HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application U/s 482 No. 1097 of 2016

14^th August, 2025

Nipun Gupta ………….Applicant

Versus

State Of Uttarakhand and another ………Respondents ----------------------------------------------------------------------

Presence:-

Mr. Abhishek Verma, learned counsel for the Applicant.

Mr. Deepak Bisht, learned Deputy A.G. for the State.

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Hon’ble Mr. Alok Mahra, J.

The present application under Section 482

of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) has been filed by the applicant seeking quashing of the charge-sheet and the cognizance/summoning order dated 17.08.2015 passed by the learned Chief Judicial Magistrate, Dehradun in Criminal Case No. 2704 of 2015 under Sections 276/420 I.P.C. and Section 18C/27 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “the Act”) and the Drugs and Cosmetics Rules, 1945 as well as the proceedings of the aforesaid

criminal case.

2. Briefly stated, the case of the prosecution is that on 12.06.2015, respondent no.2 along with

other police officials was on patrolling duty when at about 3.50 p.m., they allegedly received information from a Mukhbir that two persons were selling toxic medicines to students and others. Acting on such information, the police intercepted the applicant and a co-accused; that, from the possession of the applicant, 432 capsules of Spasmo Proxyvon Plus and 80 capsules of Spasmocip Plus were allegedly recovered; that, from the possession of the co- accused Rajesh @ Raju, 144 capsules of Spasmo Proxyvon Plus were allegedly recovered. The recovered medicines were sent to the Drug Inspector for report. On receipt of his report, Case Crime No. 172 of 2015 under Sections 276 and 420 IPC and Section 18C/27 of the Drugs and Cosmetics Act, 1940 and the Rules framed thereunder was registered. Upon completion of investigation, the Investigating Officer submitted a charge-sheet against the applicant, whereupon the court below took cognizance and summoned the applicant vide order dated 17.08.2015. Hence, this application.

3. Learned counsel for the applicant would submit that the entire proceedings are vitiated for want of jurisdiction; that, the prosecution has been initiated on the basis of an FIR lodged by respondent no.2, a Sub Inspector of Police, who is not competent under the Act to launch prosecution. Reliance is placed on Section 3(e), Section 21 and Section 32 of the Act which specifically provide that only an Inspector appointed under Section 21 of the Act, or certain other specified authorities, can institute prosecution. Thus, the FIR and consequent charge-sheet filed by a police officer are without authority of law.

4. Learned counsel for the applicant would further submit that the Investigating Officer has mechanically filed the charge-sheet without proper investigation and the learned Magistrate has taken cognizance in a routine manner without considering the statutory mandate. The invocation of Sections 276 and 420 IPC has been done only to overcome the bar under the Drugs and Cosmetics Act, although the ingredients of those offences are wholly absent.

6. Per contra, learned State counsel submits that recovery of contraband medicines from the possession of the applicant stands established and, therefore, the prosecution has rightly been instituted and the trial court has rightly summoned the applicant.

7. On the other hand, learned counsel for the applicant would submit that a bare perusal of the recovery memo reveals that the alleged recovery is stated to have been effected from a highly crowded place; however, the police failed to associate any independent or public witness to support the said recovery. It is further contended that according to the prosecution itself, the applicant was allegedly intercepted on the basis of information that he was selling the medicines in question to students and other persons, yet no effort whatsoever was m