1. Narendra Sahi 2. Surjit Hota v. 1. State of Jharkhand 2. Sujit Kumar, Drug Inspector, Giridih
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(Cr.) No.188 of 2018 1. Narendra Sahi 2. Surjit Hota Versus 1. State of Jharkhand 2. Sujit Kumar, Drug Inspector, Giridih. With Cr. Rev. No.768 of 2018 --- … …Petitioner(s) … … Respondent(s)
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR For the Petitioner(s) For the State --- : Mr. Indrajit Sinha, Adv. : Mrs. Nirupama, A.C. to Sr. S.C.II --- 06/04.04.2024: Heard the parties. 2. Present writ petition has been filed by the petitioner(s) for quashing the order dated 12.09.2017 (Annexure-7 to the writ petition) whereby erroneously criminal case has been transferred by the Judicial Magistrate, 1st Class, Giridih in connection with Complaint Case No.185 of 2005 arising out of T.R. No.751 of 2017 to the Court of District and Additional Sessions Judge-I, Giridih. 3. 4. Aforesaid order has been challenged on the legal issue. It has been submitted by the counsel for the petitioners that as per the law existing today, the case can be tried by the Magistrate and for that purpose, he has relied upon following provisions of the Drugs and Cosmetics Act, 1940, which is quoted hereinbelow:- 18. Prohibition of manufacture and sale of certain drugs and cosmetics.— From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf— (a) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute— (i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious; (ii) any cosmetic which is not of a standard quality or is misbranded, adulterated or spurious; (iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true formula or list of active ingredients contained in it together with the quantities thereof; (iv) any drug which by means of any statement design or device accompanying it or by any other means, purports or claims [to prevent, cure or mitigate] any such disease or ailment, or to have any such other effect as may be prescribed; (v) any cosmetic containing any ingredient which may render it unsafe or harmful for use under the directions indicated or recommended; (vi) any drug or cosmetic in contravention of any of the provisions of this Chapter or any rule made thereunder; (b) sell, or stock or exhibit or offer for sale, or distribute any drug [or cosmetic] which has been imported or manufactured in contravention of any of the provisions of this Act or any rule made thereunder; (c) manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter: Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis: Provided further that the Central Government may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale or distribution of any drug or class of drugs not being of standard quality. 27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.—Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes— (a) any drug deemed to be adulterated under section 17A or spurious under section 17B and which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860) solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause: Provided further that where the use of the adulterated or, spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realised from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulterated or spurious drugs referred to in this clause. Explanation.—For the purposes of the second proviso, the expression “relative” means— (i) spouse of the deceased person; or (ii) a minor legitimate son, and unmarried legitimate daughter and a widowed mother; or (iii) parent of the minor victim; or …………………….. (b) any drug— (i) deemed to be adulterated under section 17A but not being a drug referred to in clause (a), or (ii) without a valid licence as required under clause (c) of section 18, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more: in the Provided that the Court may, for any adequate and special reasons to be recorded impose a sentence of judgment, imprisonment for a term of less than three years and of fine of less than one lakh rupees; (c) any drug deemed to be spurious under section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not less than seven years but which may extend to imprisonment for life and with fine which shall not be three lakh rupees or three times the value of the drugs confiscated, whichever is more: Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years but not less than three years and of fine of less than one lakh rupees; (d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees: Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year. -2- W.P.(Cr.) No.188 of 2018 with Cr Rev. No.768 of 2018 32. Cognizance of offences—(1) No prosecution under this Chapter shall be instituted except by— (a) an Inspector; or (b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government or by a general or special order made in this behalf by that Government; or (c) the person aggrieved; or (d) a recognised consumer association whether such person is a member of that association or not. (2) Save as otherwise provided in this Act, no court inferior to that of a Court of Session shall try an offence punishable under this Chapter. (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Chapter. 36A. Certain offences to be tried summarily.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), [all offences except the offences triable by the Special Court under section 36AB or Court of Session under this Act] punishable with imprisonment for a term not exceeding three years, other than an offence under clause (b) of sub- section (1) of section 33-I, shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial : Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year: Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness who has been examined and proceed to hear or rehear the case in the manner provided by the said Code. 36AB. Special Courts. — (1) The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences relating to adulterated drugs or spurious drugs and punishable under clauses (a) and (b) of section 13, sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and clause (b) of sub-section (1) of section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Session as a Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification. Explanation. —In this sub-section, “High Court” means the High Court of the State in which a Court of Session designated as Special Court was functioning immediately before such designation. (2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. 5. Referring to the above Sections and mixing with the fact, it has been submitted that these petitioners have been charged for the offence under Section 27 (b)(ii) of the Drugs and Cosmetics Act, 1940. The said offence is triable by the Magistrate only. It has been further submitted that maximum punishment -3- W.P.(Cr.) No.188 of 2018 with Cr Rev. No.768 of 2018 prescribed for the aforesaid Sections is three years imprisonment at relevant point of time in the year 2005. Subsequently, it has been enhanced, but that will not apply in the present case. 6. Counsel for the State has opposed the prayer of the petitioners by referring to the Para-17 of the counter affidavit which is quoted herein below:- “That it is stated that in reply to the statements made in para 17 and 18 of the writ application, it is stated that if Section 36 AB is taken in its totality then, it is evident that the special Court has full powers to try an offence other than the offence referred to in sub section (1), and as such it was rightly assessed to try this case by Learned Sessions Court and accordingly the same was transferred there.” 7. Law is settled, especially in the criminal law that procedure and punishment both are mandatory and it has to be followed as prescribed in law. In the present case, appropriate forum has been provided under the law:- (i) Special Court (ii) Sessions Judge (iii) Magistrate, depending upon the quantum of punishment and otherwise. 8. In the present case, the maximum punishment prescribed at relevant point of time in year 2005, was three years imprisonment. Thus, as per the Section 36(A) of the aforesaid Act, this has to be tried by the Magistrate. Since forum has been prescribed, it cannot be tried by different forum. The mandate of Section 36 (A) of the Act is clear and it has been given an overriding effect and it has been mandated that the offence for which maximum punishment is three years imprisonment, has to be tried by the Magistrate. 9. In view of the specific mandate of law, the impugned order dated 12.09.2017 is not sustainable in law and accordingly, it is, hereby, set aside and the matter is remitted back to the Court below for trial by the competent Magistrate afresh. 10. The concerned District Judge is directed to place the matter before the competent Magistrate for fresh trial. 11. Accordingly, this writ petition stands disposed of with the aforesaid observations. Cr. Rev. No.768 of 2018 In view of the order passed in W.P. (Cr) No. 188 of 2018, this criminal revision has become infructuous. Accordingly, it is hereby dismissed as infructuous. Ravi/- Uploaded (Rajesh Kumar, J.) -4- W.P.(Cr.) No.188 of 2018 with Cr Rev. No.768 of 2018