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2019 Supreme(Bom) 774
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE, R.G. AVACHAT, JJ.
AVADHESH MUKUTBIHARI SHARMA - Appellant
Versus
STATE OF MAHARASHTRA - Respondent
Criminal Writ Petition No. 1355 of 2017
Decided on : 02-05-2019
Advocate Appeared:
R.R. Mantri, Adv., S.B. Yawalkar, Adv.
Headnote:
Indian Penal Code, 1860 – Sections 120, 420 – Drugs and Cosmetics Act, 1940 – Sections 18(a)(i), 27(a), 27(c), 27(d), 18(c) 27(b) (ii), 36-AC – Code of Criminal Procedure, 1973 – Sections 154, 155, 156, 157, 162, 169, 170 and 173 – Quashment of F.I.R – Constitution of India, 1950 – Articles 226 and 227 – Criminal Writ Petition filed under Articles 226 and 227 of the Constitution of India seeks quashing of F.I.R., being Crime, registered with CIDCO, Aurangabad Police Station and consequential Charge Sheet pending before the Court of Judicial Magistrate, First Class, Aurangabad – Held, Court observed that, therefore, the report of Central Drugs Laboratory is of utmost importance and in fact it supercedes the report of the Government Analyst. – This sub-section provides two options. – The Court may at the request either of the complainant or the accused forward the sample to the Central Drug Laboratory or it may on its own motion do so. – This is obviously to rule out any possibility of any prejudice being caused either to the complainant or the accused and to set at rest any doubt entertained by them as regards the authenticity of the report of the Government Analyst. It is, therefore, necessary that provisions of subsection (4) of Section 25 are not rendered redundant by any events and this right of the complainant or the accused is in fact made available to them. – Public Analysts report indicates the two drugs seized from Richmond Laboratory were found to be spurious. – There is record to prima facie indicate compliance of Section 25(2) of the Act. Copy of the report was sought to be delivered to the petitioner in jail. – He, however refused to receive the same. – The charge sheet (now supplementary) came to be filed after shelf life of the drugs was over. – The petitioner may, therefore, be justified to contend to have suffered prejudice in his right to have the sample tested by Central Laboratory. – Court do not propose to give any positive finding in view of the fact that the Drug Inspector has launched prosecution against the petitioner and the proprietor of Richmond Laboratory, Aurangabad by filing complaint before the Court of Judicial Magistrate, First Class. – The petitioner is at liberty to agitate his grievance since the prosecution launched pursuant to the said complaint is not under challenge in this Writ Petition. – It was submitted by the learned counsel for the petitioner that, offence punishable under Section 420 of the Indian Penal Code is not attracted since no person came forward alleging to have been fraudulently or dishonestly induced to buy the two drugs – Court find no substance in the submissions made by learned counsel for the petitioner, for the reason that the record indicates the petitioner to have sold/ supplied the spurious drugs to Richmond Laboratory, which in turn sold/ supplied to other dealer and customers as well. – There are invoices to indicate the same. – This fact prima facie indicates that spurious drugs were sold. – Moreover, those drugs were shown to have been manufactured by Avya Health Care, Rudrapur, District Mandi, non existent entity – For the reasons given hereinabove, Court found the impugned F.I.R., being the second F.I.R., lodged against the petitioner, in respect of the same offence, and the same is, therefore, liable to be quashed. – The petitioner has, prima facie, been found to have committed offence under Sections 420 read with Section 120-B of the Indian Penal Code and offence under Section 17-B of the Drugs and Cosmetics Act, 1940. – The petitioner would, therefore, be liable to be prosecuted for newly disclosed offences committed by him in the course of the same transaction. Section 300 of the Code of Criminal Procedure would not come in the way. – Petition Partly Succeeds
R.G. AVACHAT, J.
1. This Criminal Writ Petition filed under Articles 226 and 227 of the Constitution of India seeks quashing of F.I.R., being Crime No.334/2016, registered with CIDCO, Aurangabad Police Station and consequential Charge Sheet (No.301/2017) pending before the Court of Judicial Magistrate, First Class, Aurangabad.
2. The facts necessary for deciding the present Writ Petition are as follows :
The petitioner is a resident of Jaipur (Rajasthan State). On 2.11.2015, the Drug Controlling Authority, Jaipur effected raid on the premises falling within the jurisdiction of Shipra Path Police Station, Jaipur. It was found that the petitioner was residing on the said premises. During the search of the premises, it was noticed that, number of drugs were stored on the ground floor, besides the machinery like Mixer, bottling machine, sealing machine, blister packing machine and packing material etc. It was also found that the drugs were manufactured on the very premises. Labels on the containers of the drugs, however, showed it to have been manufactured by M/s Avya Health Care, Rudrapur, District Mandi. On enquiry with the concerned authority, it was found that, no such firm by name Avya Health Care did exist. The drugs and medicines found during the raid came to be seized. Samples thereof were taken. It was further found that the drugs manufactured there, were supplied and sold at Aurangabad, Sangli in the State of Maharashtra and in some other States as well.
On completion of the raid, F.I.R. came to be lodged against the petitioner with Shipra Path Police Station, Jaipur. The petitioner came to be arrested on 3.11.2015. It has been informed that the petitioner has been tried and convicted by the competent Court, at Jaipur. It has further been reported that the petitioner has recently been released on bail by the High Court of Rajasthan.
3. The Controller of Drugs, Rajasthan informed his counterpart in State of Maharashtra about the raid and the supply and sale of drugs to dealers in Maharashtra. The office of Joint Commissioner, Food & Drugs Administration (Aurangabad Division) in turn came to be informed. The Drug Inspector Shri Manoj Ayya (first informant), therefore, visited Richmond Laboratory, Shop No.2, Ganesh Housing Society, CIDCO, Aurangabad on 21.11.2015 and inspected the same. During the inspection, it was found that, some of the drugs manufactured on the premises at Jaipur, were stocked/ stored in the Shop No.2. Samples of the following drugs were obtained for analysis.
(1) TFLOX-OZ Tab, B.No.AAH0947
(2) Coldbee Suspension, B.No.AAH0981
Purchase bills and sale invoices available at the shop came to be seized. The samples of both the drugs have been analysed by the Public Analyst to find that both the drugs did not conform to the standards and thus were spurious. While the F.I.R. was lodged, the Public Analyst's report regarding TFLOX-OZ Tab was available. The report regarding "Coldbee Suspension" was received later on. The Drug Inspector, therefore, lodged the F.I.R. on 14.5.2016, alleging the respondent Richmond Laboratory/ Shop owner Shri Abhijeet Wagdalkar (co-accused) and the petitioner herein, in furtherance of their conspiracy, manufactured, stored and sold spurious drugs. C.R. No.334/2016, therefore, came to be registered for offences punishable under Sections 18(a)(i) read with Section 17-B and Section 27(c) of the Drugs and Cosmetics Act, 1940 (for short the Act) and under Section 420 read with Section 120-B of the Indian Penal Code. The impugned in this petition is this F.I.R. and the charge sheet filed pursuant thereto.
4. We have heard Shri R.R. Mantri, learned counsel appearing for the petitioner and Shri S.B. Yawalkar, learned A.P.P. for the State. We have gone through the relevant record.
5. Learned counsel for the petitioner would submit that, the second F.I.R. (impugned herein) for the same offence cannot be entertained and sustained. Perusal of the F.I.Rs., one lodged at Shipra Path Police Stati
