ADITYA KUMAR TRIVEDI,J. - (1.) While hearing these petitions, one of us, (Justice Trivedi) had found that majority of the judgments identifying sole source of prosecution by way of filing complaint petition that too by the Drug Inspector, under Drugs and Cosmetics Act (for brevity 'Act') is based upon the principle decided by the Single Bench in Hindustan Lever Limited v. State of Bihar and Ors reported in 1997(1) BLJ 899, which later on considered by the Division Bench under Cr. Misc. No. 50246/2006 (Om Prakash Singh v. State of Bihar (DB) as well as Shankar Kumar Ghosh v. State of Bihar Cr.WJC No. 719/1998 with Cr. Misc. No. 808 of 1998, Om Prakash Sah v. State of Bihar and approved. Also there happens to be reference of order dated 01.10.2003 passed in CrWJC No. 472/2013, order dated 18.07.2013 passed in CrWJC 120/2010, order dated 12.04.2013 passed in CrWJC No.110/2013, but during course of consideration, the relevant provisions of law as enumerated under the Act along with the contrary view so decided prior to Hindustan Lever Limited (Supra) in Raghunath Bhagat and Anr. v. State of Bihar and Anr reported in 1991 CrLJ 2054, the subsequent consideration of Hindustan Lever Limited (Supra) in the case of Om Prakash Agrawal v. S. Kullu, Addl. Dy. Commissioner, Singhbhum, Chaibasa and Ors. reported in (1993) 3 BLJR 2148 has not been considered. Furthermore, the subsequent finding so recorded by the Apex Court in Assistant Electric Engineer v. Satyendra Rai reported in 2012 (1) PLJR 476, Vishal Agrawal and Anr. v. Chhattisgarh State Electricity Board and Ors reported in AIR 2014 SC 1539 have also been taken into consideration whereupon, opined that the veiw needs reconsideration. Consequent thereupon, vide order dated 27.06.2014, the matter has been referred to Division Bench and accordingly, directed to be listed after taking permission from Hon'ble the Chief Justice.
(2.) In terms thereof, the matter came up before the Division Bench and after elaborate consideration, vide order dated 12.08.2015 the Division Bench directed the matter to be listed before the Larger Bench whereupon, the matter is before us.
(3.) The Division Bench while referring the matter has formulated the following points:- (a) Is not it that in absence of any prescription as regards taking cognizance of an offence under Chapter IV of the Act, it could be only the Court of Magistrate who has to act under Section 190 CrPC? (b) Is not it that Section 32 of the Act is attracted only in respect of offences which are defined and made punishable by Chapter IV of the Act and other provisions, like Section 13, 33-I and 33-J of the Act are not covered by Section 32 of the Act and in cases of those Sections which are falling under Chapter III and IV-A cognizance and trial has to be undertaken by Courts other than the court of Sessions as per provisions contained under Chapters III and IV-A of the Act and if that is so and in absence of any special provision barring the investigation of offences which are declared cognizable by Section 36 AC is not the police competent to register the offence under Section 154 CrPC and to investigate the same and lay down the charge-sheet before the courts of Magistrate for taking cognizance? (c) Whether the judgments/orders of the Court in CrWJC No. 719/1998 and Cr.Misc. No. 808/1998 and also Cr.Misc. No. 50246/2006 require consideration? (d) Should not the police register a case and investigate the same even in respect of offences under Chapter IV of the Act as appears held by implication by the Supreme Court in Vishal Agrawal and Anr (Supra), of course in context to an enactment other than the Act?;