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IN THE HIGH COURT OF ALLAHABAD
Raghubar Dayal, J.
GYANENDRA NATH MITTAL - Appellant
Versus
DAMODHAR BHATT - Respondents
Criminal Revision 647 Of 1955
Decided On : 09/05/1957
DRUGS ACT - SECTION 21 - APPOINTMENT OF INSPECTORS - RULE 49 - ULTRA VIRES - SEARCH OF PREMISES - SECTION 22 - POWERS OF INSPECTORS - SECTION 32 (1) - PROSECUTION - SECTION 33 (1) - RULES - SCOPE.
Fact of the Case:
The applicant, a licensed drug seller, filed a complaint against the District Medical Officer of Health (DMOH) for allegedly searching his house without a warrant and abusing him during the search. The DMOH was appointed as an ex officio Inspector under the Drugs Act, 1940, for the purpose of inspecting retail shops.
Finding of the Court:
The court held that the appointment of the DMOH as an Inspector for the purpose of inspecting retail shops was ultra vires the rule-making power of the government under Section 21 of the Drugs Act, 1940, as the Act did not contemplate the appointment of Inspectors for different purposes.
Issues: 1. Whether the appointment of the DMOH as an Inspector for the purpose of inspecting retail shops was valid. 2. Whether the DMOH had the power to search the applicant's house. 3. Whether the DMOH was acting in the discharge of his duties when he allegedly abused the applicant.
Ratio Decidendi: 1. The court held that the last proviso to Rule 49 of the Drugs Rules, 1945, which provided for the appointment of Inspectors for different purposes, was ultra vires the rule-making power of the government under Section 21 of the Drugs Act, 1940, as the Act did not contemplate the appointment of Inspectors for different purposes. 2. The court held that the DMOH, as an Inspector appointed for the purpose of inspecting retail shops, had the power to search the applicant's house under Rule 51 (7) of the Drugs Rules, 1945, which empowered Inspectors to make enquiries and inspections necessary to detect the sale of drugs in contravention of the Act. 3. The court held that the DMOH was not acting in the discharge of his duties when he allegedly abused the applicant, as the alleged abuse was not related to the performance of his duties as an Inspector.
Final Decision: The court allowed the revision petition, set aside the order of the lower court, and sent back the case to the Magistrate's Court for further proceedings in accordance with law.
( 1 ) THIS is a revision by Gyanendra Nath Mittal against the dismissal of his complaint under sections 456 and 504,. P. C. , against Sri Damodar Bhatt, District Medical Officer of Health, pauri, on the ground that it was not maintainable for want of sanction under Section 197, Cr. P. C.
( 2 ) THE opposite party was the District Medical Officer of Health at Paur. Under a notification of the local Government all Medical Officers of Health were appointed ex officio Inspectors for the purpose of inspection of retail shops in their respective jurisdiction. The applicant held a licence for the sale of drugs other than poisonous upto 7-8-1953 when it was cancelled by the opposite party. It is alleged that on 21-8-1953, Dr. Bhatt entered the house of the applicant for the purpose of searching it in spite of the protest of the applicant and abused him during the course of the search. The applicant filed the complaint against Dr. Bhatt with respect to committing the offences under Sections 456 and 504,. P. C.
( 3 ) THREE points have been raised for the applicant. The first is that the notification appointing the district Medical Officers of Health ex officio Inspectors under the Drugs Act (Act XXIII of 1940), is bad as it makes no reference to those persons satisfying the requirements laid down in rule 49 framed by the Provincial Government. Reliance is placed on the judgment in Govt. Appeal No. 1148 of 1950 (All) (A ). That case does not apply to the present case as there the Inspector appointed was for the inspection of both wholesale and retail shops as well, and Rule 49 contemplates a set of qualifications about the possession of which by that particular Inspector, there was no evidence on the record. The appointment of Dr. Bhatt for the purposes of inspection of retail shops comes under the 3rd proviso to Rule 49, which has provided further that for the purposes of inspection of retail shops in any specified area any officer of the medical or pubjic health department who is a registered medical practitioner or a graduate in science may be appointed an ex officio Inspector. Dr. Bhatt is an officer of the public health department and is also a registered medical practitioner. His appointment as ex officio Inspector for the purposes of inspecting retail shops is justified by rule 49.
( 4 ) THE second point urged for the applicant is that as an Inspector for the purposes of inspecting retail shops Dr. Bhatt could not have taken search of his house. It is urged that he could have simply inspected his retail shop. The contention would appear to be correct if attention be paid to the expression for the purposes of inspecting retail shops used in the notification appointing medical Officers of Health ex officio Inspectors. This expression means that he could just carry out inspections of retail shops. There is, however, rule 51 which lays down the duties of the Inspectors authorised for inspection of premises licensed for sale. Sub-rule (7) is that subject to the instructions of the controlling authority, it shall be the duly of an Inspector authorised to inspect premises licensed for the sale of drugs to make such enquiries and inspections as may be necessary to detect the sale of drugs in contravention of the Act. Thus it appears that the duties entrusted to the Inspectors conveniently called inspectors lor the purpose of inspection of retail shops cover a wider range than mere inspection of retail shops. Dr. Bhatt could, therefore, search any premises in order to detect any sale of drugs in contravention of the Act. Ostensibly he conducted the search of the applicants house for such a purpose.
( 5 ) THE third contention raised is that the alleged abusing by Dr. Bhatt could not have been in the discharge of his duties. This contention is sound and is not disputed for the State. The case against Dr. Bhatt for an offence under Section 504,. P. C. , could proceed without the sanction of the proper authority under Section
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