Sunday, 15 November 2015

Whether Human blood is drug?

 A bare reading of the definition would make it obvious that any thing, which can be used for treatment or mitigation of any disease or disorder in human beings or animals, has to be treated as drug. The aforesaid definition, which is inclusive one, does cover „blood‟. „Human blood‟ is a substance, which is intended to be used in the treatment of diseases in human beings. It, therefore, squarely falls within the broad language of the statutory definition of „drug‟.
From a perusal of the Rules, framed under the Drugs and Cosmetics Act, 1940 also, it would appear that a separate Chapter has been dedicated for the rules to be followed in the cases of collection of samples of blood and storage of such blood. Part X-B of the Rules deals with collection and storage of blood. This also buttresses the inclusion of „blood‟ in the category of „drug‟, as defined under the Act.
(AIR 1996 SC 929), it has been held that for the purposes of regulating the collection, storage and supply of blood, „blood‟ is treated as „drug‟.
Patna High Court - Orders
Sri Rabindra Singh vs The State Of Bihar on 13 August, 2014
Criminal Miscellaneous No. 36135 of 2011
 CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR 
Citation; 2015(3) crimes 628 Patna
The present application has been filed on behalf of the petitioner challenging the order dated 15.06.2010, passed by the learned Chief Judicial Magistrate, Rohtas (Sasaram) in Official Case No. 28 of 2010, whereby cognizance has been taken under Sections 18(C), 18(B), 18(a)(VI), 27(b)(II) and27(d) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as „the Act‟).
2. The Drug Inspector, Rohtas (Sasaram) lodged a complaint addressed to the Chief Judicial Magistrate, Sasaram alleging that a Blood Bank, being run in the house of one Shambhu Nath Tiwary, was raided. Fifteen blood bags were found in the said premises, which were filled with different groups of blood. The petitioner is said to have disclosed before the raiding team that he was the Proprietor of the Blood Bank and that he has the licence to run such Blood Bank. However, no such licence or permission could be produced by the petitioner. On being enquired about the place from where blood transfusion sets, blood bags, etc. were procured; no satisfactory answer could be given. Since the storage of blood in a Blood Bank is controlled by specific Rules in this regard, non-compliance of such Rules attracted penal action against the Proprietor of the aforesaid Blood Bank. A sample of blood was sealed and, thereafter, seized. A complaint thereafter was preferred before the learned Chief Judicial Magistrate, Sasaram.
3. The learned Chief Judicial Magistrate, Sasaram, vide order dated 15.06.2010 as noticed earlier, took cognizance under various Sections of the Act. The petitioner has sought to challenge the aforementioned order of cognizance primarily on two grounds. The first ground of challenge is that „blood‟ does not come within the definition of „Drug‟ under Section 3(b) of the Act. The other ground of challenge is that with the amendment in Section 32 of the Act (w.e.f. 10.08.2009), a Sessions Judge is empowered to take cognizance and not a Chief Judicial Magistrate.
4. In order to appreciate the contention of the petitioner, it is necessary to examine the definition of „Drugs‟ as provided under Section 3(b) of Act. Section 3(b) Act which reads thus:-
"3(b) "drug" includes -
(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;
(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;
(iii) all substances intended for use as components of a drug including empty gelatin capsules; and
(iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;"
5. A bare reading of the definition would make it obvious that any thing, which can be used for treatment or mitigation of any disease or disorder in human beings or animals, has to be treated as drug. The aforesaid definition, which is inclusive one, does cover „blood‟. „Human blood‟ is a substance, which is intended to be used in the treatment of diseases in human beings. It, therefore, squarely falls within the broad language of the statutory definition of „drug‟.
6. From a perusal of the Rules, framed under the Drugs and Cosmetics Act, 1940 also, it would appear that a separate Chapter has been dedicated for the rules to be followed in the cases of collection of samples of blood and storage of such blood. Part X-B of the Rules deals with collection and storage of blood. This also buttresses the inclusion of „blood‟ in the category of „drug‟, as defined under the Act.
(AIR 1996 SC 929), it has been held that for the purposes of regulating the collection, storage and supply of blood, „blood‟ is treated as „drug‟.
8. In order to appreciate the other ground of challenge, the Chief Judicial Magistrate, not being empowered to take cognizance of any offence under the Act, the jurisdiction or authority of the Special Court to take cognizance under the Act is required to be seen. After the amendment inSection 32 of the Act, it has been made clear that no Court, below the rank of the Sessions Judge, shall try offences punishable under the Act. Section 32 requires the Special Court to try the offences. The intendment of the legislature, therefore, does not appear to clothe the Special Judge, even though the Special Judge under the Act is the Sessions Judge, with the power of taking cognizance for offences punishable under the Act. The Special Court has been designated for the purposes of trying an offence which is punishable under the Act.
9. Seen in this background, it becomes very clear that the interdict stipulated in Section 193 of the Code of Criminal Procedure applies to the provisions of Section 32 of the Act. Section 193 of the Code of Criminal Procedure reads as under:-
"193. Cognizance of offences by Courts of Sessions.- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."
10. A bare reading of Section 193 Cr.P.C. makes it clear that a Court of Sessions can take cognizance only when the case is committed to it by a Magistrate.
11. The issue, being whether the Special Court which is a Court of Sessions can take cognizance or not, is no longer res integra. In Gangula Ashok & Anr. v. State of Andhra Pradesh (AIR 2000 SC 740), after taking note of Sections 6 and 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Apex Court held that the intendment of the legislature is to create a Special Court as a Court of Sessions, which will not be denuded of its character or power as a Court of Sessions. The Apex Court, after analyzing the ratio of A.R. Antulay v. R.S. Nayak & Anr. (AIR 1984 SC 718) and Directorate of Enforcement v. Deepak Mahajan & Anr. (AIR 1994 SC 1775) held that the Special Court, being a Court of Sessions, can only take cognizance when the case is committed to it and not otherwise.
12. This view, referred to above, was again approved by the Supreme Court in the case ofRattiram & Ors. v. State of M.P. through Inspector of Police (AIR 2012 SC 1485). The Supreme Court, on a careful perusal of all such decisions referred to above, expressed its view that the Special Judge, under any Act, cannot entertain a complaint filed before it and issue process after taking cognizance without the case being committed to it for trial by the competent magistrate. Such view was taken because the Special Court, under the Act, is essentially a Court of Sessions and the provisions of Section 193 of the Code of Criminal Procedure cannot be thrown out lock, stock and barrel.
13. However, a bleak argument was advanced on behalf of the petitioner that the heading ofSection 32 of the 1940 Act is „Cognizance of offences.‟ A primary rule of interpretation of statute is that the heading of a particular Section cannot control the plain words. The marginal note or the heading, can, in no circumstances, be used for whittling down the plain meaning of the Section and it could be used only in cases of ambiguity.
14. A statute is an edict of legislature and the most conventional way of interpreting it is to seek the intention of the maker. The intention of the makers of the statute is very clear when it uses the words that no Court, inferior to the Court of Sessions, shall try the offence punishable under the Act. The emphasis is on the words „try the offence‟ and not on the heading of the section, namely, „Cognizance of offences‟.
15. Thus, on both the scores, the present petition fails. The Special Court, being a Court of Sessions, is not empowered to take cognizance straightway. The Code of Criminal Procedure, being the parent statute, provides for ways of investigation, enquiry or trial. Unless there is a specific provision in the other law, the provisions of the Code of Criminal Procedure cannot be disregarded or displaced. „Blood‟ being a substance, which is used for mitigating the sufferings of human beings has, per force, to be treated as „drug‟ within the inclusive definition of „drug‟ under the Act.
16. The application, thus, stands dismissed.
(Ashutosh Kumar, J) Dilip.


Print Page

No comments:

Post a Comment