PRASHANT KUMAR AGARWAL, J. - (1.) The accused-petitioner has filed this second application for grant of bail under Section 439 Cr.P.C., 1973 in respect of FIR No.718/2015 registered at Police Station Shipra Path, Mansarovar, Jaipur for the offences under Sections 420, 487 and 120-B Indian Penal Code and Sections 18 (a) (i), 27 (a), 27 (c), 27 (d), 18 (c), 27 (b) (ii) and Section 36-AC of the Drugs and Cosmetics Act, 1940. The first application filed by the petitioner was dismissed by this Court by a reasoned order dated 14.12.2015 at the stage of investigation after considering the evidence collected during investigation which was produced before this Court by way of case diary. Thereafter, charge-sheet has been filed against the petitioner for the aforesaid offences and cognizance has also been taken. It is to be noted that as the offences for which the charge-sheet has been filed against the petitioner are triable by the Court of Sessions Judge which has been declared to be a Court of Special Judge, the case was committed for trial to it which has been registered as Sessions Case No.45/2016.
(2.) Brief relevant facts for the disposal of this application are that aforesaid FIR came to be registered against the petitioner on 3.11.2015 at Police Station Shipra Path, Mansarovar, Jaipur at the instance of Drug Inspector complainant-Shri Bachan Singh Meena on the premise that on 2.11.2015 when the premises of petitioner were searched, he was found to manufacture several misbranded, adulterated and spurious drugs for the purpose of sale without any valid licence or permit. It was also alleged that the petitioner was found in possession of the large stock of such drugs which were seized and sealed. On the basis of aforesaid FIR, police undertook investigation and collected further evidence and finally charge-sheet was filed for the aforesaid offences in the Court of Additional Chief Judicial Magistrate No.11, Jaipur Metropolitan, Jaipur who took cognizance and committed the case for trial to Sessions Judge, Jaipur Metropolitan, Jaipur. The second application filed by the petitioner for grant of bail under Section 439 Cr.P.C., 1973 came to be dismissed by the Sessions Judge, Jaipur Metropolitan vide order dated 16.3.2016. Charge for offences under Sections 420 and 487 Indian Penal Code and for offences under Sections 18 (a) (i), 18 (c) read with Sections 27 (c) and 27 (b) (ii) has been framed by the trial Court vide order dated 11.3.2016.
(3.) In support of the application, learned counsel for the petitioner raised the following grounds:- (i) As per Section 32 of the Act, cognizance for an offence under the Act can be taken only on the basis of a complaint made by a Drug Inspector or any Gazzeted Officer of the Central Government or State Government authorised in writing in this behalf or by a person aggrieved or a recognized consumer association, but in the present case charge-sheet has been filed by the police which was not competent even to register an FIR and investigate an offence punishable under the provisions of the Act. As per this provision, police was not competent to laid charge-sheet and prosecution of petitioner on the basis of such charge-sheet is totally illegal. (ii) Investigation has been conducted in the case violating all mandatory provision of the Act and Rules framed thereunder and the arrest of the petitioner is illegal and in violation of his fundamental rights. (iii) That offence under Section 420 Indian Penal Code is made out even prima facie as essential ingredients to constitute the offence of cheating as defined under Section 415 Indian Penal Code are disclosed. It is the case of prosecution that on the misrepresentation of petitioner any person delivered any property or other thing to him. (iv) From the contents of charge-sheet and the documents filed alongwith it, it is clear that the provisions of Sections 21 and 22 of the Act have been violated and the procedure prescribed under Section 23 of the Act to take samples has been properly followed. There is violation of Rules 55, 55 (a) and 57 also. (v) As required under Section 23 of the Act one of the samples was given to the petitioner and copy of the report of analyst was also provided to him and in absence thereof, petitioner could exercise his right to get the sample tested or analyses or to adduse evidence in contravention of the report received from the Government Analyst.;