Dr. Shaheda Shajahan v. Berley Varghese and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943 CRL.MC NO. 4386 OF 2016 [AGAINST CRIME NO.293/2013 OF PERAMANGALAM POLICE STATION IN C.C.NO.32 OF 2014 PENDING ON THE FILE OF THE JUDICIAL FIRST CLASS ## MAGISTRATE COURT,KUNNAMKULAM] ## PETITIONER/ACCUSED: DR. SHAHEDA SHAJAHAN AGED 50 YEARS D/O MUSTAFA, NADAKKAVIL KIZHAKKETHIL, CHINGOLI VILLAGE, CHINGOLI MURI, CHINGOLI P.O., ALAPPUZHA DISTRICT. BY ADV SRI.M.K.NOUSHAD ## RESPONDENTS/DEFACTO COMPLAINANT & STATE: 1 BERLEY VARGHESE AGED 29 YEARS S/O. VARGHESE MATHEW, KEECHERIVEETTIL, PALLIKKATH DESOM, CHUNGATHARA VILLAGE, MALAPPURAM DISTRICT. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY SHRI. ARAVIND V. MATHEW, PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16.12.2021, THE COURT ON 12.1.2022 PASSED THE FOLLOWING: CRL.MC. No.4386 of 2016 2 ## O R D E R The petitioner is the accused in C.C.No.32/2014 on the file of the Judicial First Class Magistrate Court, Kunnamkulam. The aforesaid case arises from crime No.293/2013 of Peramangalam Police Station which was registered against the petitioner for the offences punishable under Sections 419 and 420 of the Indian Penal Code (IPC) and under Section 33 of the Drugs and Cosmetics Act, 1940. 2. The facts leading to the case are as follows: The petitioner is claimed to be a practicing doctor in the branch of Alternative Medicine and is conducting alcoholic de-addiction centre. She is a post-graduate degree holder in psychology. The 1[st] respondent herein submitted a complaint before the Police stating that he purchased certain medicines from the petitioner herein for treating alcoholism of his father for an amount of Rs.1,500/-. He continued to purchase the said medicines from the petitioner by CRL.MC. No.4386 of 2016 3 spending additional amounts. It was stated that, the 1[st] respondent purchased the said medicines as the petitioner herein made him to believe that those medicines are effective for treating alcoholism and to enable the persons suffering from the same to get rid of the said habit. However, later, it was found that the said medicine was not effective for the said purpose and the petitioner was not having the qualifications for prescribing such medicines. 3. On the basis of the said allegation, Annexure-A1 F.I.R. was registered and after completing the investigation thereon, Annexure-A2 final report was submitted. This Crl.M.C. is filed by the petitioner seeking to quash all further proceedings in Annexure-A2 final report. 4. Heard Sri. M.K.Naushad, the learned counsel for the petitioner and Sri. Aravind V. Mathew, the learned Public Prosecutor. Even though notice was sent to the 1[st] respondent, there is no appearance so far. CRL.MC. No.4386 of 2016 4 5. The specific case of the learned counsel for the petitioner is that, no case could have registered on the basis of an inspection conducted by the police officer on account of the prohibition contained in Section 32 of the Drugs and Cosmetics Act, 1940. In support of the said contention, the learned counsel for the petitioner relies on the judgment rendered by the Hon’ble Supreme Court in Union of India v. Ashok Kumar Sharma and Others [(2020)4 MLJ(Crl)243(SC) . With regard to the other offences alleged against the petitioner, it is pointed out that the complaint itself is a false one submitted at the instigation of one Shinu J. Pillai who is having enmity with the petitioner herein. He also brought my attention to various litigations pending between the petitioner and the said Shinu J. Pillai. It was also contended by the learned counsel for the petitioner that, the 1[st] respondent had never purchased medicine from the petitioner and the final report does not contain any materials to show such purchase. In such CRL.MC. No.4386 of 2016 5 circumstances, he prays for an order quashing the entire proceedings against her. 6. The learned Public Prosecutor opposes the said contentions. It is pointed out that, even if it is assumed for argument sake that the prosecution under the provisions of Drugs and Cosmetics Act are unsustainable, there are other cognizable offences charged against the petitioner and the prosecution in its entirety will not become vitiated. It is also pointed out that the averments in the complaint would clearly reveal the commission of the offences under Sections 419 and 420 of the IPC. It is also pointed out that, the petitioner could not produce any documents substantiating her qualification to practice as a doctor and to prescribe medicines to any patients. In such circumstances, he seeks for dismissal of Crl.M.C. 7. The first question that arises is with regard to the sustainability of prosecution launched on the basis of an inspection conducted by the police CRL.MC. No.4386 of 2016 6 officer, for the offences under the provisions of the Drugs and Cosmetics Act. Section 32 of the Drugs and Cosmetics Act deals with the cognizance of offences under the said Act, which reads as follows: _“32 . Cognizance of Offences -[(1) No prosecution under this Chapter shall be instituted except by-_ _(a) an Inspector; or_ _(b) any Gazetted Officer of the Central Government or State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or_ _(c) the person aggrieved; or_ _(d) a recognized consumer association whether such person is a member of that association or not._ _(2) Save as otherwise provided in this Act, no Court inferior to that of a Court of Session shall try an offence punishable under this chapter.]_ _(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter.”_ Going by the said provision, prosecution can be launched only by an Inspector or any Gazetted Officer of the Central or the State Government authorized in writing in this behalf or any person aggrieved or a CRL.MC. No.4386 of 2016 7 recognized consumer organization. In this case, the prosecution is seen instituted on the basis of an inspection conducted by the police officer. The expression ‘Inspector’ is defined under Section 3(e) of the Drugs and Cosmetics Act which reads as follows: “ _S. 3(e): “Inspector” means-_ _(i) in relation to [Ayurvedic, Siddha or Unani] drug, an inspector appointed by the Central Government or a State Government under section 33-G; and_ _(ii) in relation to any other drug or cosmetic, an Inspector appointed by the Central Government or a State Government under section 21;]”_ Section 21 of the Act states the qualification of Inspectors, which reads as follows: _“21.Inspectors -(1) The Central Government or a State Government may by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be._ _(2) The powers which may be exercised by an Inspector and the duties which may be performed by him, the drugs or [classes of drugs or cosmetics or classes of cosmetics] in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed shall be such as may be prescribed._ CRL.MC. No.4386 of 2016 8 _(3) No person who has any financial interest [in the import, manufacture or sale of drugs or cosmetics] shall be appointed to be an Inspector under this section._ _(4) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860), and shall be officially subordinate to such authority [having the prescribed qualifications] as the Government appointing him may specify in this behalf]”_ Similarly, Section 33-G also mentions the qualifications of Inspectors of Ayurvedha, Sidha and Unani medicine. The said provision reads as follows: “33-G. Inspectors -(1) The Central Government or a State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be. (2) The powers which may be exercised by an Inspector and the duties which may be performed by him and the conditions, limitations or restrictions subject to which such powers and duties may be exercised or performed shall be such as may be prescribed. (3) No person who has any financial interest in the manufacture or sale of any drug shall be appointed to be an Inspector under this section. (4) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860), and shall be officially subordinate to such authority as the Government appointing him may specify in this behalf.” CRL.MC. No.4386 of 2016 9 The Police Officer is not among the persons mentioned in any of the aforesaid provisions. Section 22 of the Drugs and Cosmetics Act provides the powers of inspectors. As per the said provision, the power to inspect any premises for the purpose of finding out the violation of the Drugs and Cosmetics Act are vested upon the Inspectors as defined under Sections 21 and 33G of the said Act. Section 23 of the Act deals with the procedure to be followed in respect of the inspection, sampling and launching the prosecution for the offences under the Act. 8. Thus on going through the aforesaid provisions, the scheme of Drugs and Cosmetics Act, 1940 is clearly revealed. This would indicate that the aforesaid statute envisages an inspection by a competent inspectors in this regard for the purpose of launching any prosecution for the offences punishable under the Act. 9. The aforesaid question was specifically considered by the Hon’ble Supreme Court in CRL.MC. No.4386 of 2016 10 Ashok Kumar Sharma’s case (supra). In the said judgment, after elaborately considering various provisions of Drugs and Cosmetics Act, in the light of large number of judicial precedents, the conclusions were summarized in paragraphs 150 of the said judgment in the manner as follows: _“150. Thus, we may cull out our conclusions/directions as follows:_ _I. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the CrPC, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same._ _II. There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated under Section 32(3) of the Act, i.e., if he has committed any cognizable offence under any other law._ _III. Having regard to the scheme of the CrPC and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR under Section 154 of the CrPC, in regard to cognizable offence under Chapter IV of the Act and he cannot investigate such offences under the provisions of the CrPC._ _IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K.Basu v. State of West Bengal (supra) and to follow the provisions of CrPc._ _V. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard_ ## CRL.MC. No.4386 of 2016 11 _to cognizable offences falling under Chapter IV of the Act. We find substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard._ _VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrest in regard to offences under Chapter IV of the Act. Therefore, in regards to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment._ _VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the CrPC, but also immediately report the arrests to their superior Officers.”_ 10. In the light of the above, the initiation of proceedings in this case by the police officer and the cognizance taken thereon by the learned Magistrate, for the offences punishable under the provisions of Drugs and Cosmetics Act, are not legally sustainable. In such circumstances, the prosecution against the petitioner under Section 33 of the Drugs and Cosmetics Act is not legally sustainable. CRL.MC. No.4386 of 2016 12 11. However, the question now emerges is as to whether the prosecution in respect of Sections 419 and 420 of the IPC can be allowed to be proceeded with. In this regard, the relevant provision is under Section 32(3) of the Act. The aforesaid provision contemplates that, nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter. This would mean that even if the prosecution under the provisions of Drugs and Cosmetics Act, 1940 was found to be invalid, nothing will preclude the prosecution agency to continue the prosecution against the accused persons on the very same materials for any other offences in other statutes. The aforesaid position of law is also clarified by the Hon’ble Supreme Court in Ashok Kumar Sharma’ s case (supra). The conclusion shown as clause ‘II’ in paragraph 150 of the said judgment specifically provides that, there shall be no bar to the Police Officer to investigate and prosecute the person when CRL.MC. No.4386 of 2016 13 he has committed any cognizable offence under any other law. Thus, in the light of the stipulation contained in Section 32(3) and also on account of the observations made by the Hon’ble Supreme Court in the above judgment, the prosecution initiated in respect of the offences under Sections 419 and 420 of the IPC cannot be find fault with. 12. In such circumstances, the question that arises is as to whether the facts and circumstances constitute the offences of Sections 419 and 420 of the IPC. It was pointed out by the learned counsel for the petitioner that, the complaint which resulted in the registration of the crime against the petitioner by itself is a false one which is submitted at instance of one Shiju P. Pillai in order to wreak vengeance against the petitioner. It is also contended that, the de facto complainant had not purchased any medicines from the petitioner herein. However, the aforesaid contention is a question of fact with regard to the veracity of those CRL.MC. No.4386 of 2016 14 allegations. In a proceeding under Section 482 of the Cr.PC, the aforesaid question cannot be considered and the said question can only be adjudicated during the course of trial. 13. The learned counsel for the petitioner also brought to my attention to Annexure-A6 judgment rendered by a Division Bench of this Court providing police protection to the petitioner and another person for running hospital. However, I am of the view that, the said judgment will not confer any absolute right on the part of the petitioner for practicing any kind of medicine or prescribing the same to patients unless she has any qualification for the same. No materials produced before me in this regard to establish any such qualifications for the petitioner. 14. In such circumstances, I am of the view that, sustainability of the allegations which forms the basis for charging the offences punishable under Sections 419 and 420 of the IPC cannot be considered CRL.MC. No.4386 of 2016 15 in a proceeding of this nature. The same is also a matter to be considered on evidence to be adduced during the course of trial. In such circumstances, this Crl.M.C. is allowed in part. Annexure-A3 final report to the extent of prosecuting the petitioner for the offence under Section 33 of the Drugs and Cosmetic Act,1940 is quashed. The prosecution in respect of the remaining offences can be continued. However, it is made clear that, the observations and findings entered into in this order are only for the purpose of examining as to whether a case is made out for invoking the power under Section 482 of the Cr.PC. The trial court can consider the contentions of the petitioner herein in relation to the offences under Sections 419 and 420 of the IPC untrammeled by any of the observations made in this order. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC. No.4386 of 2016 16 ## APPENDIX OF CRL.MC 4386/2016 PETITIONER’S ANNEXURES: |ANNEXURE A1|CERTIFIED COPY OF THE FIR IN CRIME NO.| |---|---| ||293/2013 DATED 14.02.2013 OF PERAMANGALAM| ||STATION, THRISSUR.| |ANNEXURE A2|CERTIFIED COPY OF THE FINAL REPORT ON CRIME| ||NO. 293/2013 DATED 23.9.2013 OF PERAMANGALAM| ||STATION,| |ANNEXURE A3|TRUE COPY OF FIR ANNEXURE IN CRIME NO.73/2011| ||DATED 9.3.2011 OF THRIKKUNNAPPUZHA POLICE| ||STATION.| |ANNEXURE A4|TRUE COPY OF THE ORDER DATED 29.4.2015 IN CMP| ||226/2013 IN CMP 228/2015 OF DIST. COURT,| ||ALAPPUZHA.| |ANNEXURE A5|TRUE COPY OF THE DECREE DATED 18.7.2014 IN| ||O.S. 177/2011 OF MUNSIFF COURT , HARIPPAD.| |ANNEXURE A6|TRUE COPY OF THE JUDGMENT DATED 3.9.2010 IN| ||WPC NO. 12883/2010 OF THIS HON'BLE COURT.| |ANNEXURE A7|TRUE COPY OF THE TEST REPORT DATED 28.2.2013| |ANNEXURE A8|TRUE COPY OF THE ORDER DATED 14.5.2013 IN WPC| ||NO. 12043/2013 OF THIS HON'BLE COURT.| |ANNEXURE A9|TRUE COPY OF CERTIFICATE OF REGN. ISSUED BY| ||THE INDIA BOARD OF ALTERNATIVE MEDICINE DATD| ||29.11.2007.| |ANNEXURE A10|TRUE COPY OF THE LICENSE REGISTRATION| ||CERTIFICATE DATED 7.4.2008 ISSUED FROM THE| ||CHOORNIKKARA PANCHAYATH.| |ANNEXURE A11|TRUE COPY OF THE DEGREE CERTIFICATE IN| ||BACHELOR IN THE SYSTEM OF AYURVEDIC MEDICINE| ||OF MR. KRISHNASWAMY PILLAI.|