HIGH COURT OF UTTARAKHAND AT NAINITAL v. Mr. Abhishek Verma, learned counsel for the

initiated on the basis of an FIR lodged by respondent no.2, a Sub Inspector of Police, who is not competent under the Act to launch prosecution. Reliance is placed on Section 3(e), Section 21 and Section 32 of the Act which specifically provide that only an Inspector appointed under Section 21 of the Act, or certain other specified authorities, can institute prosecution. Thus, the FIR and consequent charge-sheet filed by a police officer are without authority of law.

4. Learned counsel for the applicant would further submit that the Investigating Officer has mechanically filed the charge-sheet without proper investigation and the learned Magistrate has taken cognizance in a routine manner without considering the statutory mandate. The invocation of Sections 276 and 420 IPC has been done only to overcome the bar under the Drugs and Cosmetics Act, although the ingredients of those offences are wholly absent.

6. Per contra, learned State counsel submits 3 that recovery of contraband medicines from the possession of the applicant stands established and, therefore, the prosecution has rightly been instituted and the trial court has rightly summoned the applicant.

7. On the other hand, learned counsel for the applicant would submit that a bare perusal of the recovery memo reveals that the alleged recovery is stated to have been effected from a highly crowded place; however, the police failed to associate any independent or public witness to support the said recovery. It is further contended that according to the prosecution itself, the applicant was allegedly intercepted on the basis of information that he was selling the medicines in question to students and other persons, yet no effort whatsoever was made by the police to procure even a single person from the spot or the nearby area to whom the alleged medicines were said to have been sold by the applicant.

8. Learned counsel for the applicant would further submit that the evidence on record, at the highest, makes out a case of mere possession of the 4 alleged medicines. In this regard, reliance is placed on the judgment of the Hon’ble Apex Court in Dr. S. Selvam v. State, (2011) 3 C Ch LT 786, wherein it has been categorically held that mere possession would not attract an offence under the Act, and the continuance of such proceedings would amount to nothing but an abuse of the process of law.

9. Heard learned counsel for the parties and perused the material available on record.

10. At the outset, it is necessary to notice the scheme of the Act. Section 3(e) defines “Inspector” in relation to drugs and cosmetics to mean an Inspector appointed by the Central or State Government under Section 21.

11. Section 21 empowers the Central and State Governments to appoint Inspectors by notification in the Official Gazette.

12. Section 32 categorically provides that no prosecution under the Act shall be instituted except by (a) an Inspector, (b) a gazetted officer authorised in writing by the Government, (c) an aggrieved person, or (d) a recognised consumer association.

13. In Drugs Inspector v. B.K. Krishnaiah 5 [(1981) 2 SCC 454], the Hon’ble Supreme Court the provisions of Section 32 are mandatory in nature and cognizance can only be taken if the complaint is instituted by the persons specified therein. Any prosecution instituted by an authority not mentioned in Section 32 would be without jurisdiction.

14. Similarly, in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335], the Supreme Court laid down that where criminal proceedings are manifestly attended with mala fide or instituted maliciously with an ulterior motive, or where there is an express legal bar engrafted in any statute to the institution of such proceedings, the High Court can exercise inherent jurisdiction under Section 482 Cr.P.C. to quash the same.

15. In the present case, the FIR was lodged and prosecution initiated by a Sub Inspector of Police, who is not an Inspector within the meaning of Section 3(e) read with Section 21 of the Act, nor an authority empowered under Section 32 of the Act. Therefore, the very institution of proceedings is barred law. The charge-sheet submitted 6 pursuant to such FIR is without jurisdiction.

16. As regards the invocation of Section 420 IPC, the Supreme Court International Advanced Research Centre Powder Metallurgy & New Materials v. Nimra Cerglass Technics (P) Ltd. [(2016) 1 SCC 348] reiterated that to attract Section 420 IPC, there must be deception, dishonest inducement, and delivery of property. Mere possession of drugs without licence, even if assumed, cannot constitute cheating. In the absence of any allegation of inducement or delivery of property by deception, Section 420 IPC is not attracted.

17. The Supreme Court in Dr. S. Selvam v. State [2011 (3) Crl. L.J. 786] has further held that mere possession of medicines without establishing intent to sell or distribute does not attract penal consequences unless prosecution is properly instituted under the Act. Thus, these circumstances i.e. (i) prosecution being initiated by an incompetent authority contrary to Section 32 of the Act, and (ii) absence of ingredients of Section 420 IPC—lead this Court to the conclusion that continuance of 7 proceedings against the applicant would amount to abuse of process of law.

18. In view of the aforesaid discussion, this Court is of the considered view that the FIR, charge- sheet, and the summoning/cognizance order are wholly unsustainable in law.

19. Accordingly, the application under Section 482 Cr.P.C. is allowed. The charge-sheet and the cognizance/summoning order dated 17.08.2015 passed by the learned Chief Judicial Magistrate, Dehradun in Criminal Case No. 2704 of 2015 under Sections 276/420 IPC and Section 18C/27 of the Drugs and Cosmetics Act, 1940 are hereby quashed.

20. Pending applications, if any, also stand disposed of. Mamta (ALOK MAHRA, J.)

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