27May2018

A Newspaper for the health conscious


No police jurisdiction in D&C Act, it only can assist in probe

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Query: “In my neighborhood, manufacturing of some spurious and sub-standard drugs is on. Does a police inspector in the area have any right to raid the premises where the illegal activity is being carried out? What will be the punishment for such offences?”

                                                —Suman Thakur

 

As per the Drugs & Cosmetics Act 1940 as amended in 2008 with effect from August 10, 2009, prosecution shall be instituted by drug inspector or by any gazetted officer of the Central Government or a State Governments authorised in writing by the Central Government or a State Government by a general or special order or by the aggrieved person or by a recognised consumer association by instituting a criminal complaint case against the person under section 32 of the Drugs & Cosmetics Act.

Lodging of FIR is contrary to the provisions of the Act and it is bad in law. Drugs & Cosmetics Act, 1940 is a special statute code in itself. By adding Section of IPC, police cannot make out its own case because the Act has own set of authorities authorised to conduct investigation, search, seizure and/or launch prosecution in respect thereof including enquiry into the matter. Hence, a police official has got no jurisdiction to institute a case under the Act.

There can be no manner of doubt that several life-saving drugs can make a difference between life and death to a patient at a critical time by the use of spurious/adulterated drugs. The offence under chapter IV of the Act is cognisable offence. The Police officer is better trained and equipped for prevention, investigation and prosecution of such crimes.

The offences being cognisable, the aggrieved person has a right to lodge a report with the police and the police, in turn, are bound to register a formal FIR and initiate investigation, which culminates in a report under Section 173 of the Cr. P. C. However, a drugs inspector should be associated during investigation by the police officer so that procedural aspects of seizure and analysis are properly followed.

The police have the power to arrest the offender without warrant under Section 41 and power to search and seizure without warrant under Section 102. But after the completion of investigation, the police officer is authorised to submit a report under Section 173, Cr. P. C. to the court, but the cognisance on such a report cannot be taken because of the embargo created by Section 32 of the Drugs & Cosmetics Act, which postulates that the cognisable of the offence under the Drugs & Cosmetics Act can be taken only on the complaint filed by the drug inspector or by any gazetted officer of the Central Government or a State Government authorised in writing by the Central Government or a State Government by a general or special order or by the aggrieved person or by a recognized consumer association.

If the investigating officer of the police is not authorised under Section 32 of the Drugs & Cosmetics Act as a gazetted officer in this behalf in that position, the police officer has no right to launch the prosecution against the accused person. The punishment varies and depends upon the various offences as committed by the person.

 

RAMESH CHAND, ADVOCATE

Nationally acclaimed  expert on Drugs

and Cosmetics Act (1940)

GLS Pharma

Cubit Pharma


Medical Devices ASEAN 2018