is stated to have committed the offence. Counsel for the petitioner contends that the petitioner is an authorized valid licence holder under the Drugs and Cosmetics Act, 1945 (hereinafter referred to as 1945 Act) and the Rules framed thereunder to sell, stock, exhibit or offer for sale or distribute by retail and wholesale, the drugs provided under the 1945 Act. He contends that a perusal of the FIR indicates that an informer gave a message to ASI Darshan Singh that the petitioner is selling tablets, capsules and other medicines from Crl.Misc.No.M-20172 of 2010 -2- his medical store without the slip of the doctor and if the house of Gurpreet Singh-(petitioner) is raided, he would be found selling big quantity of medicines without doctor's prescription. On that basis, FIR under Section 188 IPC was registered against the petitioner. After the investigation, challan has been presented in Court. It is the contention of the counsel for the petitioner that firstly the order, violation of which is stated to have been committed by the petitioner, although not mentioned in the FIR or in the challan presented in Court but in the reply it is referred to as order No.177 dated 30.9.2009 (Annexure R-1) passed by the District Magistrate, Ferozepur under Section 144 Cr.P.C. This order only applies to such violation where after selling a product, no bill is issued which is neither the allegation in the FIR nor is it in the challan which was presented in Court rather the offence for which the petitioner has been challaned is that he was selling the medicines without the prescription of the doctor. His further contention is that no FIR could be registered under Section 188 IPC as Section 195 Cr.P.C. clearly bars taking of cognizance by the Court except on a complaint in writing of a public servant concerned, whose order is alleged to have been violated. The proceedings against the petitioner could only have been initiated by the District Magistrate which has not been done in the present case and the challan has been presented by the Station House Officer, Police Station City, Ferozepur. In support of this contention, counsel for the petitioner has placed reliance upon a judgment of this Court in the case of Jagtar Singh vs. U.T., Chandigarh, 1996 (1) RCR (Crl.) 669. He accordingly prays for quashing of the present FIR and all consequential proceedings arising Crl.Misc.No.M-20172 of 2010 -3- therefrom. Counsel for the respondent submits that on a specific information received by the police party, the premises of the petitioner was raided and recoveries were effected from the medical store of the petitioner. He, therefore, contends that the petitioner had violated the order passed by the District Magistrate, Ferozepur and, thus, has rightly been challaned after proper investigation. I have heard counsel for the parties and gone through the records of the case. Firstly, the allegation in the FIR against the petitioner is that he was selling medicines without prescription of the doctor. Nothing has been brought on record by the respondent which would suggest that such a requirement was mandated and there was some order specifically passed by a competent Authority which the petitioner had violated. For making out the ingredients of Section 188 IPC, the requirement of a valid order duly promulgated by a public servant is essential. Reliance has been placed by the respondents on Order No.177 dated 30.9.2009 promulgated by the District Magistrate, Ferozepur (Annexure R-1). A perusal of this order shows that the purpose for promulgation of this order under Section 144 Cr.P.C. was to ensure in public interest that a Bill of Sale is issued to the customers so that he can not only ensure his rights in case of receipt of substandard or defective goods but also that the trader/dealer/merchant make payments of Sales Tax as due under law. This order would not be applicable to the allegations which have been made against the petitioner that he was selling the medicines without prescription of the Crl.Misc.No.M-20172 of 2010 -4- doctor. The basis for the offences alleged to have been committed by the petitioner, therefore, does not stand scrutiny of the Court. That apart, Section 195 (1) of the Code of Criminal Procedure deals with prosecution for contempt of lawful authority of a public servant. According to this Section, no Court shall take cognizance of any offence punishable under Section 172 to 188 IPC (both inclusive) except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Admittedly, no complaint has been filed in Court and instead an FIR has been registered and that too for violation of an order passed by the District Magistrate and, therefore, the proceedings, if any, could have been initiated only by the District Magistrate, Ferozepur. The proceedings initiated on the basis of the said FIR under Section 188 IPC, therefore, cannot be said to be in accordance with law. This Court in Jagtar Singh's case (supra) has held as follows:- “2. These facts are not disputed. Language of Section 195(1) of the Code does not leave scope for any ambiguity and is the section which has to be construed strictly. In accordance with the settled principles of interpretation applicable to criminal jurisprudence the provisions of Criminal Procedure Code or penal laws have to be strictly construed so as to be given meaning except what is intended by the Legislature in the language used itself. The relevant portion of Section is that, “No court shall take cognizance – except on the Crl.Misc.No.M-20172 of 2010 -5- complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate”. The intention appears to be clear that where an offence is committed under Section 188 I.P.C., the Legislature has made it obligatory that the public servant before whom such an offence is committed, he will file a complaint to the Magistrate and the cognizance of the offence by the concerned Court is dependent upon the complaint in writing by such officer or an officer superior to such officer.” The case in hand is covered by the ratio as laid down by this Court which has been reproduced here-in-above. In view of the above, the present petition is allowed. FIR No.214 dated 24.10.2009 (Annexure P-4) registered under Section 188 IPC at Police Station, City Ferozepur and all consequential proceedings arising therefrom are hereby quashed. November 30, 2011 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE