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2004 DIGILAW 6 (PNJ)

Munish Kumar v. State of Haryana

2004-01-06

SATISH KUMAR MITTAL

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JUDGMENT Satish Kumar Mittal, J. - Through this petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code), the petitioners seek quashing of the complaint (Annexure P-1) filed under Section 18(c) read with Sections 61 and 18(a)(i) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Drugs Act) and the orders dated 3.1.1995 (Annexure P-2) and 14.3.1996 (Annexure P-3) passed by the Additional Chief Judicial Magistrate, Hisar and the Additional Sessions Judge, Hisar respectively. 2. The brief facts of the case are that petitioners No. 1 to 4 are the partners of petitioner No. 5 firm. On 16.7.1991, a complaint was filed by the District Drugs Inspector, Hisar against the petitioners under Section 18(c) read with Sections 61 and 18(1)(i) of the Drugs Act alleging therein that on 17.8.1988, a raid was conducted on the business premises of petitioner No. 5 firm. In the said raid, some allopathic drugs i.e. Avil and Anacin were found in the business premises of the firm. It was alleged that without obtaining any licence under Rule 61 of the Drugs and Cosmetics Rules, 1945, the firm was selling the allopathic medicine. It was further alleged that as per report of the Government Analyst Haryana, Chandigarh, drugs seized from the business premises of the petitioners were found to be of unstandard quality. On the day of filing the complaint i.e. 16.7.1991, Chief Judicial Magistrate, Hisar took the cognizance of the said complaint and issued summons to the petitioners. 3. The pre-charge evidence of the complainant was recorded. The petitioners raised objections regarding framing of charges against them on various grounds including that on 16.7.1991, Chief Judicial Magistrate, Hisar was not competent to take cognizance of the matter as he was not specifically empowered by the State Government under Section 36-A of the Drugs Act to take cognizance of such offences under the Drugs Act, which are punishable with imprisonment upto three years. All the offences alleged against the petitioners are also punishable with imprisonment upto three years, but the learned Chief Judicial Magistrate, Hisar, who took cognizance of the complaint and issued summons to the petitioners was not empowered by the State Government under Section 36-A of the Drugs Act to try such offences. All the offences alleged against the petitioners are also punishable with imprisonment upto three years, but the learned Chief Judicial Magistrate, Hisar, who took cognizance of the complaint and issued summons to the petitioners was not empowered by the State Government under Section 36-A of the Drugs Act to try such offences. The State Government issued notification only on 20.9.1991 under Section 36-A of the Drugs Act conferring powers on the Judicial Magistrate Ist Class including the Chief Judicial Magistrates in the State of Haryana who were for the time being exercising summary powers under Section 260 of the Code. While rejecting the prayer of the petitioners, Additional Chief Judicial Magistrate, vide his order dated 3.1.1995 (Annexure P-2) framed charges against all the petitioners for commission of offence punishable under Sections 27(b)(ii), 27(d) and 28A of the Drugs Act. Against that order, the petitioners filed revision petition before Additional Sessions Judge, Hisar, which was dismissed vide order dated 14.3.1996 (Annexure P-3). Hence, this petition under Section 482 of the Code for quashing the complaining as well as the aforesaid orders. 4. Notice to his petition was issued to the respondent-State. 5. Learned counsel for the petitioners argued that on 16.7.1991, when the Chief Judicial Magistrate, Hisar took the cognizance of the complaint (Annexure P-1) and issued summons to the petitioners, he was not competent to take cognizance of the alleged offences on the complaint filed by the District Drugs Inspector, Hisar, under Section 36-A of the Drugs Act, as he was not specifically empowered by the State Government to try such offences under the Drugs Act which are punishable with imprisonment upto three years. In support of his contention, learned counsel for the petitioners relied upon Dr. (Mrs.) Kaushalya Malhotra v. State of Haryana, 1994(1) Recent Criminal Reports 345, Shiv Lal Yadav v. State of Haryana, 1995(1) Recent Criminal Reports 503, Dr. Ishwar Singh v. State of Haryana, 1995(2) Recent Criminal Reports 123, Mool Chand v. State of Haryana, 1995(3) Recent Criminal Reports 214 and Bhupinder Kumar and another v. State of Haryana, 1996(4) Recent Criminal Cases 728. 6. Learned counsel for the respondent-State argued that actually this petition under Section 482 of the Code is the second revision petition and the same is not maintainable in view of Section 397(3) of the Code. However, on merits, he could not cite any contrary ruling. 7. 6. Learned counsel for the respondent-State argued that actually this petition under Section 482 of the Code is the second revision petition and the same is not maintainable in view of Section 397(3) of the Code. However, on merits, he could not cite any contrary ruling. 7. Undisputedly, on 16.7.1991, when cognizance of the complaint (Annexure P-1) was taken and summons were issued to the petitioners by Chief Judicial Magistrate, Hisar, he was not empowered to try the complaint filed under the Drugs Act. The same power was conferred on him under Section 36-A of the Act only on 20.9.1991, when the notification in this regard was issued by the State Government. It is also not disputed by the learned counsel appearing for the respondent-State that the maximum punishment for the alleged offences is only three years. Therefore, these offences were to be tried only in summary manner but the power to try such cases n a summary manner was conferred on the Chief Judicial Magistrates in the State of Haryana only on 20.9.1991. As such, on 16.7.1991, when Chief Judicial Magistrate, Hisar took cognizance of complaint (Annexure P-1) he was having no jurisdiction to try the case in summary manner. This aspect of the matter has been considered by this Court in various judgments as have been cited by learned counsel for the petitioners. In Bhupinder Kumar and another v. State of Haryana (supra), this Court as observed as under :- "A perusal of these provisions and the punishment provided for the offences punishable under Sections 27(d), 28 and 28-A of the Act is less than three years. Under Section 36-A of the Act these offences which provide for punishment upto three years are to be tried summarily by the Judicial Magistrates Ist Class who have been given summary powers to try such offences on being specially empowered in this behalf by the State Government. As noticed above, the date of the notification issued by the State Government specially empowering the Judicial Magistrate Ist Class and Chief Judicial Magistrate having summary powers under Section 260 of Code of Criminal Procedure to try such offences under the Act summarily which are punishable with imprisonment for a term not exceeding to three years, is 20.9.1991. As noticed above, the date of the notification issued by the State Government specially empowering the Judicial Magistrate Ist Class and Chief Judicial Magistrate having summary powers under Section 260 of Code of Criminal Procedure to try such offences under the Act summarily which are punishable with imprisonment for a term not exceeding to three years, is 20.9.1991. It is, thus, evident that the Chief judicial Magistrate, Karnal took cognizance of the offences punishable under Sections 27(d), 28, 28-A of the Act prior to his being specially empowered under Section 36-A of the Act by the State Government vide notification, referred to above. Learned counsel for the petitioners has cited the judgment of a learned Single Judge of this Court in the case of Dr. (Mrs.) Kaushalya Malhotra v. State of Haryana, 1994(1) R.C.R. 345. The said case related to a complaint filed under the Drugs and Cosmetics Act, 1940. The notification was issued by the State Government of Haryana on 20.9.1991 for the first time and the complaint had been filed before the Chief Judicial Magistrate and accused was summoned by the Court on 21.5.1988 i.e. prior to the issuance of the notification. It was held that at the time of the presentation of the complaint, the Chief Judicial Magistrate was not competent to take cognizance of the offence mentioned in the complaint and consequently, the proceedings before the trial Court were void ab initio and were quashed under Section 482 Criminal Procedure Code" 8. The factual position of the case has been conceded by learned counsel for the respondent-State. I do not find any merit in the only argument raised by him that this petition under Section 482 of the Code is not maintainable as it amounts second revision petition. The Honble Supreme Court in Puran v. Rambilas and another, 2001(6) Supreme Court Cases 338 has held that the High Court has inherent jurisdiction under Section 482 of the Code and the said jurisdiction remains unaffected by provisions of sub-section (3) of Section 397 of the Code. The power of the High Court under Section 482 of the Code can be exercised to secure the ends of justice and to prevent miscarriage of justice. The power of the High Court under Section 482 of the Code can be exercised to secure the ends of justice and to prevent miscarriage of justice. Once, it is found that on the day when the cognizance of the complaint (Annexure P-1) was taken by the Chief Judicial Magistrate and summons were issued, he was not competent to try the alleged offences under the Drugs Act, then the subsequent proceedings would tantamount to miscarriage of justice to the petitioners, particularly when in similar circumstances the various complaints on the same grounds have been quashed by this Court. In view of the aforesaid discussion, this petition is allowed and the complaint (Annexure P-1) and the consequent proceedings including the impugned orders dated 3.1.1995 (Annexure P-2) and 14.3.1996 (Annexure P-3) are hereby quashed. Petition allowed.