Mayank Kumar And Another vs State Of Uttarakhand And Others

Ravindra Maithani, J

The challenge in this petition is made to the order dated 04.09.2021, passed in Sessions Trial No.168 of 2020, State vs. Dinesh and others, by the court of 2nd Additional Sessions Judge, Roorkee, District Haridwar. By the impugned order, an application filed under Section 451 of the Code of Criminal Procedure, 1971 (for short, “the Code”), filed by the petitioners for unlocking or removal of seal of the premises of firm/company Kancare Pharmaceuticals Private Limited, located at Khasra No.396, Nanheda, Anantpur, Bhagwanpur, District Haridwar has been rejected.

Heard learned counsel for the parties and perused the record.

Facts necessary to appreciate the controversy briefly stated are as follows. On 04.12.2021, upon certain information having been received, the respondent no.3, the Drug Inspector along with the police personnel raided certain premises. According to the case, certain spurious medicines and illegal manufacturing without any license was detected. In this process, a premises was sealed. Based on this action, an FIR No.665 of 2020 under Sections 419, 420, 120-B, 307 IPC and Sections 17, 17(a), 18A, 27 of the Drugs and Cosmetics Act, 1940 (for short, “the Act”) was lodged at Police Station Kotwali Roorkee, District Haridwar.

It is submitted that now, charge-sheet has been filed in the matter. The petitioners in his capacity as one of the partners of the M/S Kancare Pharmaceutical Private Limited moved an application under Section 451 of the Code for unlocking and de-sealing of the premises. It has been rejected.

Learned Senior Counsel appearing for the petitioners would submit that under Section 451 of the Code, immovable property cannot be taken into possession by the police; there is no provision, which authorizes the authority to act in a manner, in which they acted in the instant case.

On behalf of the State, categorically on multiple occasions, it was asked, as to what under what provision of law the action was taken? In fact, on 05.03.2022, this Court formulated two points as follows with the request to the State counsel to file a short counter affidavit:-

(i) Under what provision of law, the premises was sealed or locked? and;

(ii) Which medicines, drugs etc. were found from the premises in question and whether any reports with regard to their genuineness or spurious have been obtained?

The State did not file response to it. On one occasion, learned State counsel informed the Court that the Investigating Officer had instructed that the premises was sealed under the instructions of Drug Inspector but, according to the learned State counsel the Drug Inspector informed that the premises was so sealed under the instructions of the Joint Magistrate. This has been noted in Court’s order dated 30.03.2022. The Joint Magistrate also joined the proceedings of this Court on 05.04.2022. She would submit that due to extraordinary Covid-19 pandemic situation such order was passed.

Learned State counsel has argued that, in fact, drug was being manufactured with the brand name, which was not registered in the State, it was so manufactured without any authority or license. Therefore, according to him, the premises may be unsealed but, the machinery, which were used for manufacturing the medicines are required for the purposes of trial.

When this argument was being advanced, learned Senior Counsel for the petitioners would submit that at the most, the machine, which was manufacturing tablets may be taken into custody by the police subject to its release by the Court but, entire premises and all the machines cannot be taken into custody.

Under further instructions, learned State counsel would submit that the machines connected with the manufacturing of tablets as well as packaging pertain to the case. Except it, the premises may be unsealed, unlocked and given into the possession of the petitioners.

Learned Senior Counsel for the petitioners would submit that he has no objection if only machines relating to manufacture of tablets and packaging are taken into custody by the police subject to the liberty to the petitioners to approach the Court for its release under the appropriate provisions of law.

In fact, immovable property cannot be taken into custody by the police under Section 102 of the Code as held by the Hon’ble Supreme Court in the case of Nevada Properties Private Limited through its Directors vs. State of Maharashtra and another, (2019)20 SCC 119.

In the case of Nevada (supra), while answering the reference, the Hon’ble Supreme Court observed that, “any property” in Section 102 of the Code will only cover movable property and not immovable property.

Learned State counsel in this Court has stated that the medicines are tablets only therefore, the petition may be allowed with certain observation for de-sealing and unlocking the premises with liberty to the police to take into custody the machines manufacturing tablets and packaging.

The petition is allowed. The premises-in-question shall be de-sealed and unlocked but, the police may take into custody the tablet manufacturing machine and packaging machine. This action should be completed by the police within a period of three weeks from today.

If police opts to take into custody the machines, as indicated hereinabove, the petitioners shall be at liberty to move an application for its release. If any such application is presented, it shall be disposed of, in accordance with law.