The police lacked authority to investigate and seize under the Drugs and Cosmetics Act, rendering the FIR invalid due to absence of essential elements of the alleged offences.

Judgment

Mrs. Manjari Nehru Kaul, J.

Petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. for quashing of FIR No.56 dated 18.04.2021 under Sections 420, 120-B of the IPC and Section 7 of Essential Commodities Act and Section 27 of The Drugs and Cosmetics Act registered at Police Station Sector 17, Chandigarh and all consequential proceedings arising therefrom.

2. Learned senior counsel appearing for the petitioner, inter alia, has made the following assertions:-

(i) That the petitioner has been falsely implicated in the case in hand as neither was he named in the FIR in question nor was he present during the police raid at Hotel Taj, Sector-17, Chandigarh. He was arraigned as an accused only in his capacity as a Director of M/s Health Biotech Limited, Baddi, Himachal Pradesh (hereinafter referred to as ‘company’).

(ii) That the essential ingredients for attracting the offence of cheating under Section 420 of the IPC are not made out as there was no allegation levelled in the FIR against the petitioner of having delivered any property or having practiced deception upon any person. Merely being in possession of a request letter addressed to the Government of Himachal Pradesh, seeking permission to sell Remdesivir injections (hereinafter referred to as ‘injections’) in the domestic market, would not qualify as an offence of cheating under Section 420 of the IPC.

(iii) That allegedly on 16.04.2021, the company despatched 11000 injections to Hindaz Corporation, Thane, Maharashtra, despite there being a ban imposed by the Government of India on their export. These injections, however, had been manufactured by the company before the notification of the Government. Due to the ban imposed by the Government, they were returned to the company and did not reach their intended destination. In support, learned senior counsel has further drawn the attention of this Court to Annexure P-15 and asserted that it was not even the case of the prosecution that these injections were meant to be exported out of India.

(iv) That allegedly the police seized a single vial of injection from one Abhishek, during the raid conducted at Hotel Taj, Chandigarh. Additionally, 3000 more injections were subsequently seized from the company’s factory at Baddi. That under Section 22 of The Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act’), the power to conduct any search and seizure vested solely with the Drug Inspector. Any potential prosecution against an accused/petitioner could have only been initiated based on a complaint filed by the Drug Inspector. However, since an FIR had been registered under the Act, it was per se not maintainable in view of the bar of Section 32 of the Act. Hence, the entire search and seizure was illegal and had been carried out by the police by clearly exceeding its jurisdiction.

(v) That even for offences under Essential Commodities Act, the police was not empowered to seize any drugs. Since the Drugs and Cosmetics Act was a special law, wherein the power of seizure had been granted only to the Drug Inspector, it would take precedence over the general provisions of Essential Commodities Act. In support, learned senior counsel has placed reliance upon Atul Garg Versus State of Punjab 2012 (3) R.C.R. (Crl.) 936.

(vi) That even otherwise, the State had miserably failed to demonstrate any violation of either The Drugs and Cosmetics Act or the Essential Commodities Act as it was a matter of record that the company was holding a valid licence to produce and store the injections as was apparent from Annexure P-4. Furthermore, it was not even the case of the prosecution that the petitioner had sold the injections in the domestic market; rather the criminal proceedings by way of the instant FIR had been initiated against the petitioner solely on an assumption that the injections, seized during the raid by the police, might have been sold in the future, domestically without any licence.

3. Learned c