State of Kerala Vs.
Orison J Francis & ANR  INSC 1863 (4 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1723 OF 2008
(Arising out of SLP (Crl.) No. 6043 of 2007) State of Kerala ..Appellant Versus
Orison J Francis & Anr. ..Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge quashing the
proceedings in CC No. 917 of 2004 in the Court of Chief Judicial Magistrate, Ernakulam.
facts in a nutshell are as follows:
A complaint was filed
alleging commission of offences punishable under Section 18(c) read with
Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940 (in short the `Act').
Allegation was that the three accused persons were manufacturing and selling
and storing DXN Ganocelium (GL) and DXN Rishi and (RG) capsules, which are
drugs within the definition of Section 3(b) of the Act, without a manufacturing
licence. In the complaint M/s. Deshsan Trading (India) Pvt. Ltd. represented by
Abdul Rahmath Puvarasar Abdulla, Director and Abdul Rahmath Pavarsan Abdulla
and Orison J Francis, Branch Manager were arrayed as accused persons Nos. 1 to
3. A petition under Section 482 of the Code of Criminal Procedure, 1973 (in
short the `Code') was filed by the accused No. 1 and 3 who are respondents 1
& 2 in the present appeal. Basic stand before the High Court was that the
alleged drugs seized belonged to "Ayurvedic" category which is dealt
with under Section 3(a) whereas the "Allopathy drugs" are defined
under Section 3(b). Separate Chapter i.e. Chapter IVA deals with Ayurvedic
drugs etc. while Chapter IV deals with "Allopathy drugs". The charge
is that the appellants violated Section 18(c) of Chapter IV, i.e. with respect
to Allopathy Drugs. According to the accused the article sold was food
supplement and at best is only an Ayurvedic proprietary drug. The Drug
Department of State of Tamil Nadu has issued drug licence under Chapter IV-A as
an Ayurvedic drug and thereafter licence was issued by the Food and Drug
Administration, Pondicherry. Hence, sanction under Section 33 M of the Act
ought to have been obtained to launch prosecution, which is lacking. It is also
not established that the person who launched the complaint is a public servant
under Section 21 of the Act. According to them, gazette notification and the
letter of appointment of the complainant/Drug Inspector are insufficient to
satisfy Section 21 or Section 33G. What has been produced is only a transfer order.
It was further contended that the court has not considered the pre-summoning
evidence in the matter. Nowhere it is mentioned in the complaint that the same
has been filed by the complainant in his capacity as public servant and the
examination of the complainant can be dispensed with.
of the present appellant before the High Court was that whether the goods
seized were Ayurvedic Drugs can only be decided in the trial and the threshold
interference by the High Court is not called for. Additionally it was submitted
that the undisputed position being that the respondents did not possess a
licence, the High Court could not have interfered. The mere fact that the
licence was granted subsequently is of no consequence. It was pointed out that
the inspector who made the seizure and filed the complaint was authorized to do
so. In this connection, reference is made to the order dated 3.5.2000
transferring the concerned Drug Inspector from the Drugs Control Society,
Trivendrum to be posted as Drug Inspector in the office of the Assistant Drugs
Controller. Reference is also made to the Notification dated 19.11.2001
relating to the power of inspection of inspectors. It is stated that the
explanatory note has no application because only when the drug is shown to be
Ayurvedic drug, the explanatory note shall have relevance.
counsel for the respondents, on the other hand, submitted that the seized drugs
are nothing but Ayurvedic drugs. The complaint itself was filed after two years
on 2.12.2003, though the seizure was made on much earlier. It is also submitted
that the licence was subsequently granted after a long lapse of about two
years. Same is a factor which has weighed with the High Court and for a
technical breach the proceedings should not continue. The drugs were seized on
12.12.2001 and on the next day itself the respondent had obtained the licence.
the goods in question are Ayurvedic drugs is essentially a matter for trial.
Section 18(c ) of the Act reads as follows:
of manufacture and sale of certain drugs and cosmetics - From such date as may
be fixed by the State Government by notification in the Official Gazette in
this behalf, no person shall himself or by any other person on his behalf.
(c) manufacture for
sale (or for distribution), or sell, or stock or exhibit (or offer) for sale,
or distribute any drug (or cosmetic), except under, and in accordance with the
conditions of a licence issued for such purpose under this Chapter."
a licence was required for dealing with the drugs. The mere fact that the
application for licence was filed, did not entitle the respondent to
manufacture and/or to sell the concerned drugs. The High Court, therefore, was
not justified in quashing the proceedings. This is a not a case where threshold
interference by exercising power under Section 482 of the Code was called for.
scope for interference at the threshold by exercising power under Section 482
of the Code has been succinctly stated by this Court in State of Haryana v.
Bhajan Lal [1992 Supp(1)SCC 335]. In paragraph 102 it was stated as follows:
"In the backdrop
of the interpretation of the various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated by this Court in a series
of decisions relating to the exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following categories of cases by
way of illustration wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the ends of justice,
though it may not be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of cases wherein such power should be
1. Where the allegations
made in the first information report or the complaint, even if they are taken
at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.
2. Where the allegations
in the first information report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
3. Where the
uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence
and make out a case against the accused.
4. Where, the
allegations in the FIR do not constitute a cognizable offence but constitute
only a non- cognizable offence, no investigation is permitted by a police
officer without an order of a Magistrate as contemplated under Section 155(2)
of the Code.
5. Where the allegations
made in the FIR or complaint are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
6. Where there is an
express legal bar engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
7. Where a criminal
proceeding is manifestly attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal grudge.
present case does not belong to any of the aforesaid categories.
appeal is accordingly allowed. We make it clear that we have not expressed any
opinion on the merits of the case.