Sitaram Chourasia vs State Of Bihar

These applications have been heard together since they involve a common question of law.

Mr. P.N. Shahi, learned Senior Counsel has led the submissions.

The parties are in agreement that all these applications are squarely covered by a Special Bench Judgment of this Court in Bablu @ Rajesh Kumar and Others v. The State of Bihar and Others since reported in (2021) 3 PLJR 220.

The operative part of the aforesaid judgment in paragraphs-89 and 90 reads as under:-

“89. In conclusion, the reference is being answered thus:-

(i) Issue No. II :

(a) The police has no power to institute and investigate the offences under Chapter III, Chapter IV and Chapter IV-A of the Drugs and Cosmetics Act, 1940.

(b) The offences under Chapter IV-A are not to be tried by the court of Sessions and except the offences under Clauses (a) and (b) of Section 13 of the Drugs and Cosmetics Act, 1940, all other offences under Chapter III would be triable by a court of Judicial Magistrate.

(c) When imported drugs and cosmetics are distributed, or sold, or stocked, or exhibited, or offered for sale, they would be covered by Chapter IV of the Drugs and Cosmetics Act, 1940.

(ii) Issue No. III :

The judgments of this Court in Cr.W.J.C. No. 719 of 1998, Cr.Misc. No. 808 of 1998 and Cr.Misc. No. 50246 of 2006 are affirmed as good law.

(iii) Issue No. IV :

The said issue is now exhaustively covered by the judgment of the Hon’ble Supreme Court in the case of Ashok Kumar Sharma (Supra), which lays down that the prosecution under Section 32 of the Drugs and Cosmetics Act, 1940 shall be instituted only by way of filing of complaint and that police cannot register and investigate offences under Chapter IV of the Drugs and Cosmetics Act, 1940.

After answering the reference, I deem it proper to issue following directions keeping in view the ramification of the matter :-

(i) In the FIRs instituted in respect of the offences under Chapter III and IV of the Drugs and Cosmetics Act, 1940 prior to the judgment of the Hon’ble Supreme Court in the case of Ashok Kumar Sharma (Supra) and where investigation has been completed and cognizance has been taken by the court and the cases have travelled beyond the stage of cognizance shall be saved and the prosecution shall continue as per the provisions prescribed under the Cr.P.C.

(ii) The cases in which the FIRs were instituted in respect of the offences under Chapter III and IV of the Drugs and Cosmetics Act, 1940 prior to the judgment of the Hon’ble Supreme Court in the case of Ashok Kumar Sharma (Supra) and where investigations have not been completed, all previous acts of the police officer including the investigation and the material collected in course of investigation and the pending proceedings shall be saved on account of de facto doctrine and only the prosecution of the cases shall be handed over to the concerned Drug Inspector, who shall prosecute through Public Prosecutor or the Special Public Prosecutor, as the case may be.

(iii) In such cases any action taken by the police, except handing over the case to Drug Inspector, after the judgment of the Hon’ble Supreme Court in the case of Ashok Kumar Sharma (Supra) shall be a nullity in the eye of law.

(iv) During argument, we have been told that there are many cases where FIRs have been registered in regard to cognizable offences falling under the Drugs and Cosmetics Act, 1940 and the pending investigations prior to the judgment of the Hon’ble Supreme Court in the case of Ashok Kumar Sharma (Supra) have not been handed over to Drug Inspector till date. In all such cases, it would be the responsibility of the Director General of Police of the State of Bihar to ensure that pursuant to the directions of the Hon’ble Supreme Court in the case of Ashok Kumar Sharma (Supra), those cases should be handed over by the police to the concerned Drug Inspectors as early as possible, but no later than one month from the date of receipt of a copy of this order.

(v) In all such FIRs registered for the offences punishable under the Drugs and Cosmetics Act, 1940 in which the samples of drugs and cosmetics had been sent for test or analysis and the samples were analyzed or tested and were found misbranded, spurious or adulterated by the Government Analyst and the report has been received during investigation, the concerned Drug Inspector shall be individually responsible to file prosecution report before the court and to take action on the same in accordance with law as early as possible and preferably within a further period of one month from the date of receipt of the FIR and other materials collected during investigation from the police.

(vi) The Drug Controller, State of Bihar shall also be individually responsible to ensure compliance of the directions made in para (v) by this Court.”

With consent of the parties, these applications are disposed of in terms of the directions given in paragraphs-89 and 90 of the Special Bench Judgment of this Court in Bablu @ Rajesh Kumar and Others (supra).

Interim order, if any, in these applications, stands vacated.