Yashoda Nandan, J.:— The applicant was prosecuted before the learned City Magistrate, Saharanpur, for an offence punishable under the Drugs and Cosmetics Act, 1940—hereinafter referred to as the Act.
2. A preliminary objection was raised to the prosecution on behalf of the accused. It was contended that Sec. 32 of the Act and Rule 51 of the Drugs and Cosmetics Rules, 1945—hereinafter referred to as the Rules—make it obligatory for an Inspector to obtain sanction for prosecution from the Controlling Authority, i.e the Director of Public Health. It was urged that the prosecution of the applicant had been launched by P.W 1, Sri S.K Bishnoi, Inspector of Drugs, not on the basis of a sanction obtained from the Controlling Authority, who happened to be the Director of Public Health but on the basis of one accorded by the Assistant Controller of Drugs, U.P vide his letter No. 4862 dated 28th September, 1967 which is on record. On a consideration of the relevant provisions of the Act and the Rules, the learned Magistrate rejected the contention and held that no sanction at all was needed for a prosecution being initiated by an Inspector appointed under the Act for breach of the provisions thereof. A revision filed before the learned Sessions Judge failed and consequently the applicants have invoked the powers of this Court under Section 439, Cr. P.C
3. Learned Counsel for the applicant invited my attention to a letter (Ex. Ka. 11) dated 12th July, 1966, addressed by Sri S.K Bishnoi, the Inspector of Drugs, at whose instance the applicant is being prosecuted, to the Assistant Drugs Controller, U.P, Lucknow. In his letter, Sri Bishnoi, after giving facts of the case ends as follows:—
“I therefore refer the matter to your goodself for favour of kind information and further necessary action. In case the prosecution is to be launched, the same may be sanctioned.”
4. My attention has further been invited to Ex. Ka. 12, a letter sent by Sri B.S Saxena, Assistant Drugs Controller, U.P in response to Ex. Ka. 11. In this letter Sri Saxena has referred to Rule 51 of the Rules and directed the Inspector to launch prosecution against Medico Laboratories. Saharanpur, for manufacturing, stocking and exhibiting for sale substandard quality of the drugs mentioned therein, thus contravening section 18(a)(i) of the aforesaid Act. On the basis of these two documents, learned Counsel urged that in fact sanction was sought by the Inspector from the Assistant Drugs Controller and was granted. Learned Counsel for the applicant has placed before me a Notification No. 3237/(3)/XVI (P.M) 425-47 by which the Governor of the State was pleased to appoint under Rule 50 of the Rules the Director of Public Health as the Controlling Authority, This notification has been issued under Rule 50 of the Rules framed under the Drugs Act and not under Rule 50 framed under the Act with which we are concerned. I shall, however, assume for the purposes of this case that a similar notification has been issued under Rule 50 of the Rules appointing the Director of Public Health as the Controlling Authority for the purposes of the Act also.
5. Learned counsel for the applicant contended that by reason of Rule 51, Sri Bishnoi had no authority to prosecute the applicant under the Act except under instructions from the Controlling Authority, viz. the Director of Public Health. He submitted that since there was no sanction accorded by the Director of Public Health for prosecution of the applicant, the complaint filed by the Inspector could not justify cognizance of the case being taken by the learned Magistrate before whom the applicant is being tried.
6. Having heard the learned Counsel for the applicant and having considered the relevant provisions of the Act and the Rules framed thereunder, I am of the opinion that there is no force in the contention.
7. It is the legislative practice that whenever the legislature requires a sanction being accorded by some authority before a court can take cognizance of an offence it enacts so in clear and unambiguous language. Reference in this connection might be made to section 196-A of the Code of Criminal Procedure, section 20 of the Prevention of Food Adulteration Act and to section 314 of the U.P Municipalities Act, 1916. On the other hand, section 32 of the Act runs as follows:—
“32(1) No prosecution under this Chapter shall be instituted except by an Inspector.
(2) No Court inferior to that of a Presidency Magistrate or of a Magistrate of the first Class shall try an offence punishable under this Chapter.
(3)………………………”
8. While section 32 does provide that a prosecution for an offence under the Act must be initiated by an Inspector and not otherwise, it does not provide that the Court shall not take cognizance of an offence even when a complaint had been filed by an Inspector unless the prosecution has been sanctioned by some authority prescribed either by the Act or by the Rules framed thereunder. The provisions of section 32 of the Act are in obvious contrast to section 196-A of the Code of Criminal Procedure and similar provisions in other enactments prescribing for a sanction condition precedent to the taking of cognizance by a court.
9. Learned counsel for the applicant has placed reliance on section 21(2) of the Act and Rule 51 of the Rules. Section 21(2) is as follows:—
“The powers which may be exercised by an Inspector and the duties which may be performed by him, the drugs or (classes of drugs or cosmetics or classes of cosmetics) in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed shall be such as may be prescribed.”
10. Rule 51 runs as below:
“Duties of Inspectors of premises licensed for sale—Subject to the instructions of the controlling authority, it shall be the duty of an Inspector authorized to inspect premises licensed for the sale of drugs—
(1) to inspect not less than twice a year all establishments licensed for the sale of drugs within the area assigned to him;
(2) to satisfy himself that the conditions of the licences are being observed;
(3) to procure and send for test or analysis, if necessary, imported packages which he has reason to suspect contain being sold or stocked or exhibited for sale in contravention of the provisions of the Act or Rules thereunder;
(4) to investigate any complaint in writing which may be made to him;
(5) to institute prosecutions in respect of breaches of the Act and Rules thereunder;
(6) to maintain a record of all inspections made and action taken by him in the performance of his duties, including the taking of samples and the seizure of stocks, and to submit copies of such record to the controlling authority;
(7) to make such enquiries and inspections as may be necessary to detect the sale of drugs in contravention of the Act;
(8) when so authorised by the State Government, to detain imported packages which he has reason to suspect contain drugs, the import of which is prohibited.”
11. Learned Counsel submitted that though by a reason of Section 32(1) of the Act there is implicit in Inspectors a power to launch prosecutions under the Act the power is exercisable only subject to conditions, limitation and restrictions prescribed by rules. Rules 51(5) as quoted above was relied upon and it was submitted that the power to initiate proceedings in a Court for breach of provisions of the Act could be exercised only on instruction from the ‘controlling authority.’ It was submitted that when the rule-making authority provided that the power of Inspectors to institute prosecutions for breaches of provisions of the Act and Rules framed thereunder shall be subject to instructions of the ‘controlling authority’. It laid down that no prosecution shall be initiated except after prior sanction of the controlling authority. The word ‘instruction’, according to the learned Counsel, in Rule 51 is synonymous with ‘prior sanction’. The submission, in my opinion, has no substance. Section 32, to which a reference has been made earlier, implies the existence of a power in an Inspector appointed under the Act to initiate prosecutions for offences punishable under the Act. By taking recourse to section 21(2) Rules could have been framed providing that Inspectors shall not initiate prosecutions except after obtaining prior sanction of the controlling authority. No such rule however exists and I do not find it possible to read Rule 51(5) as making it incumbent for Inspectors to obtain sanction before filing a complaint. The rule-making authority in exercise of powers under the Act has made it clear by Rule 51(5) that Inspectors appointed under the Act have power to institute prosecutions in respect of breaches of the Act and the Rules framed thereunder. The Rule merely provides that the power shall be exercised subject to instructions of the controlling authority. Rule 51 while investing the Inspectors with various powers in fact imposes on them statutory duties enumerated therein. The Rule merely gives power to the ‘controlling authority’ to issue executive instructions with regard to details regarding the manner of performance of those statutory duties. The instructions contemplated by the Rule can only be such as supplement the powers. It could not in my opinion, have been intended by the Rule, making authority that the ‘controlling authority’ could by executive instructions obstruct the performance of the statutory duties imposed by the Rule itself. If the Rule is interpreted as requiring the Inspectors to obtain prior sanction of the ‘controlling authority’ before performing the duties imposed by the Rule that exactly would be the result. An examination of the various sub-clauses of the rule supports the conclusion arrived at by me. Sub-clause (1) of the Rule imposes a duty on Inspectors to inspect not less than twice a year all establishments licensed for the sale of drugs within the area assigned to them. Is it possible to construe the rule as requiring Inspectors to obtain prior sanction before they carry out the two minimum Inspections by statute required to do? Can it be reasonably contended that by utilizing the power to issue instructions the ‘controlling Authority’ can withhold sanction to such inspections and thus defeat the requirements of a statutory rule? The only rational answer to these questions must necessarily be in negative. Where a rule making authority intended that any power envisaged by the rule or any duty imposed by it should not be exercised or performed except after prior authorisation by some authority it has provided to that effect. Under clause (8) for instance an Inspector can detain imported goods if the other conditions are satisfied only on prior authorization by the State Government. There is no such requirements as far as clause (5) of the Rules is concerned. If in the present case Sri Bishnoi either as a matter of caution or on account of some departmental instructions did in fact obtain sanction of the Assistant Controlling Authority before filing a complaint against the applicants it can have no bearing on the interpretation of the provisions of the Act or the Rules. For the reasons given, the submission made in support of this revision is unacceptable tome. No other point was urged.
12. There is no merit in this revision which is hereby dismissed. The interim order dated 21st September, 1970 is vacated. The record of the case shall be sent down to the trial Magistrate at an early date to enable speedy disposal of the case.