'Drugs Inspector, Not Police, Holds Power To Search And Seize As Per Sec 22 Drugs And Cosmetics Act': Punjab & Haryana High Court

The Punjab & Haryana High Court has made it clear that the Police have no authority to search or seize the alleged illegal product in contravention of the Drugs and Cosmetics Act, the power to seize would lie with the Inspector appointed under the Act.

For context, as per Section 22 of The Drugs and Cosmetics Act, 1940, the power to conduct any search and seizure is vested solely with the Drug Inspector.

In the case in hand, the petitioner was booked under the Drugs and Cosmetics Act for allegedly offering to sell Remdesivir injections at a price exceeding the regulated rate, without being in possession of any requisite licence.

After raiding the premises the police seized alleged injections and an FIR was registered against the petitioner, a director of the company who started to manufacture the injections, along with the other co-accused.

Justice Manjari Nehru Kaul while quashing the FIR and referring to Section 22 of the Drugs and Cosmetics Act said,  "it is evident that the police had no authority to inspect the premises and confiscate the injections as had been done in the present case. The Drugs and Cosmetics Act, being a special enactment supersedes the Cr.P.C. and Essential Commodities Act, thereby precluding the police from taking refuge under the Cr.P.C. or Essential Commodities Act to usurp the authority of a Drugs Inspector."

The Court further added that any search and seizure not conducted in accordance with law, as seen in the instant case, would hold no weight during trial for convicting the accused based on such evidence. Therefore, owing to the defective recovery process, there would arise no possibility of imposition of penalty under Section 7 of the Essential Commodities Act.

These observations were made during the hearing of the plea by Gaurav Chawla, Director of M/s Health Biotech Limited, seeking to quash the FIR lodged under Sections 420 and 120-B of the IPC, Section 7 of the Essential Commodities Act, and Section 27 of The Drugs and Cosmetics Act at Chandigarh.

The senior counsel for the petitioner argued that essential ingredients for cheating under Section 420 of the IPC are not made out as there was no allegation levelled in the FIR against the petitioner of having delivered any property or having practised deception upon any person.

It was further submitted that the alleged seizure of injections from the factory of the petitioner's company could not be done by the Police because the power to conduct any search and seizure was vested solely with the Drug Inspector.

Considering the submissions, the Court opined that for the offence under Section 420 of the IPC which addresses cheating by inducing someone, through false claims, to deliver property, alter valuable securities, or perform actions they would not have done otherwise. "The key to proving an offence under Section 420 of the IPC requires not only deliberate false representation but also the knowledge of the accused of its falsehood and the intent to deceive. Dishonest intent is pivotal, and transactions must involve fraudulent intentions, mere breach of agreement would not qualify as a criminal offence under Section 420 of the IPC."

Perusing the statements recorded under Section 161 CrPC the Court found that the petitioner along with other co-accused allegedly offered to sell injections at prices exceeding the regulated rate, without being in possession of any requisite licence or permit and thus, tried to cheat them, so that they could earn huge.

The Court noted that is not disputed by the counsel for the UT that there are no allegations against the petitioner of actually having sold the injections in the domestic market. Thus, the essential elements to attract the mischief of an offence under Section 420 of the IPC are evidently absent in the case in hand.

It further considered the question of whether the police possessed the power to seize the injections and conduct an investigation with respect to offences under Chapter IV of The Drugs and Cosmetics Act read with Section 7 of the Essential Commodities Act.

Perusing Section 22 "Powers of Inspectors"of the Drugs and Cosmetics Act, the Court noted, it is evident that the police had no authority to inspect the premises and confiscate the injections as had been done in the present case.

The Drugs and Cosmetics Act, being a special enactment supersedes the Cr.P.C. and Essential Commodities Act, thereby precluding the police from taking refuge under the Cr.P.C. or Essential Commodities Act to usurp the authority of a Drugs Inspector, it added.

Reliance was also placed upon Union of India v. Ashok Kumar Sharma and others, wherein it was held that, "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, 1973 in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the CrPC."

Consequently, the Court opined that, hence, "it is abundantly clear that the police had no power to conduct investigation qua offences under Section 27 of The Drugs and Cosmetics Act, and even the FIR could not have been registered under the said provisions."

Case Title: Gaurav Chawla v. State of U.T. Chandigarh

Vinod Ghai, Senior Advocate with  Arnav Ghai and  Amritpal Singh Maan, Advocates for the petitioner.

Amit Kumar Goyal, Additional Public Prosecutor, U.T. Chandigarh.

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