Bombay HC : Sessions Court Cannot Take Cognisance Of Offences Under Drugs & Cosmetics Act Without Committal of case By Magistrate

 In regard to the action of the learned Special Judge of taking cognizance of the offence directly, there appears substance in the submission of Mr. Bhasin. {Para 40}

41. Section 32 of the Drugs Act, 1940 provides for cognizance of offences. Sub-Section (2) of Section 32 provides that, save as otherwise provided in that Act, no court inferior to that of a Court of Session shall try an offence punishable under Chapter IV. Section 193 of the Code of Criminal Procedure, 1973, contains an interdict against the Court of Sessions taking cognizance of any offence as Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code, except as otherwise expressly provided by that Code or by any other law for the time being force.

Evidently, though sub-Section (2) of Section 32 begins with an inbuilt saving clause in the form of expression, “save as otherwise provided in this Act” yet, there is no provision in the Drugs Act 1940 which expressly provides for the Court of Session taking the cognizance of the offence punishable under the said Act directly. Nor Section 32(2) contains the usual expression, “notwithstanding anything contained in the Code of Criminal Procedure, 1973”, employed by the legislature where the Court of Session is empowered to take cognizance of the offences under the special enactments, without the case having been committed to it by a Magistrate.

42. What sub-Section (2) of Section 32 essentially provides is that, the trial of an offence under Chapter IV of the Drugs Act 1940 shall be before a Court not inferior to that of the Court of Session. The necessary corollary flowing from Section 4 of the Code, is that the rest of the provisions in the Code in regard to taking of the cognizance of the offence, inclusive of the interdict contained in Section 193 of the Code against the Court of Session taking cognizance of the offence directly, are clearly attracted.

43. Mr. Singh, the learned Special Counsel for the Respondent, attempted to wriggle out of the situation by canvassing a submission that the Administrator of the U.T. of Damand and Diu And Dadra and Nagar Haveli, has published Notification to designate the “Principal District Judge”, Daman and Diu and Dadra and Nagar Haveli at Silvassa as Special Court and empowered him to try the case under the Drugs Act, 1940 and the Code of Criminal Procedure, 1973, for the area of UT of Daman And Diu And Dadra And Nagar Haveli. The said Notification, according to Mr. Singh, constitutes the saving envisaged by the expression, “save as otherwise provided” contained in sub-Section (2) of Section 32.

44. I find it difficult to accede to the aforesaid submission. I have perused the said Notification dated 17th June 2010. It is issued under Section 36AB(1) of the Drugs Act 1940 which came to be inserted by Act No. 26 of 2008, to provide for designation of one or more Special Courts for trial of offence 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.

45. In the case at hand, the complaint is lodged for the commission of an offence punishable under Section 27(d) of the Drugs Act, 1940. Secondly, the said Notification even if the submission on behalf of the Respondent is taken at par, would not empower the Court of Session to directly take the cognizance of the offence as there is no provision in the Drugs Act, 1940 which provides for taking of cognizance of offence by the Court of Session directly.

46. A useful reference in this context can be made to the judgment of the Supreme Court in the case of Union of India V/s. Ashok Kumar sharma and Ors. (2021) 12 SCC 674, wherein the Supreme Court expounded the law, as under :

“49. Section 32 of the Act undoubtedly provides for taking

cognizance of the offence by the court only at the instance of the

four categories mentioned therein. They are: (a) Inspector under the Act; (b) Any Gazetted Officer empowered by the Central or the State Government; (c) Aggrieved person; and (d) Voluntary Association. It is clear that the Legislature has not included the Police Officer as a person who can move the court. Before the matter reaches the court, under Section 190 of the CrPC, ordinarily starting with the lodging of the first information report leading to the registration of the first information report, investigation is carried out culminating in a report under Section 173. The Police Report, in fact, is the Report submitted under Section 173 of the CrPC to the court. Under Section 190 of the CrPC, the court may take cognizance on the basis of the police report. Such a procedure is alien to Section 32 of the Act. In other words, it is not open to the Police Officer to submit a report under Section 173 of the CrPC in regard to an offence under Chapter IV of the Act under Section 32. In regard to offences contemplated under Section 32(3), the Police Officer may have power as per the concerned provisions. Being a special enactment, the manner of dealing with the offences under the Act, would be governed by the provisions of the Act. 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. Starting with Section 200 of the Act dealing with taking of cognizance by a Magistrate on a complaint, including examination of the witnesses produced by the complainant, the dismissal of an unworthy complaint under Section 203 and following the procedure under Section 202 in the case of postponement of issue of process are all steps to be followed. It is true that when the complaint under Section 32 is filed either by the Inspector or by the Authorised Gazetted Officer being public servants under Section 200, the Magistrate is exempted from examining the complainant and witnesses.”

(emphasis supplied)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.2777 OF 2024

M/s. C.B.Healthcare and Ors. Vs  Union of India 

CORAM: N.J.JAMADAR, J.

PRONOUNCED ON : 24 MARCH 2026

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What is duty of Magistrate before passing order of issue process against accused who is resident of area beyond his jurisdiction?

 However, regarding non-compliance of Section 202 of the

Code of Criminal Procedure while issuance of process, there is

substance in the contention of learned counsel for the applicants

that the provisions of Section 202 of the Code of Criminal Procedure are mandatory in nature and ought to have been complied in this case. Perusal of title of the complaint demonstrates that accused persons were residents of the place which was beyond the jurisdiction of the learned Magistrate. In such circumstances, it was not open for the learned Magistrate to issue process against them without conducting an enquiry or calling upon the concerned police to conduct enquiry. Since the accused were not residing within the jurisdiction of the Court, it was obligatory on the part of the learned Magistrate to postpone issuance of process against those accused till such enquiry is conducted. It is also brought to the notice of the Court that order passed by the learned Magistrate is not reasoned order. Needless to say that order of issuance of process need not be a detailed order however, it should reflect that the learned Magistrate has applied mind. In both cases, it would not be open for this Court

to quash the complaint but the complaint needs to be relegated back to Trial Court for issuance of process afresh.{Para 6}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 851 OF 2023

Vikram Ambalal Vakil & others Vs The State of Maharashtra 

CORAM : R. M. JOSHI, J.

DATE : 21st AUGUST, 2023.

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Can a drug retailer escape liability U/S 27 of the Drugs and Cosmetics Act if they obtained a spurious drug from a licensed dealer?

As already noted, this petition has been filed by the retailer, in whose shop the sample of the subject drug was collected. The contention of the petitioner is that it is a case of "spurious drug" and as such, the petitioner could not have been prosecuted as he had obtained the subject drug from the licensed dealer. {Para 14}

 

15. Whether it is a case of spurious drug or sub-standard quality drug, the retailer cannot escape his liability merely because he has obtained the same from a licensed dealer. Section 27 of the Act clearly provides that any person, who manufacturers for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes any drug, deemed to be spurious drug under section 17B of the Act, is liable to punishment. There is material on record as also a specific allegation in the impugned complaint that the petitioner had stored the drug in question and exhibited it for sale in his shop and the said drug was found to be spurious in nature. Once there is material on record to support this allegation, it cannot be stated that no offence is made out against the petitioner.

16. It is contended by the petitioner that he has obtained the subject drug from a licensed dealer and there was nothing on record to show that he had not property stored it. Thus, no offence is made against him.

17. In the above context, it is to be noted that Section 19 (3) of the Act provides that a person other than the manufacturer of a drug, cannot be prosecuted if he shows that he has acquired the drug from a duly licensed manufacturer, distributor or dealer and that he did not know and could not, with reasonable diligence, ascertain contravention of the provisions of the section and further that the drug or the cosmetic was properly stored and remained in the same state as, when he acquired it. The burden to prove the aforesaid three conditions would always be upon the concerned dealer.

18. In the instant case, there is nothing on record to show that while the drug was in possession of the petitioner, Khalid Bhashir, it was properly stored and remained in the same state as when he acquired it. These are the facts, which have to be established by the petitioner during the course of the trial. From the material on record of the trial court, there is nothing to suggest that the petitioner had complied with the aforesaid conditions.

19. In view of the above, the prosecution as against the petitioner cannot be scuttled at this stage particularly when there is material on record regarding his complicity in the matter.

 IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU

CRMC No. 396/2018 and CRM (M) No. 93/2021 (O&M)

Decided On: 09.02.2023

Sundaram Surgicals and Ors.  Vs.  Drugs Inspector Doda and Ors.

Hon'ble Judges/Coram: Sanjay Dhar, J.

Citation: MANU/JK/0057/2023

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Can a person be convicted U/S 27 of the Drugs and Cosmetics Act if the prosecution fails to prove that the medicine in their possession was for sale?

 The possession of the drugs is not disputed in this case by either side. However, this Court in the case of Mohd. Shabir v. State of Maharashtra MANU/SC/0182/1979 : (1979) 1 SCC 568 while allowing an appeal in part and directing the release of an Appellant who had been prosecuted under the provision 18(c) of the 1940 Act, this Court observed that possession simpliciter would not itself be an offence but the prosecution had to prove the essential ingredient Under Section 27 which was that even a 'stock' of the medicine was for sale. It was observed as follows:

4. ...We, therefore, hold that before a person can be liable for prosecution or conviction Under Section 27(a)(i)(ii) read with Section 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of Section 27 are not satisfied the plea of guilty cannot lead the Court to convict the Appellant. {Para 15}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 804 of 2023.

Decided On: 15.03.2023

 S. Athilakshmi  Vs. The State Rep. by the Drugs Inspector

Hon'ble Judges/Coram:

Krishna Murari and Sudhanshu Dhulia, JJ.

Author: Sudhanshu Dhulia, J.

Citation: MANU/SC/0239/2023

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Is the Central Drugs Laboratory report conclusive against a manufacturer if they did not have the opportunity to get the sample re-analyzed?

 From the foregoing analysis of law on the subject, it is clear that while a manufacturer has a valuable right of getting the sample re-tested/re-analyzed by the Central Drugs Laboratory so as to adduce evidence in controversion of the report of the Government Analyst but once the sample has been tested by the Central Drugs Laboratory, there is no occasion for sending the sample again for testing to the same laboratory. It has been further laid down by the Supreme Court in the aforequoted judgment, that the conclusiveness meant in Section 25(3) of the Act has reference to the person referred to in the said subsection, meaning thereby that the facts stated in the report of the Government Analyst would become conclusive only against the person who despite having been provided a copy of the report, has failed to notify his intention to adduce evidence regarding facts stated therein within a period of 28 days. This conclusiveness of the facts stated in the report would not come into play in a case where the manufacturer or any other person has either not been provided the copy of the report or where such manufacturer or person had no occasion to notify his intention to adduce evidence in controversion of the report. In view of the above, the question whether in a particular case, conclusiveness is to be attached to the report of the Central Drugs Laboratory and whether valuable right of a manufacturer to adduce evidence in controversion of the report would get violated in a particular case depends upon the facts and circumstances peculiar to that case. {Para 16}

17. In case, like the present one, the manufacturers/petitioners were not provided the copy of the report of the CDL, Kolkata, or if at all the same was provided, the petitioners/manufacturers could not ask for reanalysis of the sample as the same had already been tested by Central Drugs Laboratory. Therefore, the report would not be conclusive against the petitioners. The petitioners would be at liberty to adduce evidence in controversion of the said report before the trial court. In these circumstances no prejudice has been caused to the petitioners even if the complaint has been filed when the shelf life of the drug in question was due to expire or because in the circumstances explained hereinbefore, they could not seek reanalysis of the sample of the drug in question. The report of the CDL, Kolkata, as already stated, in the facts and circumstances of the case is not conclusive against the petitioners and they have a right to controvert the same by leading evidence before the trial court. 

 IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR

CRMC No. 169/2016

Decided On: 01.11.2022

Swiss Garnier Life Sciences and Ors.  Vs. Union of India

Hon'ble Judges/Coram:

Sanjay Dhar, J.

Citation: MANU/JK/1186/2022

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Whether Drug Manufacturer Can Be Held Liable For Not Meeting Standards Prescribed After Date Of Manufacture?

The undisputed facts are that the alleged drug was manufactured on 01.10.2004. On that date no standard was prescribed. On 06.10.2005 a notification came to be issued wherein for the first time a standard was prescribed by the Food and Drug Administration, Maharashtra State. The sample was collected on 03.06.2005. It was sent for analysis on 04.06.2005. The analyst prepared report on 08.09.2005. The complaint was filed on 04.01.2006 and order of issuance of process was passed on 16.01.2006. {Para 8}

13. Next question that would fall for consideration is that in this case it is admitted fact that the drug was manufactured on 01.10.2004 having expiry period of three years. On the date of manufacture, there was no standard prescribed by Food and Drugs Administration, Maharashtra State. Vide notification dated 06.10.2005 the Ministry of Health and Family Welfare issued notification prescribing standard for the sterile devices intended for external or internal use in human beings as drugs with immediate effect, in which at Sr. No. (viii) present drug is mentioned. Thus, at least when the drug was manufactured, there was no standard prescribed by the State of Maharashtra for the said drug and certainly therefore manufacturer cannot be held responsible. This Court, therefore finds that prosecuting manufacturer would be clearly an abuse of process of law as a person cannot be held guilty for the act done prior to notification prescribing standard.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 912 of 2022

Decided On: 31.03.2023

Kirti Kumar Jayantilal Patel and Ors.  Vs. State of Maharashtra

Hon'ble Judges/Coram:

Kishore C. Sant, J.

Citation: MANU/MH/1218/2023,2023 Lawweb (Bom HC ) 17.

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Whether directors of a Company can escape liability under The Drugs and Cosmetics Act on the ground that they were not involved in the production of Drugs?

More particularly, the principle laid down in Section 141 of the NI Act (which is pari materia with identical sections in other Acts like the Food Safety and Standards Act, 2006; the erstwhile Prevention of Food Adulteration Act, 1954; etc.) is susceptible to abuse by unscrupulous companies to the detriment of unsuspecting third parties."

17. The interpretation of the expressions used in Section 141 of N.I Act, cannot be applied to Section 34 of Drugs and Cosmetics Act, though if read in isolation look in pari materia. When the offences are not cognate and enabling section to prosecute the Company a juristic body, has to be necessarily read along with the offence charged. Applying the interpretation of Section 141 of N.I Act to the other Acts ignoring the nature of the offence charged will lead to miscarriage of justice.

24. The offences and the offenders in the case of this nature is manufacturing and distribution of sub-standard drugs by a Company which is managed by its Board of Directors. The decision to manufacture the drugs is the collective decision of the Board of Directors. Therefore, the Directors cannot claim that they are not directly involved in the product of the drugs, when the decision to produce the drugs itself is the outcome of their decision. Therefore, the case of Directors signing the cheque on behalf the Company and the case of Directors participating in the decision to produce sub-standard drugs are not one and the same to hold that these petitioners are not involved in day-to-day affairs of the Company.

25. This Court, on considering the facts of the case in the light of the judgments discussed above holds that the contention of the petitioners is wholly unsustainable. If the said preposition is accepted it will go against the object and reasons of the legislations namely Drugs and Cosmetics Act.

IN THE HIGH COURT OF MADRAS

Crl. O.P. No. 11184 of 2019 and Crl. M.P. No. 5726 of 2019

Decided On: 12.10.2022

Vikas Rambal and Ors.  Vs. The State

Hon'ble Judges/Coram:

Dr. G. Jayachandran, J.

Citation: MANU/TN/7622/2022

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Can the Session court take cognizance of the offence as per S 32(2) of the Drugs and Cosmetics Act even though the said case is not committed to it?

 In 'The Act of 1940', no where expressly or by necessary implication provides that either the Special Court can take cognizance without the case being committed to it by the competent Magistrate, nor any such provisions is there in 'The Act of 1940' that the Magistrate or for that matter, Chief Judicial Magistrate has no jurisdiction to take cognizance and to pass a committal order. {Para 10}

11. Section 193 of 'The Code', which deals with cognizance of offence by Court of Sessions and is relevant for the present discussions runs 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."

12. Section 193 (Supra) provides, in no uncertain terms, that a Court of Sessions will not take cognizance of an offence as a Court of original jurisdiction, unless the case has been committed to it, except otherwise expressly provided in that regard.

13. Hon'ble the Apex Court, while considering Section 14 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as it stood prior to amendment of 2015), in the context of taking cognizance by the Special Court constituted under that Act had an occasion to consider the ambit and scope of Section 193 of 'The Code' Relevant observations made in this regard, which are apposite here and cover the controversy at hand, run as under:

"Section 14 of the Act says that "for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Sessions to be a Special Court to try the offences under this Act". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as. "every inquiry, other than trial, conducted under this Code by a Magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14", [vide S. 2(1)(d)] Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for 'Trial before a Court of Session'."

"Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a Magistrate", as provided in the Code, Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate."

14. Here it is noticeable that Section 5 of the Prevention of Corruption Act, 1988 specifically provides that special Judge under the Act can take cognizance of offence(s) without the accused being committed to him for trial.

15. Likewise, under the SC/ST (PA) Act, 1989 (prior to amendment by Amending Act of 2015), a case triable by Special Court constituted under Section 14 of this Act was required to be committed to the Special Court as held by the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra). After the amendment of 2015, a provision has been added in Section 14 of SC/ST (PA) Act, 1989, conferring power on the Special Court to take cognizance of the case without the same being committed to it for trial. A provision identical to one in Sec. 5 of the Prevention of Corruption Act, 1988 or Sec. 14 of the SC/ST (PA) Act, 1989 is not there in 'The Act of 1940', therefore, Special Court, constituted under this Act, which is a Sessions Court, cannot take cognizance without the accused being committed to it for trial.

16. In view of Section 193 of 'The Code' as interpreted by Hon'ble the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra), the cases (supra) relied upon by the learned counsel for the petitioner have no application in the present case. The special Court constituted under 'The Act of 1940' cannot take direct cognizance, because no enabling provision is there in 'The Act of 1940' in that regard, hence, no fault can be found with the order passed by the learned Chief Judicial Magistrate, committing the case to the special Court. Therefore, the impugned order of for that matter the order passed by the learned Chief Judicial Magistrate does not suffer from any illegality. In view of the aforesaid, this petition having no force deserves to be and is accordingly dismissed.

 IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

M. Cri. C. No. 11940 of 2016

Decided On: 10.01.2017

 Kalptaru Medicose  Vs.  Food and Drug Administration

Hon'ble Judges/Coram:

Ved Prakash Sharma, J.

Citation: MANU/MP/0133/2017,2017(1)Drugs cases (DC)204

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Whether Magistrate should commit cases under Drugs and Cosmetics Act after amendment of said Act effective from 10-8-2009?

  In this case, on 10.8.2009, the sample was taken by the respondent,

who is a Drug Inspector of the State and on 22.3.2005 the case was instituted against the petitioners herein. They appeared on 29.8.2007 and the amendment to Section 32 of the Drugs and Cosmetics Act, 1940 came into effect from 10.8.2009 according to which the offences under the said Act would only be tried by a Court, not inferior to that of a Court of Sessions. However, in ignorance of the said amendment, the learned Court of J.M.F.C. framed charges on 8.12.2009 for offences U/s.18(a)(i) read with Section 17 and 27 of the Drugs and Cosmetic Act, 1940. In this case, the question involved is not the retrospective application of the amendment, but the continuation of the case before the Court of learned Judicial Magistrate First Class after the amendment came into force at which point of time, even the charges were not framed by the Court of the Ld. JMFC. The framing of the charge by the Court of learned J.M.F.C. on 8.12.2009 itself was rendered illegal on account of the amendment having come into force on 10.8.2009 itself. Therefore, all the proceedings before the Ld. JMFC after 10.8.2009, on which date even the charges were not framed by the Court of learned J.M.F.C., were rendered bad in the eyes of law.

Under the circumstances, the impugned order cannot be faulted, as all proceedings from the stage of framing charges onwards had no sanction under the law. Therefore, this petition is disposed of by sustaining the impugned order of committal of the case to the Court of Sessions but as the evidence taken before the Court of learned J.M.F.C. was done much after the amendment came into force and the charges were framed after the coming into force of the amendment, all proceedings before the Court below commencing from the framing of charges are struck down and the trial will commence denovo before the learned Court of Sessions from the stage of framing charges after giving an opportunity to both the petitioners and the prosecution to address the Court on the issue of framing charges.

Madhya Pradesh High Court

M/S Jayram Pharmaceauticals Pvt. ... vs The State Of Madhya Pradesh on 20 July, 2017

                            MCRC-7419-2017
   

         The present petition has been filed invoking the jurisdiction of this

Court under Section 482 of Cr.P.C. by the petitioners being aggrieved by the

impugned order dated 17.1.2017 (Annex.A/3) passed by the learned Judicial

Magistrate First Class, Bhopal in R.T. No.2307/2005 whereby he is stated to

have erroneously committed the case to the learned Court of Sessions on the

basis of a retrospective application of the amendment to Section 32 of the

Drugs and Cosmetics Act, 1940, which was done 12 years after the institution

of the case and also after recording the evidence of all the material

prosecution witnesses who are 4 in number.

         Learned counsel for the petitioners has relied upon the judgment

passed by this Court in Dwarka Prasad Vs. State of M.P., decided on

30.3.2016 in M.Cr.C. No.11246/2014 by which this Court has held in para 24

that the trial of the case may be said to be in advanced stage where a material

witness/ witnesses have been examined on behalf of the prosecution. This

Court further held that it is not so much the number of the witnesses examined

by the prosecution, but the nature of the evidence given by such

witness/witnesses which would have to be seen. It also held that in a given

case where witnesses examined on behalf of the prosecution may not have

deposed to the essential part of the prosecution case or where such evidence

may be formal in character, the case may not be said to be at the advanced

stage of trial. Learned counsel for the petitioners has relied heavily upon this

judgment. This judgment was passed while examining the amendment in the

Cr.P.C. whereby offences U/s.467, 468 inter-alia, which were earlier triable by
 the Court of Magistrate, were made triable after the amendment by the Court

of Sessions. In the case examined in Dwarka Prasad (supra), the Court was

concerned with the stage at which the case was after the amendment came

into force. However, in the instant case, on factual aspects, there is a

difference.

         In this case, on 10.8.2009, the sample was taken by the respondent,

who is a Drug Inspector of the State and on 22.3.2005 the case was instituted against the petitioners herein. They appeared on 29.8.2007 and the amendment to Section 32 of the Drugs and Cosmetics Act, 1940 came into effect from 10.8.2009 according to which the offences under the said Act would only be tried by a Court, not inferior to that of a Court of Sessions. However, in ignorance of the said amendment, the learned Court of J.M.F.C. framed charges on 8.12.2009 for offences U/s.18(a)(i) read with Section 17 and 27 of the Drugs and Cosmetic Act, 1940. In this case, the question involved is not the retrospective application of the amendment, but the continuation of the case before the Court of learned Judicial Magistrate First Class after the amendment came into force at which point of time, even the charges were not framed by the Court of the Ld. JMFC. The framing of the charge by the Court of learned J.M.F.C. on 8.12.2009 itself was rendered illegal on account of the amendment having come into force on 10.8.2009 itself. Therefore, all the proceedings before the Ld. JMFC after 10.8.2009, on which date even the charges were not framed by the Court of learned J.M.F.C., were rendered bad in the eyes of law.

Under the circumstances, the impugned order cannot be faulted, as all proceedings from the stage of framing charges onwards had no sanction under the law. Therefore, this petition is disposed of by sustaining the impugned order of committal of the case to the Court of Sessions but as the evidence taken before the Court of learned J.M.F.C. was done much after the amendment came into force and the charges were framed after the coming into force of the amendment, all proceedings before the Court below commencing from the framing of charges are struck down and the trial will commence denovo before the learned Court of Sessions from the stage of framing charges after giving an opportunity to both the petitioners and the prosecution to address the Court on the issue of framing charges.

With these directions, the petition is disposed of. C.C. as per rules.

(ATUL SREEDHARAN) JUDGE a

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Supreme Court: Precaution which Magistrate should take before issue of process against accused

A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. {Para 52}

53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said Accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the Accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.

29. A similar view has been taken by this Court in the case of Ashoke Mal Bafna (supra).

30. In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as a matter of fact, it is clear from the order of the learned Single Judge of the High Court, that there was no such order passed at all. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. We find that such an approach is unsustainable in law. The appeal therefore deserves to be allowed.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1757 of 2022.

Decided On: 11.10.2022

Lalankumar Singh and Ors.  Vs.  State of Maharashtra

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: B.R. Gavai, J.

Citation: MANU/SC/1301/2022

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Can Court implead Manufacturer as per S 32A of Drugs and Cosmetics Act before commencement of trial?

 In order to test the merits of this contention, we need to notice the provisions contained in Section 32A of the Drugs and Cosmetics Act which vests power with the court to implead manufacturer etc. as an accused. It reads as under:

32A. Power of Court to implead the manufacturer, etc.—Where, at any time during the trial of any offence under this Chapter alleged to have been committed by any person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof the Court is satisfied, on the evidence adduced before it, that such manufacturer or agent is also concerned in that offence, then, the Court may, notwithstanding anything contained 3 [in sub-sections (1), (2) and (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974)], proceed against him as though a prosecution had been instituted against him under section 32. {Para 7}

8) From a perusal of the aforesaid provision, it is clear that for impleading a manufacturer or some other person as an accused, the court has to be satisfied on the basis of the evidence adduced before it that such person is also concerned in that offence. The provision clearly indicates that the impleadment of an additional accused can be resorted to only during the trial of the offence and the satisfaction about the involvement of such additional accused has to be based on the evidence that has been adduced during the trial.

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

Pronounced on:24.08.2022

CRMC No.272/2017

RISHI SHARMA DIRECTOR HAUSTUS

BIOTECH PRIVATE LIMITED  Vs. BILAL AHMAD RATHER, DRUGS INSPECTOR 

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

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Whether court should acquit an accused of an offence under the Drugs and Cosmetics Act if the appointment of the Public analyst is not notified in the Government Gazette?

 It is settled law as relied upon in R.A. Chandawarkar (supra) that publishing it in Government Gazette is not just a mere formality. The object of publication in an Official Gazette is two fold: to give publicity to the notification and further to provide authenticity to the contents of that notification in case some dispute arises with regard to the contents. Ms. Malhotra fairly conceded that there is Gazette Notification only of Exhibit 96 and not of Exhibit 94. In my view, the facts of the present case squarely falls within the four corners of the facts in R.A. Chandawarkar (Supra).

{Para 11}

12. Therefore, the State Government not having published in the Official Gazette, the appointment of Dr. Prabhakar Pilankar, specifying the area wherein he can operate and also specifying therein the products with which Dr. Pilankar can test and analyze, it is difficult to ascertain, as to who exactly will be the Government Analyst and for which area and for which products. Therefore, the only conclusion could be that Dr. Prabhakar Pilankar was not appointed as Government Analyst validly and properly as per the provisions of Section 20 of the said Act.

13. In view thereof, the report or opinion of Dr. Prabhakar Pilankar cannot be relied upon or used by the Government to prosecute respondents.

In the High Court of Bombay

(Before K.R. Shriram, J.)

State of Maharashtra  Vs  Laxmichand Nagaji Jain 

Criminal Appeal No. 1036 of 2002

Decided on January 13, 2020

Citation: 2020 SCC OnLine Bom 64 : (2020) 1 AIR Bom R (Cri) 628

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Supreme Court: Police officer can not register offence, arrest accused and investigate the case under the Drugs and Cosmetics Act

THE CONCLUSIONS/DIRECTIONS

150. Thus, we may cull out our conclusions/directions as follows:

I. In regard to cognizable offences under Chapter IV of the Act, in view of Section 32 of the Act and also the scheme of the Code of Criminal Procedure, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in Section 32 are entitled to do the same.

II. There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated Under Section 32(3) of the Act, i.e., if he has committed any cognizable offence under any other law.

III. Having regard to the scheme of the Code of Criminal Procedure and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR Under Section 154 of the Code of Criminal Procedure, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the Code of Criminal Procedure.

IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of Code of Criminal Procedure.

V. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act. We find substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power Under Article 142 of the Constitution of India in this regard.

VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment.

VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the Code of Criminal Procedure, but also immediately report the arrests to their superior Officers.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 200 of 2020 

Decided On: 28.08.2020

 Union of India (UOI)  Vs. Ashok Kumar Sharma and Ors.

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Whether police can file chargesheet if a person is selling medicine without licence?

From the above provisions, it is clear that the cognizance of the offences punishable under Chapter IV of the Act, which includes the offence under Section 27(b)(ii), cannot be taken on the basis of the chargesheet filed by the police under section 173 of the Code of Criminal Procedure.

15. Indisputably, the cognizance of the offence punishable under section 27(b)(ii) of the Act alleged to have been committed by the petitioner has not been taken by the learned Judicial Magistrate, First Class on the basis of the complaint as defined under section 2(d) of the Code of Criminal Procedure, 1973, filed by respondent No. 2 - the Drugs Inspector. Consequently, the cognizance of the said offence taken on the basis of the chargesheet filed by the police officer cannot be said to be legal. The learned Judicial Magistrate First Class had no jurisdiction to take cognizance of the said offence against the petitioner on the basis of the chargesheet filed by the police officer ignoring the provisions of section 32 of the Act.

In the High Court of Bombay at Aurangabad

(Before S.S. Shinde and Sangitrao S. Patil, JJ.)

Rajendra s/o Madhav Pate,

v.

State of Maharashtra, th

Criminal Writ Petition No. 846 of 2016

Decided on October 10, 2016

Citation:2016 SCC ONLINE Bom 8901

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When offence under Drugs and cosmetics Act is not made out?

On the contrary, it is submitted by Shri Lotlikar, the
learned Senior Counsel for the respondents that the scope of the
interference in an appeal against acquittal is limited. It is
submitted that unless and until the finding recorded by the
Magistrate is found to be either perverse or based on no evidence
or reached on a gross misappreciation of the evidence, no
interference is called for. It is submitted that the view taken by
the Magistrate is a plausible view. It is next submitted that the
prosecution witnesses have admitted that the medicine was
susceptible to changes in temperature, humidity as also light.
Thus, acceptable evidence about the medicine having been stored
in proper storage conditions was necessary. It is submitted that 
PW1 has admitted that the medicine was stored at room
temperature and thus, it is not possible to hold that the medicine
was stored under standard conditions. It is submitted that the
Drugs Consultative Committee (DCC) set up under Section 7 of the
Act has prescribed the standard procedure for analysis of the
pharmaceuticals preparations. The learned Magistrate has relied
upon Item No.7 of the guidelines in the minutes of meeting dated
24th and 25th June, 1974, in order to hold that it was necessary to
analyse the sample in relation to the manufacture's standards,
which were registered with the concerned Drug Controller,
Karnataka. That admittedly having not done, the prosecution
cannot rely on the evidence of the analyst. He, therefore,
submitted that the appeal is without any merit.
 On hearing the learned Counsel for the parties and on
perusal of the record, I do not find that any case for interference is
made out. In the present case, admittedly, the respondents are
the manufacturers of the drug 'caryrox', which is a patent and
proprietary medicine. It is further an admitted position that
'caryrox' is a suspension of the generic drug 'Roxithromicin'. It is
further undisputed that each 5 ml of the medicine was to contain
50 mg of 'Roxythromicin B.P.' It is also an admitted position that
the said product does not find place in Indian Pharmacopeia, but is 
a medicine listed in British Pharmacopeia (BP). The instructions
mentioned as to storage are that the medicine is to be stored in a
'cool place', protected from light. It is further undisputed that the
manufacturing date of the product is July 2002 and the expiry date
was June 2004. A perusal of the Note 1 to Schedule P of the
Rules, would show that the term 'cool place' means a place having
temperature between 10oc and 25oc . Thus, it can be seen that the
standard storage conditions as to temperature for the said product
require that it should be stored at a temperature between 10oc
and 25oc . PW1 Jyoti Sardessai, who is a material witness, has
stated in the cross-examination that at the time of visit to the
premises of M/s. Matrix Pharma, she had not taken any gadget,
instrument or machine for the purpose of taking reading and
measurements pertaining to the temperature, humidity, etc. She
has also admitted that the premises, where the drug was stored,
was not air-conditioned. She could not say what was the
temperature at the premises of M/s Matrix Pharma at the time of
her visit, although she volunteered that it was cool. She then
stated that the average temperature in Goa specially in the month
of June and July ranges from 23 to 32oc and at times goes upto
34oc. She has further admitted that the exposure to heat has a
detrimental effect on the stability of pharmaceutical products and
medicines. It was stated that with every 10 degrees rise in the 
temperature, there is possibility of 2 to 3 fold increase in
degradation rates of the drugs. She has stated that in respect of
the drugs, which are sensitive to heat, there is possibility of such
variation.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 14 of 2014
State of Goa,
At the instance of
Mrs. Jyoti Sardessai (Major)
Director of Food and Drugs
Administration,


V/s
 M/s Caryl Pharma

CORAM :- C. V. BHADANG, J.
Date :- 22ndJuly , 2015.
Citation;2016 CRLJ(NOC)54 BOM

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Procedure to be followed by session Judge if case for offence U/S 27 of Drugs and cosmetics Act is committed to him?

 Now coming to the complaint filed and cognizance taken by the magistrate is under Section 27 of the Act. The complainant in filing the complaint did not speak whether the offence comes under Sections 27(a) and 27(c) or Sections 27(b) and 27(d) or any of the specific provisions among Section 27(a) to Section 27(d). The learned Magistrate also in the committal order did not speak the same. The learned Sessions Judge after taking cognizance under Section 193 Cr.P.C. at post committal stage in passing the impugned order after hearing of parties also, for the reason no one brought to its notice, did not advert to it.

Having regard to the above, it is a fit case to remit the matter back to the learned Sessions Judge for further hearing and pass an order as to the case whether comes under Section 27(a)or Section 27(c) or both for retaining by him as a Special Court being Court of Sessions from the committal made and cognizance under Section 193 Cr.P.C. taken, if not and if comes underSection 27(b) or 27(d) or both, to send back to the magistrate within his power under Section 228Cr.P.C. while framing charge as triable by magistrate under Section 228(1)(a) Cr.P.C.

Andhra High Court

M/S. Gaba Pharmaceuticals ... vs Union Of India, Rep. By Drugs ... on 14 August, 2015

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When it is not necessary for Magistrate to commit case of drug and cosmetics Act to session court?

The above view is further supported by the decision reported in Udayadivakaran v. State of Kerala [2012 (3) KLT 940]. In the above decision, this Court held that "other than the offences referred to in S.36AB of the Act, which are exclusively triable by the Special Court, the rest of the offences punishable under the Act can be taken cognizance of and tried by the magistrate as before". I am of the opinion that the view, which I have taken above is further supported by the rule that emerges from the legal maxim expressio unius est exclusis alterius, that is, the express mention of one thing implies the exclusion of another. Whenever a statute limits a thing to be done in a particular form, it necessarily included in itself a negative also. Therefore, I find that, regarding the jurisdiction and powers of courts, in the amendment brought up by the Act 26 of 2008, a negative is also implied that all other things excluding the amendment will remain there in the statute as they were, without any disturbance. I find that the courts below in all these cases went wrong by committing these cases to the Court of Sessions, under Section 209 of the Cr.P.C.

Kerala High Court

Revision vs Zest Pharma on 24 April, 2013

              Crl.R.P. Nos. 1475, 1477, 1730
                      and 1742 of 2013
      

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Whether session Judge can directly take cognizance of offence under Drugs and cosmetics Act?

The Special Court, being a Court of Sessions, is not empowered to take cognizance straightway. The Code of Criminal Procedure, being the parent statute, provides for ways of investigation, enquiry or trial. Unless there is a specific provision in the other law, the provisions of the Code of Criminal Procedure cannot be disregarded or displaced. „Blood‟ being a substance, which is used for mitigating the sufferings of human beings has, per force, to be treated as „drug‟ within the inclusive definition of „drug‟ under the Act.

Patna High Court - Orders

Sri Rabindra Singh vs The State Of Bihar on 13 August, 2014

Criminal Miscellaneous No. 36135 of 2011

 CORAM:  MR. JUSTICE ASHUTOSH KUMAR 

Citation; 2015(3) crimes 628 Patna

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Whether Human blood is drug?

 A bare reading of the definition would make it obvious that any thing, which can be used for treatment or mitigation of any disease or disorder in human beings or animals, has to be treated as drug. The aforesaid definition, which is inclusive one, does cover „blood‟. „Human blood‟ is a substance, which is intended to be used in the treatment of diseases in human beings. It, therefore, squarely falls within the broad language of the statutory definition of „drug‟.

From a perusal of the Rules, framed under the Drugs and Cosmetics Act, 1940 also, it would appear that a separate Chapter has been dedicated for the rules to be followed in the cases of collection of samples of blood and storage of such blood. Part X-B of the Rules deals with collection and storage of blood. This also buttresses the inclusion of „blood‟ in the category of „drug‟, as defined under the Act.

 In Common Cause v. Union of India & Ors.

(AIR 1996 SC 929), it has been held that for the purposes of regulating the collection, storage and supply of blood, „blood‟ is treated as „drug‟.

Patna High Court - Orders

Sri Rabindra Singh vs The State Of Bihar on 13 August, 2014

Criminal Miscellaneous No. 36135 of 2011

 CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR 

Citation; 2015(3) crimes 628 Patna

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Whether complaint under Drugs Act is liable to be quashed on the ground that there is non compliance S 25(3) of drugs and cosmetics Act?

The case debated on the complaint filed against the petitioner about the use of sub-standard material in the manufacture of a medicine - The accused sought the dismissal of the complaint on the ground that the drug inspector had not furnished him the sample that was found to be sub-standard - It was held that in case of the demand by accused such sample had to be furnished to him within the 28 days of the demand - Since the same had not be done therefore, the complaint was liable to be quashed

 In the instant case, the Drug Inspector inspite of the receipt of the intimation from the petitioner Company 011 18-6-1994, did not do anything at all and allowed the time to lapse which ultimately resulted in denial of opportunity to the petitioners for getting the part of the sample of the drug re-analysed from the Central Drugs Laboratory, Calcutta which, in fact, has further resulted in depriving the petitioners from exercising their valuable statutory right which, in my opinion, goes to the root of the matter and adversely affects the prosecution. It is no doubt true that the report of the Government Analyst continues to be the evidence in a case of the facts contained therein. However, the right of the accused to get the sample analysed from the Central Drugs Laboratory, Calcutta is a valuable right since the certificate of Central Drugs Laboratory supersedes the report of the Government Analyst and is treated as conclusive evidence of its contents. In that view of the matter, in my opinion, the impugned order is not just and proper and the same is devoid of substance and misconceived.

Bombay High Court

M/S. Zim Laboratories Ltd. & ... vs The State Of Maharashtra on 2 February, 1999

Equivalent citations: 2000 (5) BomCR 282, 1999 CriLJ 2903, 1999 (3) MhLj 132

Bench: D Sinha

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