2012 ALL MR (Cri) 2569
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. KHANWILKAR AND A.R. JOSHI, JJ.
M/S. Kamud Drugs Pvt. Ltd. Vs. State Of Maharashtra & Anr.
Criminal Writ Petition No.1708 of 2012
4th July, 2012
Petitioner Counsel: Mr. SUBHASH JHA a/w. SWAPNIL AMBURE i/b. DINESH TIWARI
Respondent Counsel: Mrs. U.V. KEJARIWAL, APP, FRANCIS SALDANHA, Spl.P.P.
Narcotic Drugs and Psychotropic Substances Act (1985), Ss.41(2), 80 - Drugs and Cosmetics Act (1940), S.25 - Copy of test reports of samples - Petition for - Offence committed under NDPS Act - Samples also taken by authorised officer under the provisions of NDPS Act - Test reports cannot be sought under the provision of Act of 1940 - S.25 of 1940 Act would be attracted only when the action is taken under that Act, not otherwise - Contention that by virtue of S.80 of NDPS Act reports can be sought even under provisions of 1940 Act, not tenable.
In the instant case the petitioner requested for a copy of test reports of samples taken by Authorised Officer under S.25 (2) of Drugs and Cosmetics Act. However the offence in question was committed under NDPS Act. Held, the requirement of furnishing one copy of the report of the Government Analyst to a person from whom the sample is collected under Section 25(2), is in respect of the samples collected in exercise of the powers under Chapter-IV of the Drugs and Cosmetics Act of 1940. That is amply clear from sub-section (1) of Section 25 which refers to Section 23(4) of the Act of 1940. Section 23 in turn opens with the expression that where an inspector takes any sample of a drug or cosmetic under that chapter of the Drugs and Cosmetics Act. This pre-supposes that the provisions of Section 25 will be attracted only in respect of action taken by the Inspector appointed under the Act of 1940; and which action is in exercise of powers thereunder and not otherwise. The question of issuing writ directing respondent authority to furnish one copy of the Government Analyst report to the petitioner under Drugs and Cosmetics Act does not arise.
Section 80 of the NDPS Act envisages that the provisions in that Act or the rules made thereunder shall be in addition to, and not in derogation of the Act of 1940 or the rules made thereunder. The question of applicability of S.25 of 1940 Act, even in a case under NDPS Act, may arise in a case where the collection of samples was by the Inspector appointed under that Act. That is not the case. This interpretation cannot be said to be in derogation of the provisions of the Act of 1940. The provisions in section 80 of the NDPS Act cannot be made the basis to issue direction to the authorised officer under the NDPS Act to comply with the procedure provided in the Act of 1940. [Para 2,3,4]
JUDGMENT
A. M. KHANWILKAR, J. :- Heard Counsel for the parties. The petitioner has filed this writ petition to direct respondent No.2 to provide test reports in respect of the samples collected from the petitioner company. This relief is founded on the provisions of Section 25(2) & (3) of the Drugs and Cosmetics Act, 1940 (for short, hereinafter referred to as "the Act of 1940")
2. In the petition, it is no where stated that the collection of subject samples was by the "Inspector" from the petitioner company in exercise of powers under the provisions of the Act of 1940. It is common ground that the petitioner is facing prosecution for the offence punishable under the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, hereinafter referred to as "the NDPS Act, 1985"). The subject samples were collected in connection with the said offence and the complaint has already been registered after due enquiry before the appropriate Court. The complaint adverts to the report given by the Government Analyst. The Counsel for the Union of India submits that copy of that report is part of the complaint and has been furnished to the petitioner therewith. Notably, the panchnama which is annexed to this petition (Exhibit-C) itself refers to the fact that the search and seizure was done in exercise of powers under Section 41(2) of the NDPS Act, 1985.
3. The question is : whether the petitioner is entitled to insist for one copy of the report as provided in Section 25(2) of the Act of 1940. As aforesaid, in the entire petition, no case is made out that the samples were collected from the petitioner by the Inspector in exercise of powers under the Act of 1940 as such. The requirement of furnishing one copy of the report of the Government Analyst to a person from whom the sample is collected under Section 25(2), is in respect of the samples collected in exercise of the powers under Chapter-IV of the Act of 1940. That is amply clear from sub-section (1) of Section 25 which refers to Section 23(4) of the Act of 1940. Section 23 in turn opens with the expression that where an inspector takes any sample of a drug or cosmetic under that chapter of the Act of 1940. This pre-supposes that the provisions of Section 25 will be attracted only in respect of action taken by the Inspector appointed under the Act of 1940; and which action is in exercise of powers thereunder and not otherwise. As no case is made out in the petition in that behalf, the question of issuing writ directing respondent No.2 to furnish one copy of the Government Analyst report to the petitioner does not arise.
4. Counsel for the petitioner submits that keeping in mind the purport of Section 80 of the NDPS Act, 1985, it would follow that rigors of section 25(2) of the Act of 1940 must be observed even in respect of action in connection with prosecution under NDPS Act. This argument clearly overlooks the necessity of collection of the sample by the Inspector in exercise of the powers under chapter IV of the Act of 1940. In the first place, the Act of 1940 defines as to who is an 'Inspector' for the purposes of that Act, vide Section 3(e). The powers and duties of persons appointed as 'Inspectors' under the Act of 1940 have been delineated under section 21 r/w 22 of that Act. The procedure to be followed by the Inspectors appointed under that Act including during collection of samples is provided in section 23 r/w 25 of that Act, which explicitly opens with taking of any sample of drugs or cosmetics under the Chapter in which those provisions are found. That, however, is relevant to actions under the Act of 1940, by the Inspector appointed under that Act. In the present case, the sample is taken by authorized officer under section 41(2) thereof. Since the action against the petitioner is under the NDPS Act, procedure provided thereunder has been followed, which does not require furnishing of one copy of the report of the Government Analysts to the person from whom the sample is taken. The copy thereof, however, is supplied to the petitioner alongwith complaint filed for prosecution under the NDPS Act. The fact that the petitioner has been supplied with that copy is not disclosed in the present petition. Be that as it may, section 80 of the NDPS Act envisages that the provisions in that Act or the rules made thereunder shall be in addition to, and not in derogation of the Act of 1940 or the rules made thereunder. The question posed by the petitioner may arise in a case where the collection of samples was by the Inspector appointed under the provisions of the Act of 1940 in exercise of powers under that Act. That is not the case on hand. This interpretation cannot be said to be in derogation of the provisions of the Act of 1940. Taking any other view would mean that the term 'Inspector' occurring in section 25 of the Act of 1940 would include any officer or person collecting samples of drugs and cosmetics for the purposes other than the Act of 1940. That would be rewriting that provision, which cannot be countenanced. In our view, the provisions in section 80 of the NDPS Act cannot be made the basis to issue direction to the authorised officer under the NDPS Act to comply with the procedure provided in the Act of 1940 - which is made applicable to the Inspectors appointed under that Act, to exercise powers under that Act.