Selling a drug without valid licence is a non-cognizable offence

Bombay High Court: The Division Bench comprising S.S. Shinde and Sangitarao S. Patil, JJ. quashed and set aside the criminal proceedings instituted in the Court of the Judicial Magistrate First Class, Chalisgaon, against the petitioner for selling a drug without a valid licence as punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940, since the said offence being non-cognizable, it’s cognizance could not have been taken on the basis of charge-sheet filed by the police officer.
The Assistant Commissioner, Jalgaon had passed an order suspending the petitioner’s licence to sell drugs from 1st October, 2013 to 15th October, 2013. It was alleged that on 10th October, 2013, the Assistant Commissioner and Drugs Inspector (Respondent 2) visited the petitioner’s store and without disclosing their identity, asked for a cough syrup, whereon the petitioner sold Alkof cough syrup to them while refusing to receive payment for the syrup. Thereafter, Respondent 2 lodged an FIR against the petitioner for the offence punishable under Section 27(b)(ii) of the Act. Subsequently, criminal proceedings were instituted on the basis of charge-sheet submitted by police.
The High Court observed that the petitioner’s licence had been suspended by Assistant Commissioner himself, and Respondent  2 was serving as Drugs Inspector since 2012. Therefore, it cannot be accepted that Drugs Inspector and Assistant Commissioner were not known to the petitioner. It was natural on the part of the petitioner to hand over the cough syrup on being asked by a Drugs Inspector, and his refusal to receive payment for the cough syrup indicates that he was not intending to sell the same. Lastly, the Court found that since the offence punishable under Section 27(b)(ii) of the Act has not been included in Section 36­-AC(1)(a) of the Act that enumerates the offences which have been made cognizable, the said offence is non-cognizable. Therefore police was not empowered to conduct an investigation without the Magistrate’s order. It was thus held that the cognizance of the said offence taken on the basis of the charge-sheet filed by the police officer was illegal and criminal proceedings instituted thereof are to be quashed and set aside. [Rajendra v. State of Maharashtra, , 2016 SCC OnLine Bom 8901, decided on October 10, 2016]

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