Police Cannot Prosecute Drugs & Cosmetics Act Offences Via FIR: Patna High Court

The Patna High Court has quashed criminal proceedings against a medical agency owner, ruling that police lack the statutory jurisdiction to investigate or file a charge sheet for offences exclusively falling under Chapter IV of the Drugs and Cosmetics Act, 1940. The court reaffirmed that such prosecutions can only be initiated through a formal complaint by a Drug Inspector, rendering police-led FIRs and subsequent cognizance void ab initio.

In a significant verdict, Justice Praveen Kumar of the Patna High Court set aside a trial court's order refusing to discharge a petitioner accused of stocking expired medicines and alleged contraband. The Court emphasized that once the police dropped charges under the Indian Penal Code and Narcotic Drugs and Psychotropic Substances Act, 1985, they retained no legal authority to proceed under the special pharmaceutical statute.

Key Takeaways

Statutory Exclusivity Upheld

Offences under Chapter IV of the Drugs and Cosmetics Act, 1940 must strictly follow the procedure under Section 32, barring police from using general Code of Criminal Procedure powers to bypass authorized Drug Inspectors.

Police Jurisdiction Limits

If initial allegations under the Narcotic Drugs and Psychotropic Substances Act, 1985 or Indian Penal Code are dropped during investigation, the police cannot continue prosecution solely for drug-related regulatory violations via a charge sheet.

Expired Stock Nuance

Simple possession of expired drugs does not automatically constitute a penal offence if the dealer proves the stock was segregated for return to manufacturers rather than displayed for sale.

Void Prosecution

Any judicial cognizance taken on a police report for special offences that require a formal complaint is legally unsustainable and constitutes an abuse of the judicial process.

Invalidity of Police-Led Prosecution

The Court noted that the case originated from a police FIR and resulted in a charge sheet under Sections 18, 18(A), 18(B), and 22(3) of the Drugs and Cosmetics Act, 1940. Relying on the precedent set in Union of India v. Ashok Kumar sharma and Ors. ( "(2021) 12 SCC 674": 2019 CaseBase(SC) 1671), the bench observed that the special procedure prescribed under Section 32 of the Act governs the institution of prosecution and cannot be circumvented.

The Court, in its reasoning, observed: "In the case of Union of India v. Ashok Kumar sharma and Ors. ( "(2021) 12 SCC 674": 2019 CaseBase(SC) 1671), the Hon’ble Supreme Court settled that the police cannot register an FIR, investigate, or submit a charge sheet under Section 173(2) Code of Criminal Procedure for the offences strictly falling under Chapter IV of the Drugs and Cosmetics Act, 1940. Cognizance taken on a police charge sheet rather than a formal complaint by the Drug Inspector is bad in law and void ab initio."

Analysis of Expired Medicines and Storage

The bench further examined the regulatory framework regarding expired medicines under the Drugs and Cosmetics Rules, 1945. While Section 18 prohibits the sale of drugs not of standard quality, the Court clarified that standard trade practices involve returning expired stocks. It was noted that the Bihar Drugs Control Laboratory had verified that the seized medicines complied with standards and were not counterfeit.

The Court has following directions:

"Resultantly, the impugned order dated 06.05.2016, rejecting the application filed by the petitioner seeking his discharge, passed by the learned 1st Additional District and Sessions Judge, Rohtas in Sasaram (T) P.S. Case No. 330 of 2007 as also all the consequential proceedings are hereby quashed. Accordingly, the application stands allowed."

Ratio

Cognizance of offences punishable under Chapter IV of the Drugs and Cosmetics Act, 1940 can only be taken upon a complaint instituted by an authorized Drug Inspector or designated authority as per Section 32. A police officer has no jurisdiction to file a charge sheet under Section 173(2) of the Code of Criminal Procedure for such specific offences, and any proceeding initiated through a police report instead of a formal complaint is void.

Background

The dispute began on July 24, 2007, when a Drug Inspector and District Licensing Authority raided 'Lucky Medical Agency'. The search allegedly yielded expired medicines and an empty bottle of Morphine. Initially, the police registered an FIR under Section 420 of the Indian Penal Code, Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and various sections of the Drugs and Cosmetics Act, 1940.

However, the police later dropped the Indian Penal Code and Narcotic Drugs and Psychotropic Substances Act, 1985 charges in the final report, citing a lack of evidence. The petitioner challenged the trial court's refusal to discharge him, arguing that the police had no authority to prosecute under the Drugs and Cosmetics Act, 1940. The petitioner also relied on the landmark ruling in State of Haryana Vs. Bhajanlal to argue that the proceedings were a malicious abuse of process. The High Court agreed, finding that since the seized items were not counterfeit and the procedural requirements were ignored, the trial could not proceed.

Case Details:
Case No.: Criminal Miscellaneous No.30442 of 2016
CNR No.: BRHC010337722016
Case Title: Sudama Prasad Gupta Vs. The State of Bihar & Anr.
Appearances:
For the Petitioner(s): Mr. N.K. Agarwal, Sr. Adv., Mr. Ashok Kumar Pandey, Adv.
For the Respondent(s): Mr. Jagdhar Prasad, APP

Source: 2026 CaseBase(PAT) 3331