REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1723  OF 2008 (Arising out of SLP (Crl.) No. 6043 of 2007)

State of Kerala  ..Appellant

Versus

Orison J Francis & Anr. ..Respondents

J U D G M E N T

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.

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’).   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.  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  3  who  are

respondents 1 & 2 in the present appeal.  Basic stand before the High Court

was that the alleged drugs seized 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) of Chapter IV, i.e. with

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respect to Allopathy Drugs.  According to the accused the article sold was

food supplement and at best is only an Ayurvedic proprietary drug.  The

Drug Department  of  State  of  Tamil  Nadu  has  issued drug licence  under

Chapter IV-A as an Ayurvedic drug and thereafter licence was issued by the

Food and Drug Administration, Pondicherry.  Hence, 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

them,  gazette  notification  and  the  letter  of  appointment  of  the

complainant/Drug Inspector are insufficient to satisfy Section 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 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.

4. Stand of the present appellant before the High Court was that whether

the goods seized were Ayurvedic Drugs can only 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

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not possess a licence, the High Court could not have interfered.  The mere

fact that the licence was granted subsequently is of no consequence.  It was

pointed out that the inspector who made the seizure and filed the complaint

was authorized to do so.  In this connection, reference is made to the order

dated 3.5.2000 transferring the concerned Drug Inspector from the Drugs

Control Society, Trivendrum to be posted as Drug Inspector in the office of

the Assistant Drugs Controller.  Reference is also made to the Notification

dated 19.11.2001 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  have

relevance.

5. Learned counsel  for  the respondents,  on  the  other  hand,  submitted

that the seized drugs are nothing but Ayurvedic drugs.  The complaint itself

was filed after  two years on 2.12.2003, though the seizure was made on

much earlier.  It is 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 obtained the licence.   

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6. Whether the goods in question are Ayurvedic drugs is essentially a

matter for trial.  Section 18(c ) of the Act reads as follows:

“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 shall  himself or by any other  person on his behalf.

(a)……..

(b)………

(c) manufacture for sale (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.”

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

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

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Haryana v.  Bhajan Lal [1992 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.

(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. (2) Where  the  allegations  in  the  first  information report and other materials, if any, accompanying the FIR do  not  disclose  a  cognizable  offence,  justifying  an investigation by police officers under Section 156(1) of the Code except  under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of  the  same  do  not  disclose  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  without  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.

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(6) Where there is  an 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 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 that we have

not expressed any opinion on the merits of the case.

 ......………………………….....J.   (Dr. ARIJIT PASAYAT)

 ..……………………….…...…..J.   (C.K. THAKKER)

 …..……………….……………..J.   (LOKESHWAR SINGH PANTA)

New Delhi, November 4, 2008

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