Gauhati High Court
Page No.# 1/5 vs The State Of Assam And Anr on 5 August, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/5
GAHC010258312022
2025:GAU-AS:10130
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./8/2023
MD MAZAHARUL SULTAN
S/O LATE RUSTAM ALI, R/O BHITORSUTI, P.O.-KALIABHOMORA, P.S.-
TEZPUR, DIST-SONITPUR, ASSAM, PIN-784027
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:ROUFUL ISLAM
S/O LATE SUKUR ALI AHMED
S.I. OF POLICE
MAHABHOIRAB POLICE STATION UNDER TEZPUR POLICE STATION
P.S.-TEZPUR
DIST-SONITPUR
ASSAM
PIN-78402
Advocate for the Petitioner : MR. P MAHANTA, MS. P SAHARIA
Advocate for the Respondent : PP, ASSAM,
Linked Case : Crl.Pet./538/2020
MD. MAZAHARUL SULTAN
S/O LATE RUSTAM ALI
R/O BHITORSUTI
P.O.-KALIABHOMORA
Page No.# 2/5
P.S.-TEZPUR
DIST-SONITPUR
ASSAM
PIN-784027
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM
2:ROUFUL ISLAM
S/O LATE SUKUR ALI AHMED
S.I. OF POLICE
MAHABHOIRAB POLICE STATION UNDER TEZPUR POLICE STATION
P.S.-TEZPUR
DIST-SONITPUR
ASSAM
PIN-784027
------------
Advocate for : MR. P MAHANTA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
:: PRESENT ::
HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioners: Mr. P. Mahanta,
Advocate .
For the Respondent: Mr. K.K. Parasar,
Addl. P.P., Assam.
Date of Hearing : 12.06.2025.
Date of Judgment : 05.08.2025.
JUDGMENT AND ORDER (CAV)
Heard Mr. P. Mahanta, the counsel appearing for the petitioner. Also heard Mr.
K.K. Parasar, the learned Addl. Public Prosecutor, Assam.
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2. The Criminal Petition No.538/2020 was filed praying for quashing the FIR relating
to Tezpur P.S. Case No.1674/2020. During pendency of this criminal petition, police
filed the charge sheet. Therefore, the Criminal Petition No.8/2023 was filed praying for
quashing the charge sheet in respect of PR Case No.1058/2022 pending in the court
of the Judicial Magistrate at Tezpur. Therefore, both the cases are taken up for
disposal as both arise out of the same FIR.
3. One woman named Mrs. Rahila Begum had lodged an FIR before police alleging,
inter alia, that the present petitioner Dr. Mazaharul Sultan insisted upon her, to take
treatment in his clinic. There were some other allegations against some other persons
in the said FIR. The informant Mrs. Rahila Begum alleged that the present petitioner
along with some other persons had ruined her life. On the basis of the said FIR, police
registered the Tezpur P.S. Case No.1506/2020.
4. During investigation of the said case, the Investigating Officer (the Respondent
No.2) found that Dr. Mazaharul Sultan was running a medical clinic on the basis of
some forged and fake certificates because the said petitioner could not produce any
legal documents in support of his profession. The Respondent No.2 alleged that the
petitioner Dr. Mazaharul Sultan was running a small hospital with facilities to keep
patients. According to the Respondent No.2, the petitioner Dr. Mazaharul Sultan was
running that business on the basis of forged documents. The petitioner Dr. Mazaharul
Sultan was allegedly pretending to be an MBBS doctor.
5. The learned counsel Mr. Mahanta confined his arguments within the provisions of
Drugs and Cosmetics Act, 1940. Mr. Mahanta submitted that Section 32 of the said Act
of 1940 prescribes that no prosecution shall be instituted except by an Inspector or
any Gazetted Officer of the Central Government or a State Government authorized in
writing in this behalf by the Central Government or a State Government by a general
or Special Order made in this behalf by that Government or the person aggrieved or a
recognized consumer association. Section 21 of the said Act defines the word
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Inspectors as mentioned in Section 32. According to Mr. Mahanta, a Sub-Inspector of
Police is not within the meaning of the word “Inspector” as mentioned in Section 21 of
the said Act of 1940.
6. The learned counsel Mr. Parasar has submitted that in this case Drugs and
Cosmetics Act, 1940 is not applicable. According to Mr. Parasar, this Act applies to
import, manufacture, distribution and sale of drugs and cosmetics.
7. I have considered the submissions made by learned counsel of both sides.
8. At this stage, let us go through the preamble of the Drugs and Cosmetics Act,
1940. It reads as under:
“An Act to regulate the import, manufacture, distribution and sale of drugs [and
cosmetics].
WHEREAS it is expedient to regulate the [import, manufacture, distribution and sale]
of drugs [and cosmetics];
AND WHEREAS the Legislatures of all the Provinces have passed resolutions in terms
of Section 103 of the Government of India Act, 1935 (26 Geo. 5, c. 2), in relation to
such of the above-mentioned matters and matters ancillary thereto as are enumerated
in List II of the Seventh Schedule to the said Act:”
9. The Drugs and Cosmetics Act, 1940 was amended in the year 1982. The
statement of objects and reasons of amending the Act of 1940 says that Drugs and
Cosmetics Act, 1940 regulates the import into, manufacture, distribution and sale of
drugs and cosmetics in the country. The problems of adulteration of drugs and also of
production of spurious and substandard drugs are posing serious threat to the health
of the community. It is, therefore, considered necessary to amend the Drugs and
Cosmetics Act, so as to impose more stringent penalties on the anti social elements
indulging in the manufacture or sale of adulterated or spurious drugs or drugs not of
standard quality which are likely to cause death or grievous hurt to the user. This
opportunity is also being availed of to incorporate certain other provisions on the other
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aspects of effective control of manufacture, distribution, sale of drugs and cosmetics
on the basis of experience gained in the working of the Act.
10. The statute Drugs and Cosmetics Act, 1940 regulates the import, manufacture,
distribution and sale of drugs in our country. The allegation brought against the
petitioner Dr. Mazaharul Sultan is that he was running a mini hospital without having
necessary qualification required for a doctor.
11. It may be mentioned that on a prior occasion, that is on 19 th September, 2011,
the Joint Director of Health Services, Sonitpur, Tezpur directed the petitioner Dr.
Mazaharul Sultan to close down his clinic immediately on the ground that he did not
have the permission from the competent authority to run his clinic. Therefore, the
petitioner Dr. Mazaharul Sultan filed a suit being Title Suit No.78/2011 in the court of
the Munsiff No.2, Tezpur, Sonitpur against the Joint Director of Health Service,
Sonitpur. The learned Munsiff by the judgment dated 18.06.2018 passed a judgment
and allowed the petitioner Dr. Mazaharul Sultan to run the clinic by practising medicine
in alternative medicine system and debarred him from prescribing allopathic medicine.
12. In this case, the view taken by the learned Munsiff No.2 is not relevant. The
allegation brought against the petitioner Dr. Mazaharul Sultan is that without having
an MBBS degree, he was treating patients in his hospital. Police filed the charge sheet
under Sections 420/467/468 and 471 of the Indian Penal Code read with Section 15 of
the Indian Medical Council Act, 1956. This Court is of the opinion that under the given
circumstances the prosecution should be given an opportunity to prove the allegation
against the petitioner Dr. Mazaharul Sultan.
13. This Court is of the opinion that this is not a fit case for exercising the power
under Section 482 and 397 of the Code of Criminal Procedure. Both the criminal
petitions are found to be devoid of merit and stand dismissed accordingly.
JUDGE
Comparing Assistant