Patna High Court - OrdersVikash Kumar Barnwal vs The State Of Bihar on 26 September, 2014Author:Ashwani Kumar SinghBench:Ashwani Kumar SinghIN THE HIGH COURT OF JUDICATURE AT PATNA
                 Criminal Miscellaneous No.30698 of 2014
   Arising Out of PS.Case No. -188 Year- 2014 Thana -SHRIKRISHNAPURI District- PATNA

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Dhananjay Kumar @ Triloki                                    .... ....    Petitioner/s
                                       Versus
The State of Bihar                                      .... .... Opposite Party/s
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                                        With
                 Criminal Miscellaneous No.31930 of 2014
   Arising Out of PS.Case No. -188 Year- 2014 Thana -SHRIKRISHNAPURI District- PATNA

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Vikash Kumar Barnwal                                          .... ....    Petitioner/s
                                       Versus
The State of Bihar                                      .... .... Opposite Party/s
======================================================
                                        With
                 Criminal Miscellaneous No.33419 of 2014
   Arising Out of PS.Case No. -188 Year- 2014 Thana -SHRIKRISHNAPURI District- PATNA

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Manish Kumar                                                 .... ....    Petitioner/s
                                       Versus
The State of Bihar                                      .... .... Opposite Party/s
======================================================
Appearance :

(In Cr.Misc. No.30698 of 2014)

For the Petitioner     : Mr. Dudh Nath Singh, Advocate
For the Opposite Party :  Mr. S. M. Rahman, APP
(In Cr.Misc. No.31930 of 2014)

For the Petitioner     : Mr. Satya Prakash, Advocate
For the Opposite Party :  Mr. Surendra Kumar, APP
(In Cr.Misc. No.33419 of 2014)

For the Petitioner     : Mr. Binod Kumar Sinha, Advocate
For the Opposite Party : Mr. C. Jawahar, APP
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 2            Patna High Court Cr.Misc. No.30698 of 2014 (4) dt.26-09-2014

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                      CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
                      ORAL ORDER



    4   26-09-2014Since these cases filed underSections 439and440of
                      the Code of Criminal Procedure for grant of bail arise out of a
                      common FIR, they have been heard together.The     petitioners       seek     bail   in   connection   with
                      Shrikrishnapuri P.S. Case No. 188 of 2014 registered for the
                      offences punishable underSections 275,276,468,467,472,473of the Indian Penal Code and 27(b)(ii) and 27(c) of theDrugs
                      and Cosmetics Act, 1940(hereinafter referred to as 'the Act of
                      1940').The case pertains to illegal manufacturing, trade,
                      storage and sell of medicines without any valid license. It is
                      alleged that the petitioners and others have violated the
                      provisions ofSections 18(a),18(b)&18(c)of the Act of 1940
                      which are punishable underSections 27(b) (ii)and27(c)of the
                      Act of 1940. It has further been alleged in the FIR that besides
                      committing offences punishable under the Act of 1940, the
                      petitioners have also committed offences punishable under the
                      penal Code.It has been argued on behalf of the petitioners that the
                      Act of 1940 is a complete Code in itself with regard to
                      manufacture, sell and distribution of Drugs and Cosmetics and in
                      contravention thereof, it has its own sets of authority which has
                      been authorized to take inquiry into the matter including search
                      and seizure or launch prosecution in respect thereof.The Actof
                      1940 is a special statute making out special offence and
                      providing for its inquiry and prosecution.It has further been submitted that in view of the3   Patna High Court Cr.Misc. No.30698 of 2014 (4) dt.26-09-20143/5provision ofSection 4(2)of the Code of Criminal Procedure the
             provisions as prescribed in the special statute under the Act of
             1940 will have to be followed in derogation to the procedure as
             prescribed under theCode of Criminal Procedure. It has been
             contended that special statute has been conferred on the Inspector
             under the Act of 1940 which authorities have not been conferred
             on the police officer.UnderSection 32of the Act of 1940, no prosecution
             can be launched on the basis of a police report submitted underSection 173(2)of the Code of Criminal Procedure. If no
             cognizance of the offence can be taken under the Act of 1940 on
             the basis of police report, institution of the FIR underSection
             154of the Code of Criminal Procedure and investigation
             pursuant thereto underSections 156&157of the Code of
             Criminal Procedure would not be permissible.It has been submitted that merely by writingSections
             275,276,467,468,472&473of the Indian Penal Code in the
             formal FIR, the police cannot assume jurisdiction to investigate
             the case.In this regard, reliance has been placed by learned
             counsel for the petitioners on judgments of this Court in the
             matter ofHindustan Lever Ltd. Vs. State of Bihar and Ors.reported in 1997 BLJR 899 and an un-reported order dated
             21.1.2011 passed by a Division Bench of this Court in Cr. Misc.No. 808 of 1998 (Om Prakash Sah Vs. State of Bihar).On the other hand, learned counsel for the State has
             vehemently opposed the prayer for bail. A counter affidavit duly
             sworn by the informant Sanjeev Kumar, a Drug Inspector, has
             also been filed in Cr. Misc. No. 33419 of 2014. Referring to the4   Patna High Court Cr.Misc. No.30698 of 2014 (4) dt.26-09-20144/5counter affidavit, it has been submitted that the samples of the
             seized drugs were sent for analysis report. Those were found to
             be not as per specification. The manufacturer company has
             confirmed that specimen samples were counterfeit and not
             manufactured by the company concerned.Learned counsel for the State has further submitted that
             there has been a sea-change in the Act of 1940. Since there had
             been wide spread reports regarding the easy movement and
             harmful consequences of adulterated and spurious drugs in the
             country, the Act of 1940 has been amended by Drugs and
             Cosmetics (Amendment) Act, 2008 (hereinafter referred to as
             'the Act of 2008') with effect from 10th August, 2009. It has been
             submitted that by the amendment Act of 2008, every offence
             relating to adulterated or spurious drugs has been made
             cognizable and no person accused of an offence punishable underSections 13,22,27,28,28(a),28(b)and30relating to
             adulterated or spurious drugs should be released on bail until the
             Court is satisfied that there are reasonable grounds for believing
             that he is not guilty of such offence and that he is not likely to
             commit any offence while on bail. He has also submitted that by
             the amendment Act of 2008,Section 32of the Act of 1940 has
             also been substituted.Now, there is a specific provision under Sub-clause (3)
             ofSection 32which prescribes that a person can also be
             prosecuted under any other law for any act of omission which
             constitutes an offence.According to the learned counsel for the State, when
             the special Act itself provides that a person can be prosecuted for
             offences other than theDrugs and Cosmetics Act, the special5              Patna High Court Cr.Misc. No.30698 of 2014 (4) dt.26-09-20145/5Courts under the Act of 1940 shall have the power to try the
                        offences under theIndian Penal Codetogether with the Act of
                        1940. He has further submitted that the judgment in the matter ofHindustan Lever Ltd(supra) was passed prior to the amendment
                        made in the Act of 1940 whereas the subsequent Division Bench
                        judgment has failed to notice the amendments which were
                        notified in Gazette on 10th August, 2009.At this stage, learned counsels for the petitioners have
                        prayed for some time in order to examine the amended provision
                        of law and assist the Court properly in the matter.At the request of the parties, let these cases be listed
                        again under the same heading on 10th October, 2014 for further
                        consideration.(Ashwani Kumar Singh, J.)
        Sanjeet/-U