STATE OF KERALA v. ORISON J FRANCIS & ANR.

A # [2008] 15 S.C.R. 428 ## STATE OF KERALA _v._ ORISON J FRANCIS & ANR. (Criminal Appeal No. 1723 of 2008) B NOVEMBER 4, 2008 ## **[DR. ARIJIT PASA VAT, C.K. THAKKER AND LOKESHWAR SINGH PANTA, JJ.]** _Drugs and Cosmetics Act, 1940_ - _ss.3(a), 3(b) and 18_ C _(c) rlw 27(b)(ii)_ - _Complaint that Respondents were manufacturing, selling and storing drugs within definition of s.3(b), without requisite licence_ - _Proceedings in Court of_ - _Judicial Magistrate Respondents filed petition under s.482 CrPC contending that the drugs seized belonged to_ o _"Ayurvedic" category which are dealt with under s.3(a) and not under s.3(b) and hence the said complaint could not have been filed_ - _High Court quashed proceedings instituted against the Respondents_ - _On appeal, held: Whether the goods seized were Ayurvedic Drugs or not could only be_ E _decided in trial_ - _Additionally Respondents did -not possess_ - _the requisite licence Mere fact that application for licence was filed, did not entitle Respondents to manufacture and/or to sell the concerned drugs_ - _High Court, therefore, was not justified in quashing the proceedings_ - _Threshold_ F _interference by High Court in exercise of power under s.482 CrPC was not called for in the facts and circumstances of the case_ - _Code of Criminal Procedure, 1973_ - _s.482._ **Pursuant to a complaint under s.18(c)** _**rlw**_ **s.27(b)(ii) of the Drugs and Cosmetics Act, 1940, proceedings were** G **instituted against the accused- Respondents in the Court of Judicial Magistrate. It was alleged that the Respondents were manufacturing, selling and storing drugs within definition of s.3(b), without requisite licence.** 428 **H** ## **v** i STATE OF KERALA _v._ ORISON J FRANCIS & ANR. 429 .. ~ Respondents filed petition under s.482 of CrPC _inter_ A _alia_ contending that the drugs seized belonged to "Ayurvedic" category which are dealt with under s.3(a) and not under s.3(b) and consequently the said complaint could not have been lodged. Appellant, on the other hand, contended that th~[8 ] dispute as to whether the goods seized were Ayurvedic Drugs or not could only be decided in trial and threshold interference by the High Court was not called for, Additionally it was submitted that since Respondents did c not possess licence, the High Court had no power of interference. The High Court quashed the proceedings instituted, against the Respondents in the Court of Judicial Magistrate. Hence the present appeal. D ## Allowing the appeal, the Court _L_ _!_ ). _)_ HELD: Whether the goods in question are Ayurvedic drugs is essentially a matter for trial. Also, a licence was required for dealing with the drugs. The mere fact that the E application for licence was filed, did not entitle the Respondent to manufacture and/or to sell the concerned drugs. The High Court, therefore, was not justified in quashing the proceedings. This is a not a case where threshold interference by exercising power under F Section 482 of the Code was called for. The present case does not belong to any of the categories given by this Court in Bhajan Lal's case by way of illustration wherein power under Article 226 of the Constitution or inherent powers under s.482 of CrPC can be exercised either to G prevent abuse of the process of any Court or otherwise to secure the ends of justice [Paras 6, 7, 8 and 9] [432-D; 433-A, B; 433-D, E] _State of Haryana v. Bhajan Lal_ (1992) Supp 1SCC 335, relied on. H [2008] 15 S.C.R. SUPREME COURT REPORTS 430 _:,_ A **Case Law Reference:** **(1992) Supp 1 sec 335 relied on Para 8** CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1723 of 2008. B From the final Judgment and Order dated 7.11.2006 of the High Court of Kerala at Ernakulam in Criminal M.C. No. 1135 of 2006. c R. Sathish for the Appellant. S.K. Agarwal, Arun K. Sinha and Rakesh Singh for the Respondents. The Judgment of the Court was delivered by D **DR. ARIJIT PASAYAT, J.** 1. Leave granted. 2. Challenge in this appeal is to the judgment of a learned Single Judge quashing the proceedings in CC No. 917 of 2004 in the Court of Chief Judicial Magistrate, Ernakulam. l E 3. Background facts in a nutshell are as follows: A complaint was filed alleging commission of offences punishable under Section 18(c) read with Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 (in short the 'Act'). F Allegation was that the three accused persons were manufacturing and selling and storing DXN Ganocelium (GL) and DXN Rishi and (RG) capsules, which are drugs within the definition of Section 3(b) of the Act, without a manufacturing licence. In the complaint M/s. Deshsan Trading (India) Pvt. Ltd. G represented by Abdul Rahmath Puvarasar Abdulla, Director and Abdul Rahmath Pavarsan Abdulla and Orison J Francis, Branch Manager. were arrayed as accused .Persons Nos. 1 to 3. A petition under Section 482 of the Code of Criminal Procedure, . 1973 (in short the 'Code') was filed by the accused No. 1 and H[3 ][wh.o ][are respondents 1 ][& ][2 ][in ][the present appeal. Basic ] _j_ _J__ \ _Jo-_ 431 STATE OF KERALA _v._ ORISON J FRANCIS & ANR. [DR. ARIJIT PASAYAT, J.] - _.A_ ' '" _A_ )< _-J_ A stand before the High Court was thatthe alleged drugs seized A belonged to "Ayurvedic" category which is dealt with under Section 3(a) whereas the "Allopathy drugs" are defined under Section 3(b). Separate Chapter i.e. Chapter IVA deals with Ayurvedic drugs etc. while Chapter IV deals with "Allopathy drugs". The charge is that the appellants violated Section 18(c) B of Chapter IV, i.e. with respect to Allopathy Drugs. Acco~ding to the accused the article sold was food supplement and at best is only an Ayurvedic proprietary drug. The Drug Department I of State of Tamil Nadu has issued drug licence under Chapter IVA as an Ayurvedic drug and thereafter licence was issued by c the Food and Drug Administration, Pondicherry. Hehce, sanction under Section 33 M of the Act ought to have been obtained to launch prosecution, which is lacking. It is also not established that the person who launched the complaint is a public servant under Section 21 of the Act. According to tl"ilem, D gazette notification and the letter of appointment of the complainant/Drug Inspector are insufficient to satisfy Seytion 21 or Section 33G. What has been produced is only a transfer order. It was further contended that the court has not considered the pre-summoning evidence in the matter. Nowhere it is E mentioned in the complaint that the same has been filed by the complainant in his capacity as public servant and the examination of the complainant can be dispensed with. B E 4. Stand of the present appellant before the High Court was that whether the goods seized were Ayurvedic Drugs can only F be decided in the trial and the threshold interference by the High Court is not called for. Additionally it was submitted that the undisputed position being that the respondents did' not possess a licence, the High Court could not have interfered. The mere fact that the licence was granted subsequently is of G no consequence. It was pointed out that.the inspector who made the seizure and filed the complaint was authorized tQ do so. In this connection, reference is made to the order dated 3.5.2000 transferring the concerned Diug Inspector from,the Drugs Control Society, Trivendrum to be posted as Drug F H SUPREME COURT REPORTS - [2008] 15 S.C.R. 432 A Inspector in the office of the Assistant Drugs Controller. Reference is also made to the Notification dated 19.11.i001 relating to the power of inspection of inspectors. It is stated that . the explanatory note has no application because only when the drug is shown to be Ayurvedic drug, the explanatory note shall B have relevance. 5. Learned counsel for the responde_nts, on the _other hand, · submitted that the seized drugs are nothing but Ayurvedic drugs. The complaint itself was filed after two years on2.12.2003, though the seizure was made on much earlier. It is C also submitted that the licence was subsequently granted after a long lapse of about two years. Same is a factor which has weighed with the High Court and for a technical breach the proceedings should not continue. The drugs were seized on 12.12.2001 and on the next day itself the respondent had D obtained the licence. 6. Whether the goods in question are Ayurvedic drugs is essentially a matter for trial. Section 18(c) of the Act reads as follows: E "18. Prohibition of manufacture and sale of certain drugs and cosmetics - From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shal! himself or by any other person on his behalf. · F (a) ....... . (b) ........ . G (c) manufacture for sa!e (or for distribution), or sell, or stock or exhibit (or offer) for sale, or distribute any drug (or cosmetic), except under, and in accordance with the conditions of a licence issued for such purpose under this Chapter." H 433 STATE OF KERALA _v._ ORISON J FRANCIS & ANR. [DR ARIJIT PASAYAT, J.] ·-' "I >- A 7. Obviously, a licence was required for dealing with the drugs. The mere fact that the application for licence was filed, did not entitle the respondent to manufacture and/or to sell the concerned drugs. The High Court, therefore, was not justified in quashing the proceedings. This is a not a case where threshold interference by exercising power under Section 482 B of the Code was called for. 8. The scope for interference at the threshold by exercising power under Section 482 of the Code has been succinctly stated by this Court in _State of Haryana v. Bhajan Lal_ [1992 c Supp(1 )SCC 335]. In paragraph 102 it was stated as follows: "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. D E F (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. G _, J (2) Where the allegations in the first information report and other materials, if any, accompanying the H -- ... ~ ' 434 SUPREME COURT REPORTS [2008] 15 S.C.R. A FIR do .not discl9se a cognizable offence .. ju~tifying an invest.igation by police office~s under Secti~n . 156( 1) .of the, Code except under a,n o.rder of a Magistrate within the purview . . - of Section 155(2) ' of the Code. ;..... B c D E F G H (3) Where the uncontroverted allegations ma·de in the FIR or complaint and the evidence.collected in support of the same do not dis"close the commission of any offence and make out a case against the accused. > (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer withou·t an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever · reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is ~n express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and ~ ,.. ~ STATE OF KERALA _v._ ORISON J FRANCIS & ANR. [DR. ARIJIT PASAYAT, J.] 435 with a view to spite him due to private and personal grudge. 9. The present case does not belong to any of the aforesaid categories. 10. The appeal is accordingly allowed. We make it clear B that we have not expressed any opinion on the merits of the case. B.B.B. Appeal allowed. c j. - ' ~ ~ -·