The court ruled that a storekeeper cannot be prosecuted for failing to disclose drug acquisition details if he did not procure the drugs, rendering the trial court's cognizance void.

ORDER :

1. Through the medium of the instant petition filed under Article 226 read with Article 227 of the Constitution, the petitioner herein has prayed for the following reliefs:-

“I. By a writ of certiorari

The complaint and the proceedings initiated by the court of Chief Judicial Magistrate, Srinagar, in complaint file No. 2516002520820140015/14 titled Union of India v. Rajiv Mukul and others under order dated 21.08.2014 may be quashed.

II. By a writ of mandamus

The Amending Act 19 of 1972, whereby the Drugs and Cosmetics Act, 1940 was extended to the State of Jammu & Kashmir be declared ultra vires as violative of Article 370.”

2. The facts giving rise to the filing of the instant petition as stated therein are that the respondents herein filed a complaint against the petitioner herein alongwith others before the Chief Judicial Magistrate, Srinagar (for short the CJM) alleging therein the commission of offences under Section 18-A and 27 (D) of the Drugs and Cosmetics Act, 1940 (for short the Act) alleging that the petitioner herein failed to disclose the particulars from whom alleged sub-standard Drug had been acquired. The drug had been lifted from the stores of the Government Psychiatric Hospital, wherein the petitioner herein was working as a Storekeeper and on account of the said failure of the petitioner herein to disclose the name of the person from whom the said drug was acquired, the petitioner committed offence under Section 18-A of the Act punishable under Section 28 of the Act.

3. The petitioner has maintained the instant petition on the following grounds:

“a. That the complaint indicts the petitioner under Section 18A of the Drugs and Cosmetics Act, 1940, which reads as under:

18 A. Disclosure of the name of the manufacturer, etc. Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.]

As per the dictum laid down by this provision, a person who acquires drugs or cosmetics is mandated to disclose the name and other particulars of the manufacturer from which it is procured. The petitioner under no circumstances falls within the ambit of Section 18A for such kind of disclosure, as the drugs admittedly by the contents of the complaint, are not acquired by him. The drugs in the Hospitals are procured by a devised mechanism to which the participation of the petitioner remains aloof.

Paragraph 15 of the complaint reveals that the Medical Superintendent of Government Psychiatric Diseases Hospital, Srinagar, had procured the drugs in question from the manufacturer and not the petitioner, which he even isn't entitled to do.

Therefore the prosecution launched against the petitioner under Section 18A is ultra vires as the petitioner does not satisfy the edict enunciated by the contents of the said provision.

b. The learned Chief Judicial Magistrate, Srinagar, has disregarded the legal proposition provided by the Act while dealing with offences by the Government Departments and even abandoned the factual disclosures made in the complaint while applying his mind. Section 34A reads as follows:

"34A. Offences by Government Departments.

Where an offence under Chapter 1V or Chapter 1VA has been committed by any department of Government, such authority as is specified by the Central Government to be in charge of manufacture, sale or distribution of drugs or where no authority is specified, the head of the department, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this section shall render any such authority or person liable to any punishment provided in Chapter 1V or Chapter 1VA, as the case may be, if such authority or person proves that the offence was committed without its or his knowledge or that such authority or person exercised all due diligen