# Keshav Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 1714
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-07
- **Case number:** Criminal Misc. Writ Petition No. 16248 of 2023
- **Bench:** Vivek Kumar Birla, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/keshav-kumar-ors-v-state-of-u-p-ors-51597
- **Pages:** 11

## Headnote

Indian Penal Code,1860. - Sections 420,
467, 468, 471, 504 & 506 - Drugs and
Cosmetics Act, 1940 - Sections 16, 17,
17A, 17B, 32 & 32(3) - quashing of FIR -
manufacture and sale of injections - allegations
of substandard drugs - allegations of creation of
forged and fabricated laboratory test reports -
false impression of standard quality - FIR
lodged by private person - offences under IPC
distinct from offences under Chapter IV of the
Act - Section 32 bars prosecution under the Act
but not under any other law - no override effect
of the Act - investigation under Cr.P.C. for IPC
offences not barred - Section 32(3) permits
prosecution under other law - registration of
FIR
mandatory
if
information
discloses
cognizable offence - investigation at nascent
stage
-
allegations
prima
facie
disclose
cognizable offence - police competent to
investigate forgery - case not covered by Ashok
Kumar Sharma - no ground for quashing FIR -
Bhajan Lal principles not attracted .

Writ Petition dismissed.(E-9)
Cases Cited:

## Text

1714 INDIAN LAW REPORTS ALLAHABAD SERIES

45. With the aforesaid directions, the
instant petition is allowed.
----------
(2024) 3 ILRA 1714
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Misc. Writ Petition No. 16248 of 2023

Keshav Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Seema Singh Jadaun, Sri Jitendra Pal Singh
Jadaun, Sri Nitin Bhasin

Counsel for the Respondents:
G.A., Sri Ashok Kumar Singh Bais, Sri Vineet
Singh Parmar

Indian Penal Code,1860. - Sections 420,
467, 468, 471, 504 & 506 - Drugs and
Cosmetics Act, 1940 - Sections 16, 17,
17A, 17B, 32 & 32(3) - quashing of FIR -
manufacture and sale of injections - allegations
of substandard drugs - allegations of creation of
forged and fabricated laboratory test reports -
false impression of standard quality - FIR
lodged by private person - offences under IPC
distinct from offences under Chapter IV of the
Act - Section 32 bars prosecution under the Act
but not under any other law - no override effect
of the Act - investigation under Cr.P.C. for IPC
offences not barred - Section 32(3) permits
prosecution under other law - registration of
FIR
mandatory
if
information
discloses
cognizable offence - investigation at nascent
stage
-
allegations
prima
facie
disclose
cognizable offence - police competent to
investigate forgery - case not covered by Ashok
Kumar Sharma - no ground for quashing FIR -
Bhajan Lal principles not attracted .

Writ Petition dismissed.(E-9)
Cases Cited:

1. Union of India v. Ashok Kumar Sharma and
others, (2021) 12 SCC 674.

2. Chandan Singh v. State of Haryana, (2004) 4
RCR (Crl) 724.

3. Rajeev Kumar v. State of Punjab, 1997 (4)
RCR 846.

4. Ashish Kumar v. State of Haryana, 2022 SCC
OnLine P&H 2847.

5. Lalan Kumar Singh v. State of Maharashtra,
2022 SCC OnLine SC 1383.

6. State of Karnataka v. Shreekantiah, (1981) 2
SCC 335.

7. State of Haryana v. Brij Lal Mittal, (1998) 5
SCC 343.

8. Ashok Kumar Tyari v. State of H.P., (2015) 1
Drugs Cases DC 185.

9. Pankaj Kumar v. State, 2008 SCC OnLine Del
1384.

10. Hoechst Pharmaceuticals v. C.V.S. Mani,
1982 SCC OnLine Del 200.

11. Chimanlal Jagjivandas Sheth v. State of
Maharashtra, AIR 1963 SC 665.

12. Indian Chemical and Pharmaceutical Works
v. State of Andhra Pradesh, AIR 1966 SC 713.

13. Abhishek Kukreti v. State of U.P., Criminal
Misc. Writ Petition No. 11966 of 2023.

14. Lalita Kumari v. State of U.P., (2014) 2 SCC
1.

15. State of Haryana v. Bhajan Lal, 1992 Supp
(1) SCC 335.

(Delivered by Hon'ble Vinod Diwakar, J.)

1. We have heard Shri Nitin Bhasin,
holding the brief of Shri Jitendra Pal Singh
Jadaun, learned counsel for the petitioners,
3 All. Keshav Kumar & Ors. Vs. State of U.P. & Ors.
1715
learned counsel for the informant, and Shri
G.P. Singh, learned AGA for the State
Respondents, and perused the record.

2. The present writ petition has been
preferred to quash the impugned First
Information Report dated 30.7.2023 as
Case Crime No.419 of 2023, under
Sections 420, 467, 468, 471, 504, 506 IPC,
registered
at
P.S.
Deoband,
District
Saharanpur, and for a direction to the
respondent
police not
to arrest the
petitioners till the pendency of the present
petition. For clarity, the relevant portion of
the prayer is underlined herein:

"(i) Issue a writ, order or
direction in nature of certiorari quashing
the impugned First Information Report
dated 30.07.2023 registered as Case Crime
No. 419 of 2023, under Sections 420, 467,
471, 504, 506 of IPC, P.S. Deoband,
District Saharanpur.

(ii) Issue a writ, order or
direction in the nature of mandamus
commanding and directing the respondents
to not to arrest the petitioners in pursuance
of
First
Information
Report
dated
30.07.2023 registered as Case Crime No.
419 of 2023, under Sections 420, 467, 471,
504, 506 of IPC, P.S. Deoband, District
Saharanpur."

3. The prosecution case is that the
respondent no.4/complainant is in the
health care business and had purchased
2000
injections
from
VADSP
Pharmaceuticals,
a
third-party
manufacturer company of the medicines.
The said injections are used to develop
antibiotics in children. After purchasing,
the said injections were delivered for sale
to
Rastogi
Hospital,
Railway
Road,
Deoband, besides certain other medicines.
After the use of the said injections, the
doctor complained about the quality of the
injections
and
stated
that
they
are
substandard and that if said injections are
used, they could be injurious to the health
of the children and pose a potential threat
to their lives. The complainant immediately
took back the entire stock from their
distributors and hospitals and informed the
accused-persons.
The
accusedpersons/petitioners
had
clandestinely
shown all parameters as correct in a
certificate
delivered
along
with
the
injections. The complainant also conducted
a lab test from the Scientific Testing Lab,
Roorki, Haridwar on 19.9.2022, which
suggests the sample of the injections failed.
The petitioners were again informed about
the substandard quality of the injections
through e-mail. The petitioners again sent a
DN Laboratory Report dated 26.9.2022,
showing the report as per standard. The test
report of the complainant did not match the
test report supplied by the petitioners to the
complainant.
The
complainant
has
fraudulently prepared and managed a test
report dated 26.9.2022 issued by DN
Laboratory to justify the quality of the
injections.
The
impugned
FIR
was
registered against the petitioners on the
preceding set of allegations.

4. Aggrieved by the registration of the
impugned FIR bearing Case Crime No.19
of 2023, under Sections 420, 467, 468, 471,
504, 506 IPC at P.S. Deoband, District
Saharanpur, the petitioners have preferred
the instant petition.

5. Learned counsel for the petitioners
submits that the petitioner nos.1 and 2 are
partners
in
M/s
Morgan
Healthcare,
situated at 1st Floor, Sam Building,
Ratwara
Sahib
Gurudwara
Road,
Mullanpur, Kharar, Sas Nagar, who were
granted license under the provisions of
1716 INDIAN LAW REPORTS ALLAHABAD SERIES
Drugs and Cosmetics Act, 1940 by the
State Drug Licensing Authority, Punjab,
whereas the petitioner no.3 is a partner in
M/s VADSP Pharmaceuticals, having its
office at Plot No.124 EPIP, Phase-1,
Jharmajri, Baddi, District Solan, Himachal
Pradesh, which has been granted a license
to manufacture drugs under the provisions
of the Act. The manufacturing company,
i.e., petitioner no.3 was manufacturing the
third-party drug "Meropenem Injection IP
(Merofy-125 Injection)" from its unit. In
the month of September, 2022, the
respondent/complainant
telephonically
requested to take back the drugs in question
and stated that the doctor did not prescribe
the drug/injection in an open market, being
injurious to the health of the children. As
per the petitioner's own test reports, the
injections were found to be of standard
quality,
and
accordingly,
the
DN
Laboratory issued a test report. Therefore,
registration of the impugned FIR is a
misuse of the process of law and also, in
the teeth of the ratio culled out in Union of
India v. Ashok Kumar Sharma and
other1.

5.1 With oblique motive, the
complainant malafidely filed an application
under Section 156(3) Cr.P.C. before ld.
A.C.J.M. Deoband, Saharanpur and secured
an order for registration of the impugned
FIR against the petitioners by concealing
material facts from the court. He further
contends that on perusal of the contents of
the FIR, no offence under IPC is made out,
and if at all any offence would attract then,
the Drug Inspector is a competent person to
initiate prosecutions against the petitioners;
as no FIR could be registered under the IPC
by the complainant, it is only the Drug
Inspector who is authorized under Section
32 of the Act to initiate prosecution, if any.
The Act specifically prohibits taking
cognizance except on the complaint made
by the Drug Inspector or other person
authorised
under
the
law,
and
to
substantiate its argument the petitioners has
relied upon Section 32 of the Act2. Section
32 of the said Act is reproduced below:

"32. Cognizance of offences-

[(1) No prosecution under this
Chapter shall be instituted except by-

(a) an Inspector; or

(b) any gazetted officer of the
Central Government or a State Government
authorised in writing in this behalf by the
Central Government or a State Government
or by a general or special order made in
this behalf by that Government; or

(c) the person aggrieved; or

(d)
a
recognised
consumer
association whether such person is a
member of that association or not.

(2) Save as otherwise provided in
this Act, no court inferior to that of a Court
of Session shall try an offence punishable
under this Chapter.]

(3) Nothing contained in this
Chapter shall be deemed to prevent any
person from being prosecuted under any
other law for any act or omission which
constitutes an offence against this Chapter."

5.2 The petitioner has placed
reliance upon Chandan Singh v. State of
Haryana3, Rajeev Kumar v. State of
Punjab4, Ashish Kumar v. State of
Haryana5. He further relied upon Lalan
Kumar Singh and another v. State of
Maharashtra6 to substantiate that merely
reproducing the ingredients of the penal
provision without a clear statement of facts
as to how and in what manner the Director
of the company was responsible for the
conduct of the business of the company
would not ipso facto make the Director
vicariously liable in a criminal case. He
further contends that a person in charge of
and responsible for the affairs of the
3 All. Keshav Kumar & Ors. Vs. State of U.P. & Ors.
1717
company for the day-to-day conduct of the
business of the company, must be a person
in overall control of the day-to-day
business of the company or the firm. If a
partner of a firm is not in such overall
control, he cannot be liable to convicted
merely because he had the right to
participate in the business of the firm under
the terms of the partnership deed7.

5.3 Simply because a person is
the Director of the company, he does not
vicariously become liable for the offence8.

5.4. While considering Section 34
of the Act, it was held that offences by the
company and non-compliance of the
provisions thereof if no whisper in the
entire
complaint
made
against
the
petitioners whether they were in charge of
and were responsible for the conduct of the
business at the time of the commission of
the offence and the mere fact that the
petitioner happens to be one of the partners
does not entitles the prosecution to
prosecute him9.

5.5. On the basis of the impugned
FIR, the Drug Inspector has also issued
notice; therefore, it would be a case of
double jeopardy. Thus, the prosecution is
liable to be quashed. The FIR under Section
420, 467, 468, 471, 504, 506 IPC is
defective else for the same offence the
remedy lies under Section 18 (A) (i) of the
Act.

6. Per contra, learned AGA submits
that there are serious allegations of
manufacturing spurious and substandard
drugs by the petitioners. The petitioners
have also created forged and managed test
reports to give an impression that the
injections are of standard quality as per the
standards reflected in the test report. He
further contends that the manufacturing of
substandard drugs allegedly to boost the
immunity of the children amounts to the
life and safety of the children, and no one
could
be
permitted
to
manufacture
substandard and spurious drugs. He further
contends that the investigation is at the
initial stage, the role of the petitioners is yet
to be ascertained, and the petitioners are
not cooperating with the Investigating
Officer. The Investigating Officer required
cooperation from the petitioners to extract
the truth of the allegation. He further
contends that there are serious allegations
of manufacturing substandard, spurious
drugs and creating forged test reports to
give an impression of valid and standard
quality drugs.

7. Reverting back to the petitioners'
counsel's argument, who has heavily relied
upon Ashok Kumar Sharma case (supra),
in which following issues were involved:

(i) what is interplay between the
provisions of the Code of Criminal
Procedure and the Drugs and Cosmetics
Act, 1940?

(ii) whether in respect of offences
falling under Chapter IV of the Drugs and
Cosmetics Act, 1940, an FIR can be
registered under Section 154 of the Cr.P.C.
and the case investigated or whether
Section 32 of the Drugs and Cosmetics Act,
1940
supplants
the
procedure
for
investigation of offences under Cr.P.C. and
taking of cognizance of an offence under
Section 190 Cr.P.C.?

(iii) whether the Drug Inspector
has power or authority to arrest a person in
connection with an offence under Chapter
IV of the Drugs and Cosmetics Act, 1940?

8. Chapter IV of the Act2 deals with
the manufacture, sale and distribution of
drugs and cosmetics. Section 16 of the Act
governs the expression (standard quality),
whereas Sections 17, 17A and 17B govern
1718 INDIAN LAW REPORTS ALLAHABAD SERIES
misbranded,
adulterated,
and
spurious
drugs. The definition for the sake of clarity,
the relevant sections are reproduced as
under:

"16. Standards of quality. -

[(1) For the purposes of this
Chapter, the expression "standard quality"
means-

(a) in relation to a drug, that the
drug complies with the standard set out in
[the Second Schedule], and

(b) in relation to a cosmetic, that
the cosmetic complies with such stand ard
as may be prescribed.]

(2) The [Central Government],
after consultation with the Board and after
giving by notification in the Official
Gazette not less than three months ' notice
of its intention so to do, may by a like
notification add to or otherwise amend [the
Second Schedule] for the purposes of this
Chapter, and thereupon 5[the Second
Schedule] shall be deemed to be amended
accordingly.

[17. Misbranded drugs.-For the
purposes of this Chapter, a drug shall be
deemed to be misbranded,-

(a) if it is so coloured, coated,
powdered or polished that damage is
concealed or if it is made to appear of
better or greater therapeutic value than it
really is; or

(b) if it is not labelled in the
prescribed manner; or

(c) if its label or container or
anything accompanying the drug bears any
statement, design or device which makes
any false claim for the drug or which is
false or misleading in any particular.

17A. Adulterated drugs- For the
purposes of this Chapter, a drug shall be
deemed to be adulterated-

(a) if it consists in whole or in
part, of any filthy, putrid or decomposed
substance; or

(b) if it has been prepared,
packed
or
stored
under
insanitary
conditions whereby it may have been
contaminated with filth or whereby it may
have been rendered injurious to health; or

(c) if its container is composed, in
whole or in part, of any poisonous or
deleterious substance which may render the
contents injurious to health; or

(d) if it bears or contains, for
purposes of colouring only, a colour other
than one which is prescribed; or

(e) if it contains any harmful or
toxic substance which may render it
injurious to health; or

(f) if any substance has been
mixed therewith so as to reduce its quality
or strength.

17B. Spurious drugs.-For the
purposes of this Chapter, a drug shall be
deemed to be spurious,-

(a) if it is manufactured under a
name which belongs to another drug; or

(b) if it is an imitation of, or is a
substitute for, another drug or resembles
another drug in a manner likely to deceive
or bears upon it or upon its label or
container the name of another drug unless
it is plainly and conspicuously marked so
as to reveal its true character and its lack
of identity with such other drug; or

(c) if the label or container bears
the name of an individual or company
purporting to be the manufacturer of the
drug, which individual or company is
fictitious or does not exist; or

(d) if it has been substituted
wholly or in part by another drug or
substance; or
3 All. Keshav Kumar & Ors. Vs. State of U.P. & Ors.
1719

(e) if it purports to be the product
of a manufacturer of whom it is not truly a
product."

9. Section 32 of the Act2 deals with
conditions under which cognizance of the
offences could be taken with respect to the
offences committed within the purview of
the Act, which says no prosecution under
the Act shall be instituted except by- (a) an
Inspector, or (b) any gazetted officer of the
Central Government or a State Government
authorised in writing on this behalf by the
Central Government or a State Government
or by a general or speaking order made on
this behalf by that Government or (c) the
person aggrieved or (d) a recognised
consumer association, whether such a
person is a member of that association or
not.

10. Section 32(3) of the Act2 further
clarifies that nothing contained in this
chapter shall be deemed to prevent any
person from being prosecuted under any
other law for any act or omission which
constitutes an offence under this chapter.

11. Ashok Kumar Sharma (supra)
case originated from an online complaint
dated 22.2.2018 made by one Naushad
Khan in which the Commissioner (Food
Protection and Drug) initiated an inquiry
and the Drug Inspector Mau, U.P. along
with two others conducted an inspection at
Sharda Narayan Clinic and Pharmacy and
the person, who was present in the clinic,
was directed to show papers in respect of
medicines stored in the shop. The person
stated that he did not have any license,
though he was the owner of the medical
store, and that he had stored the medicines
without proper license. He committed an
offence under Sections 18 and 27 of the
Act2. On the basis of the recovery made, an
FIR was lodged under Section 18 (a)(i) and
Section 27 of the Act2 on the complaint of
the Drug Inspector. Aggrieved by the same,
the accused preferred a petition for
quashing the FIR before this Court, and this
Court allowed the writ petition and quashed
the FIR on the reasoning that Section 32 of
the
Act2
disabled
the
police
from
registering an FIR, as Section 32 of the
Act2 provides for the mechanism for
prosecuting offences under the said Act.
The said finding was challenged before the
Supreme Court in Ashok Kumar Sharma
case (supra), and the Supreme Court culled
out the directions, which are extracted
below:

"THE
CONCLUSIONS/DIRECTIONS

170. Thus, we may cull out our
conclusions/directions as follows:

170.1. In regard to cognizable
offences under Chapter IV of the Act, in
view of Section 32 of the Act and also the
scheme of the CrPC, the Police Officer
cannot prosecute offenders in regard to
such offences. Only the persons mentioned
in Section 32 are entitled to do the same.

170.2. There is no bar to the
Police Officer, however, to investigate and
prosecute the person where he has
committed an offence, as stated under
Section 32(3) of the Act, i.e., if he has
committed any cognizable offence under
any other law.

170.3 Having regard to the
scheme of the CrPC and also the mandate
of Section 32 of the Act and on a
conspectus of powers which are available
with the Drugs Inspector under the Act and
also his duties, a Police Officer cannot
register a FIR under Section 154 of the
CrPC, in regard to cognizable offences
1720 INDIAN LAW REPORTS ALLAHABAD SERIES
under Chapter IV of the Act and he cannot
investigate
such
offences
under
the
provisions of the CrPC.

170.4. Having regard to the
provisions of Section 22(1)(d) of the Act,
we hold that an arrest can be made by the
Drugs Inspector in regard to cognizable
offences falling under Chapter IV of the Act
without any warrant and otherwise treating
it as a cognizable offence. He is, however,
bound by the law as laid down in D.K.
Basu (supra) and to follow the provisions
of CrPC.

170.5. It would appear that on the
understanding that the Police Officer can
register a FIR, there are many cases where
FIRs have been registered in regard to
cognizable offences falling under Chapter
IV of the Act. We find substance in the stand
taken by learned Amicus Curiae and direct
that they should be made over to the Drugs
Inspectors, if not already made over, and it
is for the Drugs Inspector to take action on
the same in accordance with the law. We
must record that we are resorting to our
power under Article 142 of the Constitution
of India in this regard.

170.6. Further, we would be
inclined to believe that in a number of
cases on the understanding of the law
relating to the power of arrest as, in fact,
evidenced by the facts of the present case,
police officers would have made arrests in
regard to offences under Chapter IV of the
Act. Therefore, in regard to the power of
arrest, we make it clear that our decision
that Police Officers do not have power to
arrest in respect of cognizable offences
under Chapter IV of the Act, will operate
with effect from the date of this Judgment.

170.7. We further direct that the
Drugs Inspectors, who carry out the arrest,
must not only report the arrests, as
provided in Section 58 of the CrPC, but
also immediately report the arrests to their
superior Officers."

12. Nonetheless, the consumer does
not know about the manufacturer or quality
of the products. Many times, they are
unaware
of
expired,
degraded
or
substandard products, which ultimately
results in treatment failure and, with
antibiotics,
leads
to
anti-bacterial
resistance. This problem is very serious and
rapidly
growing,
causing
serious
repercussions on the health of the citizens.
The ingredients of Sections 16, 17, 17A,
and 17B of the Act2 mandate poor quality
drugs
comprising
misbranded
drugs,
spurious drugs and adulterated drugs,
respectively, and there is no provision in
the Act2 to deal with the offences related to
the creation of forged documents and
dishonestly uses as genuine.

13. The opening line of section 32 of
the Act2 states, "No prosecution under this
Chapter shall be instituted by -" this means
the
offences
under The
Drugs
and
Cosmetics Act, 1940, and not under offence
under the Indian Penal Code; therefore, the
police can investigate the offences forming
part of Penal Code. Sub-Section (3) of
Section 32 further clarifies the position in
unequivocal terms that nothing contained in
Chapter IV of the Act2 shall be deemed to
prevent any person from being prosecuted
under any other law for any act or omission
that constitutes an offence against Chapter
IV of the Act2.

14. Section 2 of the Act2 states that
the provisions of this Act shall be in
addition to, and not in derogation of, any
other law for the time being in force.

At this juncture, it would be
relevant to reproduce section 2 & 32(3) of
3 All. Keshav Kumar & Ors. Vs. State of U.P. & Ors.
1721
the Drugs and Cosmetics Act, 1940, which
are extracted herein below:

"2. Application of other laws not
barred. -The provisions of this Act shall
be in addition to, and not in derogation of,
the Dangerous Drugs Act, 1930 (2 of
1930), and any other law for the time being
in force.

*****

32. Cognizance of offences-

1..................

2..................

(3) Nothing contained in this
Chapter shall be deemed to prevent any
person from being prosecuted under any
other law for any act or omission which
constitutes
an
offence
against
this
Chapter"

15. The conjoint reading of both the
provisions make it clear that the provisions
of the Act2 do not have over ride effect on
any other law in force. Its clear that the
investigation under Code of Criminal
Procedure for offences under IPC are not
barred under the Drugs and Cosmetics Act,
1940.

16. The Delhi High Court in Pankaj
Kumar v. State10, has held that the Code is
the parent statute which provides for
investigation, inquiry into, and trial of
cases and unless there is specific provision
in other statute to indicate a different
procedure to be followed, the provisions of
the Code cannot be displaced. The High
Court has relied upon various judgments
passed by the Supreme Court to come to
the aforesaid conclusion. The relevant
portion of para-18 of Pankaj Kumar's case
(supra) is extracted herein below:

"That apart, how could the FIR
be quashed if the investigating agency
should have been different? By lodging FIR
alone no investigation is conducted by the
police. It is the first step towards starting
investigation by the police. If High Court
was of the opinion that investigation has to
be conducted by the Bureau then also there
was no need to quash the FIR Any way we
take the view that as offences under the
Penal Code, 1860 are also involved,
efficacious investigation can be conducted
by entrusting it to the police investigating
agency. Inherent powers of the High Court
as recognised in Section 482 of the Code
are reserved to be used "to give effect to
any orders under the Code, or to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice." It
is quite unfortunate that learned single
Judge overlooked the reality that by
quashing the FIR in the case the High
Court did not achieve any one of the above
factors. On the contrary, the result of
quashing the FIR had rendered the
allegations of offences made against a
person to remain consigned in stupor
perennially. Hence, instead of achieving
ends of criminal justice, the impugned
order would achieve the reverse of it."
(Emphasis supplied)

17. The Delhi High Court in
HOECHST
PHARMACEUTICALS
v.
C.V.S. Mani11, has also held as under:

20. The Preamble of the Act, no
doubt, says that it is an Act to regulate the
import, manufacture, distribution and sale
of drugs and cosmetics but the real object
of this Act has been judicially examined on
numerous
occasions.
In
Chimanlal
Jagjivandas
Sheth
v.
State
of
Maharashtra12, while examining whether
substances like absorbent cotton wool,
roller bandages and gauze used for or in
treatment of diseases fall within the ambit
of the Act, it was observed that the
1722 INDIAN LAW REPORTS ALLAHABAD SERIES
Legislature
designedly
extended
the
definition of 'drug' so as to take in
substances which are necessary aids for
treating surgical or other cases. "The main
object of the Act is to prevent sub-standards
in drugs, presumably for maintaining high
standards of medical treatment. That would
certainly be defeated if the necessary
concomitants of medical or surgical
treatment were allowed to be diluted: the
very same evil which the Act intends to
eradicate would continue to subsist."

21. Again, in Indian Chemical
and Pharmaceutical Works, Hyderabad v.
The State of Andhra Pradesh13, a
Constitution Bench of Supreme Court held,
"The Drugs Act, 1940, which mainly
concerned with standard and quality of
drugs manufactured in this country and,
therefore, controls the manufacture, sale,
and distribution of drugs has nothing to do
with duties of excise and with their
imposition on narcotics and narcotic
drugs."

22.
From
the
above
two
observations of Supreme Court it becomes
obvious as to what is the real object of the
Act and what is the legislative scheme and
policy of this enactment. Indeed, the Act as
Section 2 lays down, is in addition to and
not in derogation of any other law and the
real purpose of the enactment is to ensure
quality
and
standards
of
drugs
manufactured, imported, distributed and
sold in the country. If that be correct, as
indeed it must be held to be, we have to
read Section 12 and Section 33, giving the
rule making power in the above context and
of the provisions of Chapter III and
Chapter IV of the Act. We have also to see
that no rule is made under the Act which is
violative of any other law or impinges upon
any other right recognised or conferred by
any other law. If a rule impinges upon any
other law or any other right, it must be held
to be outside the rule making power of the
Central Government. Section 2 on the one
hand and Sections 12 and 33 of the Act on
the other have all to be read together, being
part of the same enactment and part of the
same legislative scheme.

18. The coordinate bench in the case
of Abhishek Kukreti and others v. State
of U.P. and others14 has rejected the plea
to quash the FIR stemming from Case
Crime No.85 of 2023, involving sections
379, 411 IPC along with section 4/21 of the
Mines and Minerals (Development and
Regulation) Act, 1957, registered at Police
Station Nagina Dehat, District Bijnor. The
key issue addressed was whether section 22
of the Mines and Minerals (Development
and Regulation) Act, 1957 mandates FIR
registration solely on the complaint of an
authorized person or a private individual
can also lodge an FIR when IPC offences
are involved. The coordinate bench of this
court clarified that there is no legal
impediment under section 22 of the
MMDR Act for a private individual to file
an FIR for IPC offences related to
transactions under the MMDR Act. It
emphasized that the offences under both the
Act's have distinct and different procedural
investigative mechanisms.

19. We have very scrupulously gone
through the material placed before us and
are not persuaded to hold that the
petitioner's case is covered by the Ashok
Kumar Sharma case (supra), and hence,
the decision cited on this behalf can not be
availed of. In Ashok Kumar's case, the FIR
was registered on the complaint of the Drug
Inspector with the police station for the
offences mentioned in Chapter IV of the
Act2; therefore, the court has held that the
same is in the teeth section 32 of the Act2,
but in the instance case, the complaint had
3 All. Keshav Kumar & Ors. Vs. State of U.P. & Ors.
1723
been registered by a private person on the
complaint of a consumer for creation of
forged and fabricated lab test report to
prove drugs in the question of standard
quality. In essence, the gist of the allegation
is that the petitioner has procured a false
and fabricated lab report to make the
complainant believe that the drugs are of
standard quality.

20. In our view, on a reading of the
impugned FIR, where there are allegations
of the creation of fake test reports to give
an impression of drug being of standard
quality, as it has been pointed out earlier,
the entire matter is only at nascent stage,
and the investigation is not proceeded with
except the registration of the impugned
FIR. The evidence has to be gathered after
a thorough investigation and shall be
placed before the Court on the basis of
which alone the court can come to the
conclusion one way or the other on the plea
of right of the complainant to register the
FIR. If the allegations are bereft of the truth
and made with ulterior motives, we are sure
the investigation will reflect so in the police
report. At this stage, when there are only
allegations
of
procuring
false
and
fabricated test reports and investigation is
at nascent stage, this Court cannot
anticipate the result of the investigation and
render a finding on the legality and
correctness
of
the
impugned
FIR.
Therefore, we are unable to see any force in
the contentions raised by the petitioner's
counsel based on the ratio culled out from
Ashok Kumar Sharma's case (supra).
Needless to say, the question of malafide
exercise of power will assume significance
only if an authority acts for an unauthorized
purpose. We are of the considered opinion
that the principal purpose of the registration
of the impugned FIR and the intended
follow up action are only to investigate the
allegations and present a case before the
court. If sufficient evidence in support of
those allegations is collected, and in case if
no such evidence is collected, the police
may file the police report, accordingly.

21. More precisely, in the instant case,
the prosecution case is that the accused first
delivered the substandard injections and,
thereafter, to give an impression of standard
quality, provided a fake lab report issued
from DN Laboratory, therefore, there are
allegations of the creation of forged
laboratory reports. Albeit, on giving a bird's
eye view of the ingredients of Sections 16,
17, 17A, and 17B of the Act2, it would
safely be concluded that these sections deal
with the definition of standard quality,
misbranded,
adulterated
and
spurious
drugs, not with the creation of forged
documents
and
using
as
genuine.
Therefore, the element of forgery could
only be investigated by the police under the
provisions of Indian Penal Code and not
under the Chapter IV of the Drugs and
Cosmetics Act, 1940. Moreover, police
must record every information related to
the commission of cognizable offence in
the register kept at police station; it ensures
that the process is initiated promptly upon
receipt
of
information
regarding
the
commission of cognizable offence. It only
brings the alleged offence to the notice of
the police and sets in motion the machinery
for the investigation of the case. The
registration of an FIR is mandatory under
Section 154 of Cr.P.C. if the information
discloses a cognizable offence15.

22. In view of the fact that
substandard drugs encounter a major
stringent issue for the health system and
cannot be ignored. The investigation is at
the initial stage, and there are specific
allegations of the creation of forged test lab
1724 INDIAN LAW REPORTS ALLAHABAD SERIES
reports to claim substandard drugs of
standard quality; therefore, on perusal of
the contents of the impugned FIR, the
ingredients of commission of cognizable
offence are prima- facie made out.

23. The allegations made in the
impugned FIR, in our considered opinion,
do clearly constitute a cognizable offence
justifying the registration of a case and the
investigation thereon, and this does not fall
under any of the categories of cases
formulated by the Supreme Court in State
of Haryana v. Bhajan Lal16, calling for the
exercise of extraordinary or inherent
powers of the High Court to quash the
impugned FIR. Otherwise also, it is not the
case of the petitioners that even if the
allegations made in the FIR/complaint, is
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. The petitioners have also not
pleaded any express bar engrafted in any
provisions of the Code or any other law,
including the Drugs and Cosmetics Act, to
the institutions and continuance of the
proceedings.

24. Therefore, the petition is devoid
of merits, and hence dismissed, at this
stage.
----------
(2024) 3 ILRA 1724
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Misc. Writ Petition No. 20280 of 2013

Amit Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents
Counsel for the Petitioner:
Sri Ali Hasan, Sri Hariom Tiwari, Sri Ishtiyak
Ahmad

Counsel for the Respondents:
G.A., Sri Ashok Singh, Sri B.N. Singh

Criminal Law -Code of Criminal Procedure,
1973 - Sections 200, 202(2) & 204 -
Constitution of India,1950 - Article 227-
Petitioner challenged the summoning order
dated 24.05.2013 by Chief Judicial Magistrate,
Orai, under Sections 307, 504, 506 IPC, and its
affirmation by Sessions Judge, Jalaun, on
21.09.2013 in Criminal Revision No. 147/2013.
FIR (Case Crime No. 1005/2002) alleged
petitioner
and
two
others
attacked
the
complainant's brother, with one co-accused
firing, causing a firearm injury. Final report
deemed the incident doubtful, but the protest
petition, treated as a complaint, led to
summoning after examining the complainant
(Section 200) and three witnesses (Section
202). Court held that Section 202(2) mandates
examining all witnesses in sessions triable
cases, and failure to summon the doctor who
examined the injury was a violation, critical for
assessing
Section
307
IPC
applicability.
Magistrate's casual approach lacked "prima facie
satisfaction" as per Fiona Shrikhande Vs St. of
Maharashtra, (2013) 14 SCC 44, and Dr. Divya
Nand Yadav Vs St. of U.P., 2023 AHC 9188.
Impugned orders set aside; matter remanded
for fresh order in compliance with Section
202(2). Petition treated under Article 227 per
Radhey Shyam Vs Chhabi Nath, (2015) 5 SCC
423.

Petition Allowed.

Case Law Cited:

1. Radhey Shyam Vs Chhabi Nath, (2015) 5 SCC
423 (Para 4)

2. Fiona Shrikhande Vs St. of Maharashtra,
(2013) 14 SCC 44 (Para 9)

3. Dr. Divya Nand Yadav Vs St. of U.P., Criminal
Appeal No. 9188/2022, decided on 20.04.2023
(Paras
9,
10)