High Court · 2025

Crl.O.P.No.11168 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.04.2025CORAM:THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYANCrl.O.P.No.11168 of 2025andCrl.M.P.Nos.7471 & 7473 of 2025 1.M/s.Johnson & Smith Co B-48, III Stage, Peenya Industrial Estate,Bangalore 560 058Represented by its Partner, C.Ashok Kumar 2.C.Ashok Kumar.....PetitionersVsState rep by Drugs Inspector Chidambaram Range,O/o Assistant Director of Drugs Control,No.11 C, First Floor, Ranganathan Street,Villupuram 605 602.....RespondentPRAYER: Criminal Original Petition is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, to call for the entire records in S.C.No.9 of 2023 pending on the file of Principal District Judge, Cuddalore and quash the same.Page 1 of 8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11168 of 2025For Petitioners: Mr.P.Ramesh KumarFor Respondent: Mr.A.Gopinath Government Advocate (Crl.Side)O R D E R This Criminal Original Petition has been filed praying to quash the proceedings in S.C.No.9 of 2023 pending on the file of Principal District Judge, Cuddalore.2. Heard the learned counsel for the petitioners and the learned Government Advocate (Crl.Side) appearing for the respondent.3. The learned Judicial Magistrate-I, Chidambaram had taken cognizance of the complaint filed by the respondent in STC.No.271 of 2021, for offences under Sections 17(b), 18, 18(c), 21, 22, 23, 25, 27 & 35 of the Drugs and Cosmetics Act, 1940 (for short, the Act) for the contravention of Section18(a)(i) of the said Act, Section 18(a)(i) read with Rule 96 of Drugs and Costmetics, Rule 1945, which is deemed to be misbranded under Section 17(b) of the said act, section 18(c) of the said act read with Rule 74, read wth condition No:3 of Form 25, of Drugs and Cosmetics Rule 1945, punishable under Section 27(d) of the said act. Page 2 of 8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11168 of 2025Thereafter, the petitioners filed discharge petition in Crl.MP.No.841 of 2023, which was dismissed on 24.10.2024. Earlier, the learned Judicial Magistrate-I, Chidambaram took note of Section 32 of the Act and came to the conclusion that the offences are exclusively triable by a Court of Sessions in view of Section 32(2) of the Act and passed an order of committal on 10.10.2022, pursuant to which the Principal District Judge, Cuddalore has taken cognizance of the same in SC.No.9 of 2023.4. In the instant case, the petitioners are facing charges for an offence under Section 27(d) of the Act, which is punishable with a maximum imprisonment of two years and with fine. This offence comes within the scope of Section 36A of the Act. However, the Court below came to the conclusion that by virtue of Section 32 of the Act, the case should be tried only by the Court of Sessions.5. Such a finding rendered by the Court below is not sustainable inview of the clarifications issued in the recent judgment rendered by this Court in Crl.O.P.No.13125 of 2022 dated 04.01.2024 wherein the relevant portions read thus :Page 3 of 8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11168 of 2025"3. Chapter IV of the Act covers the provisions which provides for the Courts which can take cognizance of the offence and deal with the case. Section 32 of the Act deals with cognizance of offences and Section 32(2) of the Act is extracted hereunder:32.Cognizance of offences....(2) Save as otherwise provided in this Act, no Court inferior to that of a Court of Session try an offence punishable under this Chapter. 4. It is clear from the above provision that no Court inferior to that of a Court of Session can try any offence punishable under Chapter IV, save as otherwise provided in the Act. This would mean that if there is any other provision under the Act which enables some other Court to try the offence, Section 32(2) of the Act will have to yield to that provision.5. The other provisions which have to be taken into consideration are Sections 36A and 36AB. Section 36A deals with certain offences which can be tried summarily. This provision was brought in through an amendment made by Act 68 of 1982 which came into effect from 01.02.1983. The provision itself start with a non-obstante clause and its states that the offences punishable with imprisonment for a term not exceeding three years, other Page 4 of 8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11168 of 2025than an offence under Clause(b) of Sub-section (1) of 33-I, can be tried in a summary manner by a Judicial Magistrate of the first class especially empowered in this regard by the State Government or by a Metropolitan Magistrate. The provision also makes it clear that the Magistrate Court must follow the provisions of Sections 262 to 265 of Cr.P.C., while conducting the summary proceedings.6. It is quite apparent from the above provision that Section 36A is one exception to Section 32(2) of the Act. Whatever offences fall within the scope of Section 36A can be dealt with by means of summary proceedings by the Judicial Magistrate of first class especially empowered by the State Government or by any Metropolitan Magistrate. Paragraph 15 of the order does not deal with cases of this nature and it is made clear that the cases which falls within the scope of Section 36A will be tried only by the notified Judicial Magistrate of first class or by any Metropolitan Magistrate and it does not require any committal to the Sessions Court.7. The Second category which is also an exception to Section 32(2) of the Act are those cases which are falling under Section 36AB. This provision was brought into force through Act 26 of 2008 w.e.f., 10.08.2009. There are certain specified offences relating to Page 5 of 8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11168 of 2025adulterated drugs or spurious drugs which can be tried before the Special Courts. Such Special Courts must be constituted / designated by a notification by the Central Government or the State Government in consultation with the Chief Justice of the High Court. Wherever, such Special Court is constituted and the offences contemplated under Section 36AB is committed, it can be tried only before the Special Court.8. To make it more clearer, only those cases which do not fall within the scope of Section 36A and Section 36AB, will come within the scope of Section 32(2) of the Act. Only such cases can be tried by the Court of Sessions as contemplated under Section 32(2) of the Act. This clarification will sufficiently take care of the prevailing confusion and a copy of this order shall be marked to the Principal District Judges across the State of Tamil Nadu. The cases shall be taken cognizance by the concerned Courts in line with the clarification issued in this order." 6.In light of the above clarifications issued in the said order dated 04.01.2024, the order of committal dated 10.10.2022 passed by the learned Judicial Magistrate-I, Chidambaram is hereby set aside. The matter shall be tried by the learned Judicial Magistrate-I, Chidambaram Page 6 of 8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11168 of 2025in line with Section 36A of the Act and the proceedings shall be completed as expeditiously as possible. 7.In the result, this criminal original petition stands allowed. Consequently, the connected Crl.M.Ps are closed.16.04.2025Index: Yes/NoNeutral citation: Yes/NoSpeaking/non-speaking orderlokTo1.Principal District Judge, Cuddalore 2. Judicial Magistrate-I, Chidambaram 3.Drugs Inspector,Chidambaram Range,O/o Assistant Director of Drugs Control,No.11 C, First Floor, Ranganathan Street,Villupuram 605 6024.The Public Prosecutor,Madras High Court,Chennai.Page 7 of 8 https://www.mhc.tn.gov.in/judis Crl.O.P.No.11168 of 2025G.K.ILANTHIRAIYAN, J.lokCrl.O.P.No.11168 of 202516.04.2025Page 8 of 8