# Dr. Shail Kumar Jain v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 1192
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-27
- **Case number:** Application U/S 482. No. 7244 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-shail-kumar-jain-v-state-of-u-p-anr-50517
- **Pages:** 9

## Headnote

Criminal Law - Drugs and Cosmetics Act,
1940 - Sections 17B, 17A(e), 18A & 27 -
Drugs and Cosmetics Rules, 1945 - Rule
123, Schedule K - Against summoning
order - Applicant is registered medical
practitioner - After taking sample of
medicine, sent to Lab, examined, found
against norms, notice issued and after
receiving
reply,
complaint
filed
by
8 All. Dr. Shail Kumar Jain Vs. State of U.P. & Anr.
1193
departmental
authorities,
for
taking
decision, authorities taken four years - For
justifying delay, again notice served,
prima
facie,
insufficient
to
explain
inordinate delay - Sample which was
taken, comes under Schedule 'K' of Rule
123 of Rules, 1945 but authorities ignored
provisions of exemption clause - From
bare
perusal
of
impugned
order,
it
transpires that reasons has not recorded,
only mentioned that Court looked into
complaint
and
available
record
-
Compliance of provisions of Section 33M
of Act 1940 not done by authorities,
mandate of due procedure violated -
Matter remitted back. (Para 2, 16 to18,
20)

Application allowed. (E-14)

List of Cases cited:

## Text

1192 INDIAN LAW REPORTS ALLAHABAD SERIES
binding on the criminal courts. Further, in
case of the civil proceedings pending and
the order passed for maintaining status quo
by the parties or any ad interim order is in
existence, the jurisdiction under section
145 of Cr.P.C. cannot be invoked.

21. This Court is of considered
opinion that the matter pertaining to the
civil dispute can very well be dealt with,
while exercising powers conferred on civil
court under Sections 94 and 151 of C.P.C.
The civil court is a proper forum to exhaust
the civil grievances and for protecting the
interest of the parties. For resolving the
civil dispute, opening door for the criminal
proceedings would not be justifiable as the
same would lead not only multiplicity of
the litigations but that would also amount
to give colour of criminality to a civil
dispute.

22. It is also opinion of this Court that
if the civil suit is pending between the
parties and, prima facie, it seems that the
dispute is civil in nature and no interim
order is passed, even then the criminal
proceedings under Section 145 (1) Cr.P.C.
cannot be permitted and in such event, civil
court can exercise its power conferred
under Sections 94 and 151 of C.P.C.

23. So far as the present case is
concerned, the proceedings under section
145 (1) of Cr.P.C. was instituted during the
pendency of the suit for division of
holdings of the property in question, before
the Sub-Divisional Officer and an interim
order was passed with the direction to the
parties to maintain status-quo over there.
Further, the order for maintaining status
quo was continuing in all the proceedings,
pending before the trial court and the
appellate court and now is also running in
the second appeal pending before Board of
Revenue. In such circumstances, the
proceeding under section 145 (1) of Cr.P.C.
is not maintainable.

24. Resultantly, the order dated
11.07.2018 passed by the Sub-Divisional
Magistrate, Jamunaha dated, in Case No.
T201808620302227 and order of the
Revisional Court dated 05.08.2019, passed
by Additional Sessions Judge/Fast Track-
(II), Shravasti, are hereby set aside.

25. With the aforesaid observations
and directions, the instant application is
allowed.

26. Consequences shall be followed.
----------
(2023) 8 ILRA 1192
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.07.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 7244 of 2023

Dr. Shail Kumar Jain ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shiv P. Shukla

Counsel for the Opposite Parties:
G.A.

Criminal Law - Drugs and Cosmetics Act,
1940 - Sections 17B, 17A(e), 18A & 27 -
Drugs and Cosmetics Rules, 1945 - Rule
123, Schedule K - Against summoning
order - Applicant is registered medical
practitioner - After taking sample of
medicine, sent to Lab, examined, found
against norms, notice issued and after
receiving
reply,
complaint
filed
by
8 All. Dr. Shail Kumar Jain Vs. State of U.P. & Anr.
1193
departmental
authorities,
for
taking
decision, authorities taken four years - For
justifying delay, again notice served,
prima
facie,
insufficient
to
explain
inordinate delay - Sample which was
taken, comes under Schedule 'K' of Rule
123 of Rules, 1945 but authorities ignored
provisions of exemption clause - From
bare
perusal
of
impugned
order,
it
transpires that reasons has not recorded,
only mentioned that Court looked into
complaint
and
available
record
-
Compliance of provisions of Section 33M
of Act 1940 not done by authorities,
mandate of due procedure violated -
Matter remitted back. (Para 2, 16 to18,
20)

Application allowed. (E-14)

List of Cases cited:

1. Anil Kumar & ors. Vs M.K.Aiyappa & anr.,
reported in (2013)10 Supreme Court Cases,705,
(Para 11)

2. Maksud Saiyed Vs St. of Guj. & ors., reported
in (2008) 5 Supreme Court Cases 668, (Para 13)

3. Priyanka Srivastava & anr. Vs St. of Uttar
Pradesh & ors., reported in (2015) 6 Supreme
Court Cases 287, (Para 20 to 22, 26 to 28)

4. S. Athilakshmi Vs St. Rep. by the Drugs
Inspector, 2023 SCC OnLine SC 269, (Para 21)
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Shiv P. Shukla, learned
counsel for the applicant and Sri Aniruddh
Kumar Singh, learned AGA-I and Mrs.
Nusrat Jahan learned AGA for the State.

2. By means of the instant application
a prayer is made to quash the criminal
proceedings of criminal case no 1437 of
2022 (state of U.P. versus Shail Kumar
Jain) under section 17B/17A(e)/18A/27
Drugs & Cosmetics Act, 1940 against the
applicant
registered
for
an
offence
punishable under Section 27 (d) of the
Drugs and Cosmetics Act, 1940 ('the Act'
for short) as well as summoning order
dated 19-07-2023.

3. The learned counsel appearing for
the applicant submits that in fact, the
present applicant is a lawful degree holder
of BAMS course from Lucknow University
and it is not disputed even by the
complainant, but a complaint has been
instituted
under
section
17B
/17A(e)/18A/27 Drugs & Cosmetics Act
1940 (Hereinafter referred as 'the Act
1940') before the Additional District and
Sessions, Judge NDPS Act, Lucknow. He
submits that once the samples were taken
and notice was issued, the present applicant
has replied though the same was kept for a
long period of time for deciding, i.e., for
about four years and thereafter again a
notice was served which was immediately
replied by the present applicant but
ignoring all this, complaint has been filed
against the applicant on nonest grounds.
Adding his arguments, he submits that so
far as the provision of Section 33M of the
'Act 1940' is concerned, it says that no
prosecution under this chapter shall be
instituted except by an Inspector (with the
previous sanction of the authority specified
under sub-section (4) of Section 33G which
is missing in the instant matter and this fact
has been ignored by the learned trial Court
while summoning the applicant.

4. He next contended that the Rule
123 of the Drug Rules, 1945 (hereinafter
referred to as 'Rules 1945') is with respect
to exemption clause and the same is quoted
hereinunder:-

"123. The drugs specified in
Schedule K shall be exempted from the
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Chapter IV of the Act and the
rules made thereunder to the extent and
subject to the conditions specified in that
Schedule."

5. Referring to aforesaid, he submits
that it provides that the drugs specified in
'Schedule K' shall be exempted from the
provisions of Chapter IV of the Act and
rules made thereunder to the extent of
subject and condition specified in the
Schedule. He submits that the drug for
which the sample was taken, comes under
the purview of the scheduled drugs which
is in 'Schedule K' of the 'Rules, 1945' and
the same comes under the exemption clause
and therefore no complaint can be lodged
for the said offence.

6. Further contention of the learned
counsel for the applicant is that the
summoning order, which is impugned in
this complaint itself is erroneous and is
against the settled proposition of law, as no
reason has been recorded while summoning
the accused/present applicant. He submits
that the Hon. Apex Court in catena of
judgements, has held that once the
Magistrate summons an accused, while
passing the summoning order, the detailed
reason is to be recorded but so far as the
present matter is concerned, the reasons
have not been recorded by the trial court.

7. In support of his contentions, he
has placed reliance on the Judgment of the
Apex Court rendered in the case of Anil
Kumar and Others Versus M.K.Aiyappa
and Another, reported in (2013)10
Supreme Court Cases,705 and has placed
reliance on paragraph no. 11 of the said
Judgment, which is quoted hereinunder :-

"11. The scope of Section 156(3)
CrPC came up for consideration before
this Court in several cases. This Court in
Maksud
Saiyed
case
examined
the
requirement of the application of mind by
the
Magistrate
before
exercising
jurisdiction under Section 156(3) and held
that where jurisdiction is exercised on a
complaint filed in terms of Section 156(3)
or Section 200 CrPC, the Magistrate is
required to apply his mind, in such a case,
the Special Judge/Magistrate cannot refer
the matter under Section 156(3) against a
public servant without a valid sanction
order. The application of mind by the
Magistrate should be reflected in the order.
The mere statement that he has gone
through the complaint, documents and
heard the complainant, as such, as
reflected in the order, will not be sufficient.
After
going
through
the
complaint,
documents and hearing the complainant,
what weighed with the Magistrate to order
investigation under Section 156(3) CrPC,
should be reflected in the order, though a
detailed expression of his views is neither
required nor warranted. We have already
extracted the order passed by the learned
Special Judge which, in our view, has
stated
no
reasons
for
ordering
investigation".

8. Referring the aforesaid, he submits
that the Apex Court while dealing with the
matter in terms of section 156(3) of Cr.P.C.
or Section 200 Cr.P.C. has held that the
Magistrate is required to apply it's mind
and the application of mind by the
Magistrate must be reflected in the order
and the mere statement that he has gone
through the complaint,documents and heard
the complainant, will not be sufficient.

9. He has further placed reliance on
the Judgment of the Apex Court in the case
of Maksud Saiyed Versus State of
Gujarat and Others, reported in (2008)5
8 All. Dr. Shail Kumar Jain Vs. State of U.P. & Anr.
1195
Supreme Court Cases 668 and has
referred paragraph no. 13 of the said
Judgment, which is quoted hereinunder :-

"13. Where a jurisdiction is
exercised on a complaint petition filed in
terms of Section 156(3) or Section 200 of
the Code of Criminal Procedure, the
Magistrate is required to apply his mind.
The Penal Code does not contain any
provision for attaching vicarious liability
on the part of the Managing Director or the
Directors of the Company when the
accused is the Company. The learned
Magistrate failed to pose unto himself the
correct question viz. as to whether the
complaint petition, even if given face value
and taken to be correct in its entirety,
would lead to the conclusion that the
respondents herein were personally liable
for any offence. The Bank is a body
corporate.
Vicarious
liability
of
the
Managing Director and Director would
arise provided any provision exists in that
behalf in the statute. Statutes indisputably
must
contain
provision
fixing
such
vicarious liabilities. Even for the said
purpose, it is obligatory on the part of the
complainant to make requisite allegations
which
would
attract
the
provisions
constituting vicarious liability."

10. Placing reliance on the abovesaid
Judgement, he submits that the Apex Court
has also reiterated the analogy that the
application of mind is essential while
dealing with the application under section
156(3) of Cr.P.C.

11. Again, he has placed reliance on
the Judgment of the Apex Court in the Case
of Priyanka Srivastava And Another Vs
State of Uttar Pradesh and Others,
reported in (2015) 6 Supreme Court
Cases 287 and has referred paragraph nos.
20,21,22,26,27 & 28, which are quoted
hereinunder :-

"20. The learned Magistrate, as
we find, while exercising the power under
Section 156(3) CrPC has narrated the
allegations and, thereafter, without any
application of mind, has passed an order to
register an FIR for the offences mentioned
in the application. The duty cast on the
learned Magistrate, while exercising power
under Section 156(3) CrPC, cannot be
marginalised. To understand the real
purport of the same, we think it apt to
reproduce the said provision:

"156.Police officer's power to
investigate cognizable case.-(1) Any
officer in charge of a police station
may, without the order of a Magistrate,
investigate any cognizable case which
a court having jurisdiction over the
local area within the limits of such
station would have power to inquire
into or try under the provisions of
Chapter XIII.

(2) No proceeding of a police
officer in any such case shall at any stage
be called in question on the ground that the
case was one which such officer was not
empowered
under
this
section
to
investigate.

(3) Any Magistrate empowered
under Section 190 may order such an
investigation as abovementioned."

21. Dealing with the nature of
power exercised by the Magistrate under
Section 156(3) CrPC, a three-Judge Bench
in Devarapalli Lakshminarayana Reddy v.
V. Narayana Reddy [(1976) 3 SCC 252 :
1976 SCC (Cri) 380] , had to express thus :
(SCC p. 258, para 17)
1196 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. ... It may be noted further
that an order made under sub-section (3) of
Section 156, is in the nature of a
peremptory reminder or intimation to the
police to exercise their plenary powers of
investigation under Section 156(1). Such an
investigation
embraces
the
entire
continuous process which begins with the
collection of evidence under Section 156
and ends with a report or charge-sheet
under Section 173."

22. In Anil Kumar v. M.K.
Aiyappa , the two-Judge Bench had to say
this : (SCC p. 711, para 11)

"11. The scope of Section 156(3)
CrPC came up for consideration before
this Court in several cases. This Court in
Maksud Saiyed [Maksud Saiyed v. State of
Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC
(Cri) 692] examined the requirement of the
application of mind by the Magistrate
before exercising jurisdiction under Section
156(3) and held that where jurisdiction is
exercised on a complaint filed in terms of
Section 156(3) or Section 200 CrPC, the
Magistrate is required to apply his mind, in
such a case, the Special Judge/Magistrate
cannot refer the matter under Section
156(3) against a public servant without a
valid sanction order. The application of
mind by the Magistrate should be reflected
in the order. The mere statement that he
has gone through the complaint, documents
and heard the complainant, as such, as
reflected in the order, will not be sufficient.
After
going
through
the
complaint,
documents and hearing the complainant,
what weighed with the Magistrate to order
investigation under Section 156(3) CrPC,
should be reflected in the order, though a
detailed expression of his views is neither
required nor warranted. We have already
extracted the order passed by the learned
Special Judge which, in our view, has
stated
no
reasons
for
ordering
investigation."

26. At this stage, we may usefully refer
to what the Constitution Bench has to say
in Lalita Kumari v. State of U.P. [(2014) 2
SCC 1 : (2014) 1 SCC (Cri) 524] in this
regard. The larger Bench had posed the
following two questions : (SCC p. 28, para
30)

"(i) Whether the immediate nonregistration of FIR leads to scope for
manipulation by the police which affects
the right of the victim/complainant to have
a complaint immediately investigated upon
allegations being made; and

(ii) Whether in cases where the
complaint/information does not clearly
disclose the commission of a cognizable
offence but the FIR is compulsorily
registered then does it infringe the rights of
an accused."

Answering the questions posed,
the larger Bench opined thus : (Lalita
Kumari case [(2014) 2 SCC 1 : (2014) 1
SCC (Cri) 524] Lalita Kumari v. State of
U.P., SCC pp. 35-36, 41 & 58-59, paras
49, 72, 111 & 115)

"49. Consequently, the condition
that is sine qua non for recording an FIR
under Section 154 of the Code is that there
must be information and that information
must disclose a cognizable offence. If any
information disclosing a cognizable offence
is led before an officer in charge of the
police station satisfying the requirement of
Section 154(1), the said police officer has
no other option except to enter the
substance thereof in the prescribed form,
that is to say, to register a case on the basis
8 All. Dr. Shail Kumar Jain Vs. State of U.P. & Anr.
1197
of such information. The provision of
Section 154 of the Code is mandatory and
the officer concerned is duty-bound to
register
the
case
on
the
basis
of
information
disclosing
a
cognizable
offence. Thus, the plain words of Section
154(1) of the Code have to be given their
literal meaning.

72. It is thus unequivocally clear
that registration of FIR is mandatory and
also that it is to be recorded in the FIR
book by giving a unique annual number to
each FIR to enable strict tracking of each
and every registered FIR by the superior
police officers as well as by the competent
court to which copies of each FIR are
required to be sent.

***

111. ... the Code gives power to the
police to close a matter both before and after
investigation. A police officer can foreclose
an FIR before an investigation under Section
157 of the Code, if it appears to him that
there is no sufficient ground to investigate the
same. The section itself states that a police
officer can start investigation when he has
'reason to suspect the commission of an
offence'. Therefore, the requirements of
launching an investigation under Section 157
of the Code are higher than the requirement
under Section 154 of the Code. The police
officer can also, in a given case, investigate
the matter and then file a final report under
Section 173 of the Code seeking closure of
the matter. Therefore, the police is not liable
to launch an investigation in every FIR which
is mandatorily registered on receiving
information relating to commission of a
cognizable offence.

115.
Although,
we,
in
unequivocal terms, hold that Section 154 of
the
Code
postulates
the
mandatory
registration of FIRs on receipt of all
cognizable offences, yet, there may be
instances where preliminary inquiry may
be required owing to the change in genesis
and novelty of crimes with the passage of
time. One such instance is in the case of
allegations relating to medical negligence
on the part of doctors. It will be unfair and
inequitable
to
prosecute
a
medical
professional only on the basis of the
allegations in the complaint."

emphasis in original)

After so stating the Constitution
Bench [(2014) 2 SCC 1 : (2014) 1 SCC
(Cri) 524] proceeded to state that where a
preliminary enquiry is necessary, it is not
for
the
purpose
for
verification
or
otherwise of the information received but
only to ascertain whether the information
reveals any cognizable offence. After laying
down so, the larger Bench proceeded to
state : (Lalita Kumari case [(2014) 2 SCC
1 : (2014) 1 SCC (Cri) 524] , SCC p. 61,
para 120)

"120.6. As to what type and in
which cases preliminary inquiry is to be
conducted will depend on the facts and
circumstances of each case. The category
of cases in which preliminary inquiry may
be made are as under:

(a) Matrimonial disputes/family
disputes\

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e)
Cases
where
there
is
abnormal
delay/laches
in
initiating
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal prosecution, for example, over 3
months' delay in reporting the matter
without
satisfactorily
explaining
the
reasons for delay.

The
aforesaid
are
only
illustrations and not exhaustive of all
conditions which may warrant preliminary
inquiry.

120.7.
While
ensuring
and
protecting the rights of the accused and the
complainant, a preliminary inquiry should
be made time-bound and in any case it
should not exceed 7 days. The fact of such
delay and the causes of it must be reflected
in the general diary entry."

We have referred to the aforesaid
pronouncement for the purpose that in
certain circumstances the police is also
required to hold a preliminary enquiry
whether any cognizable offence is made out
or not.

27. Regard being had to the
aforesaid enunciation of law, it needs to be
reiterated that the learned Magistrate has
to remain vigilant with regard to the
allegations made and the nature of
allegations and not to issue directions
without proper application of mind. He has
also to bear in mind that sending the matter
would be conducive to justice and then he
may pass the requisite order. The present is
a case where the accused persons are
serving in high positions in the Bank. We
are absolutely conscious that the position
does not matter, for nobody is above the
law. But, the learned Magistrate should
take note of the allegations in entirety, the
date
of
incident
and
whether
any
cognizable case is remotely made out. It is
also to be noted that when a borrower of
the financial institution covered under the
Sarfaesi Act, invokes the jurisdiction under
Section 156(3) CrPC and also there is a
separate procedure under the Recovery of
Debts Due to Banks and Financial
Institutions Act, 1993, an attitude of more
care, caution and circumspection has to be
adhered to.

28. Issuing a direction stating "as
per the application" to lodge an FIR
creates a very unhealthy situation in
society and also reflects the erroneous
approach of the learned Magistrate. It also
encourages unscrupulous and unprincipled
litigants, like Respondent 3, namely,
Prakash Kumar Bajaj, to take adventurous
steps with courts to bring the financial
institutions on their knees. As the factual
exposition would reveal, Respondent 3 had
prosecuted the earlier authorities and after
the matter is dealt with by the High Court
in a writ petition recording a settlement, he
does not withdraw the criminal case and
waits for some kind of situation where he
can take vengeance as if he is the emperor
of all he surveys. It is interesting to note
that during the tenure of Appellant 1, who
is presently occupying the position of VicePresident, neither was the loan taken, nor
was the default made, nor was any action
under the Sarfaesi Act taken. However, the
action under the Sarfaesi Act was taken on
the second time at the instance of the
present Appellant 1. We are only stating
about the devilish design of Respondent 3
to harass the appellants with the sole intent
to avoid the payment of loan. When a
citizen avails a loan from a financial
institution, it is his obligation to pay back
and not play truant or for that matter play
possum. As we have noticed, he has been
able to do such adventurous acts as he has
the embedded conviction that he will not be
taken to task because an application under
Section
156(3)
CrPC
is
a
simple
8 All. Dr. Shail Kumar Jain Vs. State of U.P. & Anr.
1199
application to the court for issue of a
direction to the investigating agency. We
have been apprised that a carbon copy of a
document is filed to show the compliance
with Section 154(3), indicating it has been
sent to the Superintendent of Police
concerned."

12. During the course of his argument
he has further placed reliance on the
judgement reported in 2023 SCC OnLine
SC 269, S. Athilakshmi Vs. State Rep. by
the Drugs Inspector and has referred
paragraph 21 of the above said judgement.
Paragraph 21 of the aforesaid judgement is
quoted hereinunder:-

"21. The sanctioning authority
had not examined at all whether a
practising doctor could be prosecuted
under the facts of the case, considering the
small quantity of the drugs and the
exception created in favour of medical
practitioner under Rule 123, read with the
Schedule "K". All these factors ought to
have been considered by the sanctioning
authority. Under these circumstances we
allow this appeal and set aside the order of
the learned Single Judge of the Madras
High Court and quash the criminal
proceedings in Criminal Case No. 7315 of
2018 on the file of X Metropolitan
Magistrate, Egmore, Chennai."

13. Placing reliance on the abovesaid
Judgment, he submits that the factual
matrix of the present case is identical to the
case of S. Athilakshmi (supra) as in that
case also, the prosecution was initiated
against a practising doctor considering the
small quantity of drugs and the same was
held by the Apex Court as exempted under
Rule 123 read with the Schedule 'K' of the
Rules 1945. Likewise, in the present case
also, the sanctioning authority has not taken
care of provisions of exemption clause and
the Schedule 'K' of the Rules 1945, which
is a clear cut violation of mandate of law
and,
therefore,
the
whole
criminal
proceedings initiated against the present
applicant vitiates in the eyes of law.

14. Concluding his arguments,
learned counsel for the applicant submits
that the summoning order dated 19.7.2023
is not only erroneous and unlawful but it is
against the settled proposition of law
rendered in plethora of Judgements of the
Apex Court and, therefore, the same is not
sustainable.

15. On the other hand, the learned
counsel appearing for the State has opposed
the contention aforesaid and submits that
the complaint is in very detailed and after
giving opportunity to the applicant, when
the authorities came to the conclusion that
there is a case, the complaint was lodged.
He added that the complaint is appended
with the material evidences, which reveals
that the present applicant has committed an
offence under Section 17B/17A(e)/18A/27
of 'the Act 1940', therefore the learned trial
Court has rightly passed the order, whereby
the present applicant has been summoned
and thus no interference is warranted.

16. Considering the submissions of
the learned counsels for the parties and
after perusal of the material placed on
record, it transpires that the present
applicant is an Ayurvedic Doctor, having
degree of BAMS from Lucknow University
and is a registered medical practitioner,
which is an admitted fact between the
parties. After taking sample of medicine,
the same was sent to Lab and was
examined and once it is said to be found
against the norms, the notice was issued
and after receiving the reply and reaching
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
to the conclusion, the complaint was filed
by departmental authorities but it seems
that for taking decision, the authorities have
taken four years that is an inordinate delay.
Further it seems that for justifying the
delay, again a notice was served upon the
applicant, though, prima facie, the same is
insufficient to fill up or explain the
inordinate delay.

17. This court has noticed the fact that
there is an exemption clause in Rule 123 of
'the Rules 1945', which clearly says that the
drugs which are specified in the Schedule 'K'
shall be exempted from the provision of
Chapter IV of the Act. So far as the sample
which was taken, admittedly, comes under
the Schedule 'K' of the Rules, 1945' but the
authorities has ignored the provisions of
exemption clause.

18. I have also considered the
contentions of the learned counsel for the
applicant that no reason has been recorded
while passing the order dated 19.07.2022,
whereby the present applicant has been
summoned. From bare perusal of the
impugned order, it transpires that the reasons
has not been recorded and it has only been
mentioned that the Court has looked into the
complaint as well as the record available
before the same.

19. Time and again, the Hon'ble Apex
Court has heldthat in the cases arising out of
complaint case, the trial court while issuing
summons, shall record detailed reasons,
which should apparently show the application
of mind and this duty of Magistrate cannot be
marginalized.

20. The plea has also been taken that
provision of Section 33M of the Act, 1940
clearly provides that any prosecution under
the Chapter IV of the Act, can be instituted
except by an Inspector with a previous
sanction of the authority specified under Sub
Section (4) of Section 33 (g) and while
examining aforesaid, this Court finds that the
compliance of the abovesaid provisions has
not been done by the authorities and the
mandate of due procedure has been violated.

21. In view of the abovesaid
submissions and discussions, there is merit in
this case, consequently, the order dated
19.07.2022 passed in Complaint Case No.
1437 of 2022, is hereby set-aside.

22. Matter is remitted back to the trial
Court concerned to pass a fresh order within
a period of 60 days from the date of this
order, considering the observations made
herein above.

23. The instant application is hereby
allowed.
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(2023) 8 ILRA 1200
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application U/S 482. No. 8378 of 2023

Shitala Baksh Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Narendra Kumar Singh

Counsel for the Opposite Parties:
G.A., Sri Syed Ahmed Faizan, Ms. Fatima
Anjum

Criminal Law - Negotiable Instruments
Act, 1881 - Section 138 - Against dismissal
of complaint by Magistrate - Applicant