State of U.P. through Drugs Inspector District Hathras v. Mohit Agarwal), under Sections

1. Heard Sri Alok Singh, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the impugned summoning order dated 23.12.2022 passed by Learned Chief Judicial Magistrate, Hathras as well as the entire proceedings of Case No. 2422 of 2022 (State of U.P. through Drugs Inspector District Hathras Vs. Mohit Agarwal), under Sections 18(a)(vi), 18(C), 18-A and Section 27 (b) (II), 27 (d) & 28 of the Drugs and Cosmetics Act, Police Station- Hathras 1940, Gate, District-Hathras, pending in the court of Learned Chief Judicial Magistrate, Hathras.

3. The case of the applicant is that a complaint stood preferred by the Drug Inspector, Drugs and Cosmetics, District Hathras, O.P. No.2, on 29.11.2022 under Sections 18(c), 18-A, 18(a)(vi) and Section 27 (b) (ii), 28, 27 (d) of the Drugs and Cosmetics Act with an allegation that on 29.08.2021, an inspection was conducted in Max Forte Hospital at Bhagwantpur Hatisa Hathras and at the time of inspection, license was asked to be provided, however, neither the license nor any documents in that regard were submitted, pursuant whereto the medical store came to be sealed. Thereafter a communication was made on 05.04.2022 by one Shweta Agarwal, who happens to be the wife of applicant herein that the Max Forte Hospital is a valid hospital and there happens to be license. Applications also came to be preferred on 05.04.2022, 11.04.2022, 18.04.2022 and 21.04.2022 for opening of the seal of the medical store, which has been situated within the premises of Max Forte Hospital. On 21.04.2022, the Team appointed by the Sub- Divisional Magistrate, Hathras visited the spot and sent the samples for chemical analysis. Post lodging of the said complaint on 29.11.2022, on 23.12.2022 the applicant came to be summoned by the Chief Judicial Magistrate, Hathras in Complaint Case No.1311759/2022 under Sections 18(a)(vi), 18(c), 18-A and Section 27 (b) (II), 27 (d) & 28 of the Drugs and Cosmetics Act.

4. Questioning the same, the present application has been preferred.

5. Learned counsel for the applicant had made a sole submission that in view of the provisions contained under the Drugs and Cosmetics Act, 1940, the cognizance could not have been taken by the Chief Judicial Magistrate, Hathras, as it is only the Court of Sessions, who can try the offence punishable under the Act. In order to buttress the said submission, aid has been taken to Section 32 of the Drugs and Cosmetics Act, 1940. The submission is that the cognizance and the summoning of the order so passed by the CJM, Hathras is bereft of any authority and without jurisdiction and the entire proceeding stands vitiated.

6. Learned A.G.A. on the other hand submitted that the arguments so sought to be raised by the counsel for the applicant that only the Courts of Sessions has the authority and jurisdiction to take cognizance and summon the applicant is misconceived, particularly when Sub-Section (2) of Section 32 of the Drugs and Cosmetics Act only provides that no court inferior to that of a Court of Session shall try an offence punishable under this Chapter, meaning thereby that cognizance and summoning can be taken by the Court of CJM and post-committal of the case, it can only be tried by Court of Session as per Sub-Section (2) of Section 32 of the Act.

7. I have heard the submission so made across the Bar and perused the record carefully. Section 32 of the Drugs and Cosmetics Act reads as under: - "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 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."

8. A close reading of Section 32 shows that the same deals with cognizance of offences and Sub-Section (2) of Section 32 provides that no court inferior to that of a Court of Session shall try an offence punishable under this Chapter. Apparently, there is a marked difference between taking of cognizance/ summoning on one hand and trying of proceedings on the other hand. As a matter of fact, Section 193 of the CrPC reads as under:- "193. Cognizance of offences by Courts of Session.--Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

9. Section 213 of the BNSS 2023 also reads as under: - "213. Cognizance of offences by Court of Session.-- Except as otherwise expressly provided by this Sanhita or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Sanhita."

10. A conjoint reading of Section 193 CrPC and Section 213 of the BNSS would go to show that no courts shall take cognizance of any offence as a Court of Original Jurisdiction, unless the case has been committed to it by a Magistrate under the Act. Thus post- taking of cognizance and summoning, it is the jurisdictional Magistrate who has to commit the case to the Court of Sessions to try the proceedings. Without there being any committal of the case by the jurisdictional Magistrate to the Court of Sessions, the proceedings cannot be continued before the Court of Sessions. The aforesaid aspect came up for consideration in Union of India vs. Ashok Kumar Sharma and others, AIR 2020 SC 5274, wherein it was observed as under:- "40. ...It is to be noted that Section 32 declares that no court inferior to the Court of Sessions shall try offence punishable under Chapter IV. We have noticed that under Section 193 of the CrPC, no Court of Sessions can take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the CrPC. This is, undoubtedly, subject to the law providing expressly that that Court of Sessions may take cognizance of any offence as the Court of Original Jurisdiction. There is no provision in the Act which expressly authorises the special court which is the Court of Sessions to take cognizance of the offence under Chapter IV. This means that the provisions of Chapters XV and XVI of the CrPC must be followed in regard to even offences falling under Chapter IV of the Act. ..."

11. It is also not the case of the applicant or pleading that the Chief Judicial Magistrate, Hathras was not a jurisdictional Magistrate. Thus, the contentions so raised by the learned counsel for the applicant have no basis at all and are liable to be rejected. Since no other points except the point of jurisdiction has been raised, thus this Court does not find the present case to be a fit case for interference in proceedings under Section 528 of BNSS.

12. Resultantly, the application stands disposed of leaving it open for the applicant to raise all legal and factual issues while contesting the trial. Order Date :- 6.8.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

1. Heard Sri Alok Singh, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

2. This is an application under Section 528 of BNSS preferred by the applicant for quashing the impugned summoning order dated 23.12.2022 passed by Learned Chief Judicial Magistrate, Hathras as well as the entire proceedings of Case No. 2422 of 2022 (State of U.P. through Drugs Inspector District Hathras Vs. Mohit Agarwal), under Sections 18(a)(vi), 18(C), 18-A and Section 27 (b) (II), 27 (d) & 28 of the Drugs and Cosmetics Act, Police Station- Hathras 1940, Gate, District-Hathras, pending in the court of Learned Chief Judicial Magistrate, Hathras.

3. The case of the applicant is that a complaint stood preferred by the Drug Inspector, Drugs and Cosmetics, District Hathras, O.P. No.2, on 29.11.2022 under Sections 18(c), 18-A, 18(a)(vi) and Section 27 (b) (ii), 28, 27 (d) of the Drugs and Cosmetics Act with an allegation that on 29.08.2021, an inspection was conducted in Max Forte Hospital at Bhagwantpur Hatisa Hathras and at the time of inspection, license was asked to be provided, however, neither the license nor any documents in that regard were submitted, pursuant whereto the medical store came to be sealed. Thereafter a communication was made on 05.04.2022 by one Shweta Agarwal, who happens to be the wife of applicant herein that the Max Forte Hospital is a valid hospital and there happens to be license. Applications also came to be preferred on 05.04.2022, 11.04.2022, 18.04.2022 and 21.04.2022 for opening of the seal of the medical store, which has been situated within the premises of Max Forte Hospital. On 21.04.2022, the Team appointed by the Sub- Divisional Magistrate, Hathras visited the spot and sent the samples for chemical analysis. Post lodging of the said complaint on 29.11.2022, on 23.12.2022 the applicant came to be summoned by the Chief Judicial Magistrate, Hathras in Complaint Case No.1311759/2022 under Sections 18(a)(vi), 18(c), 18-A and Section 27 (b) (II), 27 (d) & 28 of the Drugs and Cosmetics Act.

4. Questioning the same, the present application has been preferred.

5. Learned counsel for the applicant had made a sole submission that in view of the provisions contained under the Drugs and Cosmetics Act, 1940, the cognizance could not have been taken by the Chief Judicial Magistrate, Hathras, as it is only the Court of Sessions, who can try the offence punishable under the Act. In order to buttress the said submission, aid has been taken to Section 32 of the Drugs and Cosmetics Act, 1940. The submission is that the cognizance and the summoning of the order so passed by the CJM, Hathras is bereft of any authority and without jurisdiction and the entire proceeding stands vitiated.

6. Learned A.G.A. on the other hand submitted that the arguments so sought to be raised by the counsel for the applicant that only the Courts of Sessions has the authority and jurisdiction to take cognizance and summon the applicant is misconceived, particularly when Sub-Section (2) of Section 32 of the Drugs and Cosmetics Act only provides that no court inferior to that of a Court of Session shall try an offence punishable under this Chapter, meaning thereby that cognizance and summoning can be taken by the Court of CJM and post-committal of the case, it can only be tried by Court of Session as per Sub-Section (2) of Section 32 of the Act.

7. I have heard the submission so made across the Bar and perused the record carefully. Section 32 of the Drugs and Cosmetics Act reads as under: - "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 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."

8. A close reading of Section 32 shows that the same deals with cognizance of offences and Sub-Section (2) of Section 32 provides that no court inferior to that of a Court of Session shall try an offence punishable under this Chapter. Apparently, there is a marked difference between taking of cognizance/ summoning on one hand and trying of proceedings on the other hand. As a matter of fact, Section 193 of the CrPC reads as under:- "193. Cognizance of offences by Courts of Session.--Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

9. Section 213 of the BNSS 2023 also reads as under: - "213. Cognizance of offences by Court of Session.-- Except as otherwise expressly provided by this Sanhita or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Sanhita."

10. A conjoint reading of Section 193 CrPC and Section 213 of the BNSS would go to show that no courts shall take cognizance of any offence as a Court of Original Jurisdiction, unless the case has been committed to it by a Magistrate under the Act. Thus post- taking of cognizance and summoning, it is the jurisdictional Magistrate who has to commit the case to the Court of Sessions to try the proceedings. Without there being any committal of the case by the jurisdictional Magistrate to the Court of Sessions, the proceedings cannot be continued before the Court of Sessions. The aforesaid aspect came up for consideration in Union of India vs. Ashok Kumar Sharma and others, AIR 2020 SC 5274, wherein it was observed as under:- "40. ...It is to be noted that Section 32 declares that no court inferior to the Court of Sessions shall try offence punishable under Chapter IV. We have noticed that under Section 193 of the CrPC, no Court of Sessions can take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the CrPC. This is, undoubtedly, subject to the law providing expressly that that Court of Sessions may take cognizance of any offence as the Court of Original Jurisdiction. There is no provision in the Act which expressly authorises the special court which is the Court of Sessions to take cognizance of the offence under Chapter IV. This means that the provisions of Chapters XV and XVI of the CrPC must be followed in regard to even offences falling under Chapter IV of the Act. ..."

11. It is also not the case of the applicant or pleading that the Chief Judicial Magistrate, Hathras was not a jurisdictional Magistrate. Thus, the contentions so raised by the learned counsel for the applicant have no basis at all and are liable to be rejected. Since no other points except the point of jurisdiction has been raised, thus this Court does not find the present case to be a fit case for interference in proceedings under Section 528 of BNSS.

12. Resultantly, the application stands disposed of leaving it open for the applicant to raise all legal and factual issues while contesting the trial. Order Date :- 6.8.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad