Whether drug inspector appointed under Drugs and cosmetics Act can conduct raid in respect of Ayurvedic medicine under Drugs and Magic Remedies Act?

 It is no doubt that for the offending or misleading advertisement issued by the Medical Practitioners, action is liable to be taken as per the provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. But, in the instant case, whether the fourth respondent is competent and has jurisdiction to initiate action is the moot question. A perusal of the Government Order in G.O.(Ms) No. 421, Health and Family Welfare (IM2(2)) Department, dated 07.11.2007 notifies that under the powers conferred by Section 33-G of the Drugs and Cosmetics Act, 1940, the Governor of Tamil Nadu appoints the District Siddha Medical Officers of the Indian Medicine and Homeopathy Department to be Inspectors for the areas within their respective jurisdiction, for Ayurveda, Siddha and Unani Drugs. This Notification drawing powers from the Drugs and Cosmetics Act, 1940, appoints Inspectors of Ayurveda, Siddha and Unani Drugs for Indian Medicine and Homeopathy Department. Chapter IV-A of the Act, specifically dedicated to Ayurveda, Siddha and Unani Medicines. The impugned advertisement was made for a medicine under the category of Ayurveda, Siddha and Unani. In that event, the exclusive jurisdiction is conferred with the Drug Inspector appointed under Chapter IV-A of the Act. The Government Order in G.O.(Ms) No. 313, Health and Family Welfare Department, dated 23.09.2003 reveals that the fourth respondent was appointed as a Drug Inspector under Section 21 of the Act, who is empowered to deal with the Allopathy drugs only and he is not an Inspector appointed under Chapter IV-A Section 33-G of the Act. Therefore, the fourth respondent has no jurisdiction to issue such notice. {Para 5}

7. It is also noted that the Government issued Notification in the Official Gazette for appointing Drug Inspectors of Indian Medicine District wise at the Office of the District Siddha Medical Officer. Therefore, it is very clear that the Inspectors of Allopathy medicine and Inspector of Ayurveda, Siddha and Unani are acting in different spheres exercising their powers with respect to the medicine of their respective fields. An Allopathy Doctor cannot be said to be an expert in Siddha or Ayurveda Medicine. Likewise, a Siddha Doctor cannot be an expert in respect of Allopathy medicine. The advertisement standards can be controlled only by the authorities appointed under the respective provisions of the Act. In that view of the matter, if at all an action has to be initiated, it should be initiated by the Inspectors appointed under Schedule IV-A of the Act and not by an Inspector appointed under Section 21 of the Act. In view of the same, the action initiated by the fourth respondent is absolutely without jurisdiction.

 IN THE HIGH COURT OF MADRAS

W.P. Nos. 34099 of 2012 and 45 of 2013

Decided On: 11.04.2022

V. Dharmalingam Vs. Union of India and Ors.

Hon'ble Judges/Coram:

M. Govindaraj, J.

Citation: MANU/TN/3934/2022.

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Supreme Court: Police officer can not register offence, arrest accused and investigate the case under the Drugs and Cosmetics Act

THE CONCLUSIONS/DIRECTIONS

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

I. 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 Code of Criminal Procedure, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same.

II. 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.

III. Having regard to the scheme of the Code of Criminal Procedure 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 Code of Criminal Procedure, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the Code of Criminal Procedure.

IV. 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 Code of Criminal Procedure.

V. 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.

VI. 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.

VII. 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 Code of Criminal Procedure, but also immediately report the arrests to their superior Officers.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 200 of 2020 

Decided On: 28.08.2020

 Union of India (UOI)  Vs. Ashok Kumar Sharma and Ors.

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Whether it is necessary notify appointment of drug inspector in official gazette?

It is to be noted here that the provision of section 21 of the Drugs and Cosmetics Act, 1940, makes it abundantly clear that the post of Drug Inspector is a very vital public post with wide range of powers to take samples and seize the samples and prosecute the persons for selling the adulterours, suprious and sub-standard quality drugs. In view of such vital powers conferred bysection 21 of the Drugs and Cosmetics Act, 1940 on such Drug Inspectors, the said section clearly, mandates that the Central Government or the State Government, may issue notification in Official Gazatte so as to appoint such Drug Inspectors for such areas as assigned to them. The intention of the legislature is very clear from the said section 21 of the Drugs and Cosmetics Act, 1940 that the appointment of such a person holding such an important post as a Drug Inspector, especially in the interest of public heath, obviously will have to be notified in the Official Gazette and that the said notification should indicate the area in which the said Drug Inspector can exercise his powers. In fact, section 21 does not say that the publication of notification in Official Gazette is discretionary. If one were to look at the wording of the said section carefully, the Central Government or the State Government may appoint such qualified persons as the Drug Inspectors as it thinks fit. In fact, the wording of the said section 21 shows that there is coma after the word may and not before the said word so as to construe that the issuance of the notification in the Official Gazette is discretionary.

41. Taking into account all the purposes and objects of the Act and the powers conferred on the Drug Inspector who is the vital authority to initiate the prosecution, I hold that the appointment of Drug Inspector can only be through an Official Gazette Notification and not otherwise. I am also of the opinion that such a notification should also indicate the area in which such a Drug Inspector can operate and exercise his powers, and the same should not be left to conjectures and surmises of the public.

Bombay High Court

The State Of Maharashtra vs Shri R.A. Chandawarkar & Other on 18 February, 1998

Equivalent citations: 1999 (5) BomCR 519, 1999 BomCR Cri, (1999) 3 BOMLR 394, 1999 CriLJ 4449, 1999 (2) MhLj 650

Bench: S Radhakrishnan

Read full judgment here; click here

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