2021 Supreme(Pat) 866

IN THE HIGH COURT OF PATNA
ASHWANI KUMAR SINGH, VIKASH JAIN, AHSANUDDIN AMANULLAH, RAJENDRA KUMAR MISHRA, CHAKRADHARI SHARAN SINGH, JJ.
Bablu @ Rajesh Kumar - Appellant
Versus
The State Of Bihar And Others - Respondent
CWJC No. 887, 899 of 2013
Decided on : 12-04-2021

Headnote:

Rules of the High Court at Patna, 1916 – Rule 1 of Chapter V read with Rule 12 of Chapter II – Reference to larger Bench – It is not the issue referred alone that is before Full Bench but entire case is placed before Full Bench for decision – In present case, what has been referred for decision are not only points of law but also usage having force of law as also the case – A decision not merely mean conclusion but it embraces within its fold reasons which form basis for arriving at conclusion – Present Bench is competent not only to look into issues referred to it but also subsidiary and ancillary issues arising therefrom. (Paras 38, 39 and 40)

Criminal Law – Administration of Criminal Justice – "Crime never dies" is general rule of criminal justice – As time passes, testimony of witnesses becomes weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with result that danger of error becomes greater – Victims may have lost their energy to pursue and witnesses may themselves have moved on – Deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before offence has been wiped off memory of persons concerned – Sense of social retribution which is one of purposes of criminal law loses its edge after expiry of long period – Delay compounds ordeal of victims and inordinate delay produces unknown variables that do away with idea of fair trial – To maintain purity of streams of justice and fair play as also balancing of rights of accused and that of victims and society, Courts are called upon to forge new idioms of engagement with criminal justice system – Police officer in instituting FIR was not an usurper or intruder but was discharging duties under colour of lawful authority which has now been held to be unlawful by interpretation – They need to be saved as a matter of policy and necessity to protect interest of public and society at large. (Paras 48, 49, 50 and 54)

Doctrine – De facto doctrine envisages that unless an authority is an outright usurper or intruder acts performed by said authority in lawful exercise of his powers shall be valid and be saved on account of public necessity and to avoid inconvenience to those who unknowingly acquiesced acts performed de facto by said authority – De facto doctrine saves actions carried out from being declared as null and void – All previous acts of police officer including investigation and material collected in course of investigation shall be saved on account of de facto doctrine and proceedings pending too shall be saved and only prosecution shall be handed over to Drug Inspector who shall prosecute through Public Prosecutor or Special Public Prosecutor, as the case may be. (Paras 56 and 57)

Drugs and Cosmetics Act, 1940 – Section 32 – Whether it is a complaint or an FIR which would lie under Drugs and Cosmetics Act, 1940 – Police has no power to institute and investigate offences under Chapter III, Chapter IV and Chapter IV-A of Drugs and Cosmetics Act, 1940 – Offences under Chapter IV-A are not to be tried by court of Sessions and except offences under Clauses (a) and (b) of Section 13 of Drugs and Cosmetics Act, 1940, all other offences under Chapter III would be triable by a court of Judicial Magistrate – When imported drugs and cosmetics are distributed, or sold, or stocked, or exhibited, or offered for sale, they would be covered by Chapter IV of Drugs and Cosmetics Act, 1940 – Prosecution under Section 32 of Drugs and Cosmetics Act, 1940 shall be instituted only by way of filing of complaint and that police cannot register and investigate offences under Chapter IV of the Drugs and Cosmetics Act, 1940 – In FIRs instituted in respect of offences under Chapter III and IV of Drugs and Cosmetics Act, 1940 prior to judgment of Supreme Court in case of Ashok Kumar Sharma (2020 SCC OnLine SC 683) and where investigation has been completed and cognizance has been taken by court and cases have travelled beyond stage of cognizance shall be saved and prosecution shall continue as per provisions prescribed under Cr.P.C. – Cases in which FIRs were instituted in respect of offences under Chapter III and IV of Drugs and Cosmetics Act, 1940 prior to judgment of Supreme Court in the case of Ashok Kumar Sharma (2020 SCC OnLine SC 683) and where investigations have not been completed, all previous acts of police officer including investigation and material collected in course of investigation and pending proceedings shall be saved on account of de facto doctrine and only prosecution of cases shall be handed over to concerned Drug Inspector, who shall prosecute through Public Prosecutor or Special Public Prosecutor, as the case may be – In such cases any action taken by police, except handing over case to Drug Inspector, after judgment of Supreme Court in case of Ashok Kumar Sharma (2020 SCC OnLine SC 683) shall be a nullity in eye of law – Directions issued. (Para 89)

Cases Referred:

Hindustan Lever Ltd. vs. State of Bihar, 1997(1) BLJ 899 – Referred.

Om Prakash Singh vs. State of Bihar, Cr. Misc. No. 50246 of 2006; Cr.W.J.C. No. 719 of 1998; Cr. Misc. No. 808 of 1998 – Approved.

Raghunath Bhagat vs. State of Bihar, 1991 Cr.L.J. 2054; Assistant Electrical Engineer vs. Satyendra Rai, 2012(1) PLJR 476 (SC); Vishal Agrawal vs. Chhattisgarh State Electricity Board, AIR 2014 SC 1539 – Referred.

Union of India vs. Ashok Kumar Sharma, 2020 SCC OnLine SC 683; Kerala State Science & Technology Museum vs. Rambal Co., (2006) 6 SCC 258; State of Punjab vs. Salil Sabhlok, (2013) 5 SCC 1; State of A.P. vs. Bodem Sundara Rao, (1995) 6 SCC 230; State of Gujarat vs. Hon'ble High Court of Gujarat, (1998) 7 SCC 392; Fainul Khan vs. State of Jharkhand, 2020 (2) BLJ 362 (SC) : (2019) 9 SCC 549; Japani Sahoo vs. Chandra Sekhar Mohanty, 2007 (4) BLJ 67 (SC) : (2007) 7 SCC 394; State of Haryana vs. Haryana Cooperative Transport Ltd., (1977) 1 SCC 271; State of Telangana vs. Managipet, 2020 (1) BLJ 263 (SC) : (2019) 19 SCC 87 – Relied.

Per Chakradhari Sharan Singh, J.)[Dissenting View]

General Clauses Act, 1897 – Section 6-A – Repeal of an Amendment Act is not intended to bring any change in law but to remove such enactments which become unnecessary after having served their purpose of imparting amendment to main Act. (Para 120)

Interpretation of Statute – Rule of ejusdem generis is an important tool of statutory interpretation, which suggests that when particular words pertaining to a class, category or genus are followed by general words, general words are construed as limited to things of same kind as those specified – This rule reflects an attempt to reconcile incompatibility between specific and general words so that all words in a statute are given effect and no words in a statute are presumed to be superfluous – Intention of Legislature is to be gathered from language used in an enactment – Court has not only to be conscious about what has been stated in a statute but also what has not been stated – While interpreting it, a grammatical and ordinary sense of words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with rest of instrument, in which case grammatical and ordinary sense of words may be modified so as to avoid that absurdity or inconsistency, but no further. (Paras 149 and 152)

Drugs and Cosmetics Act, 1940 – Sections 32 and 33M – Power of Police to investigate cases – Though initially only Inspector was authorised to institute a prosecution for offences under Chapter IV of Act, subsequent amendments in the Act disclose clear legislative intent to permit institution of criminal case by persons other than Inspector – Nature of proscription in institution of prosecution as imposed under Section 32 under Chapter IV and 33M under Chapter IVA are not available for offences punishable under Chapter III of Act – Institution of prosecution for offences punishable under Chapter III in any legally permissible manner or by any person, including by registration of FIR for offences which are cognizable, is not barred by virtue of Section 32 of Act, which falls under Chapter IV – No prosecution for an offence punishable under Sections 33-I and 33J, which are under Chapter IVA of Act can be instituted, except by an Inspector with previous sanction of authority specified under sub-section (4) of Section 33G of Act – Section 32 of Act is attracted only in respect of offences which have been defined and made punishable under Chapter IV of Act – In similar manner, Section 33M of Act is attracted in respect of offences punishable under Sections 33-I and 33J under Chapter IVA of Act. (Paras 133, 136, 137, 141 and 160)