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2024 DIGILAW 124 (HP)

Narotam Chand v. State of H. P.

2024-02-26

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. Drug Inspector, District Kangra, H.P. inspected the premises of the petitioner (accused before learned Trial Court) on 27.5.2014 and found various allopathic drugs stocked, exhibited and offered for sale in the petitioner’s shop. The petitioner was present at the time of the inspection. The drug Inspector asked him to produce the document authorizing him to possess the drugs or to produce a valid certificate of a registered medical practitioner to practice the allopathic system of medicine. The petitioner produced two certificates from the Para Medical Science Council, Punjab in Community Medical Services, a Press Card, and one experience certificate from Karan Hospital. The drug Inspector seized the photocopies of these documents. The petitioner could not produce any valid certificate of a registered medical practitioner to practice in the allopathic system of medicine or any license to possess the drugs. The drugs were seized for 20 days on Form-15 in the presence of Tilak Raj and Anuj Kumar. A Show Cause Notice was given to the petitioner to produce the record of the possession of the drugs. The petitioner sought an extension and thereafter produced two purchase invoices of Vee Kay Pharmaceuticals, Kangra on 27.5.2014. However, the petitioner could not produce any drug licence to stock the allopathic drugs for sale or a valid certificate of registered medical practitioner. The drugs were seized as per the Rules and a complaint was filed after obtaining the sanction. 2. The case was committed to the learned Special Judge, Kangra at Dharamshala, who framed the charges vide order dated 24.11.2021. 3. Being aggrieved from the order framing the charges, the present petition has been filed for quashing the order passed by learned Special Judge, Kangra at Dharamshala. It was asserted that the learned Trial Court failed to properly consider the present matter. The petitioner had produced two purchase invoices and there was sufficient compliance with Section 18A of the Drugs and Cosmetics Act. The matter should have been tried by the learned Magistrate as per Section 36 of the Drugs and Cosmetics Act. The learned Special Judge erred in framing the charges and trying the matter. Therefore, it was prayed that the order passed by learned Special Judge be set aside and the matter be remitted to the learned Magistrate. 4. The petition is opposed by filing a reply making a preliminary submission regarding the lack of maintainability. The learned Special Judge erred in framing the charges and trying the matter. Therefore, it was prayed that the order passed by learned Special Judge be set aside and the matter be remitted to the learned Magistrate. 4. The petition is opposed by filing a reply making a preliminary submission regarding the lack of maintainability. The contents of the petition were denied on merits. It was asserted that the learned Trial Court had rightly framed the charges. It was admitted that two purchase invoices were produced by the petitioner. The clinic was being run in violation of Sections 18, 18(c) and 18A of the Drugs and Cosmetics Act without a valid licence or a certificate of a registered medical practitioner. The offence committed by the petitioner falls under Chapter IV of the Drugs and Cosmetics Act and is to be tried by a Court not inferior to the Court of Sessions. Therefore, it was prayed that the present petition be dismissed. 5. I have heard Mr. Paras Sharma, learned Counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State. 6. Mr. Paras Sharma, learned counsel for the petitioner submitted that the petitioner had produced the invoices showing the purchase of the drugs. Learned Special Judge erred in framing the charges for the commission of an offence punishable under Section 27 of the Drugs and Cosmetics Act. The offence punishable under the Drugs and Cosmetics Act is to be tried by the Court of Magistrate and learned Special Judge erred in trying the same. Therefore, it was prayed that the present petition be allowed the order passed by learned Special Judge be set aside and the matter be remitted to the learned Magistrate. He relied upon the judgment of the Karnataka High Court in M/s Lenit Pharmaceuticals Vs. State. Cr. Petition No. 102391/2019, decided on 9.9.2020, Kalaptaru Medicos vs. Food and Drugs Administration, MCRC No. 1940/2016, decided on 10.1.2017, Kerala High Court in Zest Pharma vs. Drug Inspector, Cr. Revision No. 1475 of 2013, decided on 13.10.2013 and Abhimanyu Singh vs. State, Cr. MC No. 1619 of 2023, decided on 13.10.2017 in support of his submissions. 7. Mr Jitender Sharma, learned Additional Advocate General for the respondent-State supported the order passed by the learned Trial Court and submitted that no interference is required with the same. Revision No. 1475 of 2013, decided on 13.10.2013 and Abhimanyu Singh vs. State, Cr. MC No. 1619 of 2023, decided on 13.10.2017 in support of his submissions. 7. Mr Jitender Sharma, learned Additional Advocate General for the respondent-State supported the order passed by the learned Trial Court and submitted that no interference is required with the same. The petitioner was running a clinic without valid documents and he was rightly charged. The offence punishable under Chapter IV of the Drugs and Cosmetics Act is triable by the Court of Sessions. There is no infirmity in the trial being conducted by the learned Sessions Judge. Hence, he prayed that the present petition be dismissed. 8. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 9. At the outset, it is to be noticed that in the order framing charge, the Court has described itself as the Special Judge. It is an error because the offences punishable under Chapter-IV of the Drugs and Cosmetics Act are to be tried by the Court of Sessions and not by the Court of Special Judge. Since in the State of Himachal Pradesh, the Courts of Sessions have also been designated the Courts of Special Judge, therefore, no prejudice is caused to any provision by the wrong description of the Court as the Court of Special Judge instead of Court of Sessions. 10. Section 18A of the Drugs and Cosmetics Act provides that every person not being a manufacturer of a drug or cosmetic or his agent for the distribution thereof shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he had acquired the drugs or cosmetics. It was admitted in para-7(d) of the reply that the petitioner had produced two purchase invoices on 27.5.2014; hence it is undisputed that the petitioner had produced the invoices of the drugs showing the name of the person from whom he had acquired the drugs. Therefore, there was sufficient compliance with Section 18A and no offence punishable under Section 28 of the Drugs and Cosmetics Act was made out. Learned Trial Court erred in framing the charge against the petitioner for the commission of an offence punishable under Section 28 read with Section 18A of the Drugs and Cosmetics Act. 11. Therefore, there was sufficient compliance with Section 18A and no offence punishable under Section 28 of the Drugs and Cosmetics Act was made out. Learned Trial Court erred in framing the charge against the petitioner for the commission of an offence punishable under Section 28 read with Section 18A of the Drugs and Cosmetics Act. 11. The complaint specifically mentions that the petitioner could not produce any document for stocking or selling the drugs. This was not asserted to be incorrect. Section 18(c) of the Drugs and Cosmetics Act punishes a person who sells, stocks, exhibits or offers for sale or distributes any drug or cosmetic except as per the condition of the licence. This offence is punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act. Both Section 18 and Section 27 of the Drugs and Cosmetics Act fall in Chapter IV of the Drugs and Cosmetics Act. Section 32(2) of the Drugs and Cosmetics Act provides that save as otherwise provided in the Act, no Court inferior to that of Court of Sessions shall try an offence punishable under this Act. It was laid down by the Hon’ble Supreme Court in Union of India vs. Ashok Kumar Sharma 2021 (12) SCC 674 that only the Court of Sessions is competent to try the offences punishable under Chapter IV of the Drugs and Cosmetics Act in view of Section 32(2) of the Drugs and Cosmetics Act. It was observed:- “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 Session shall try an offence punishable under Chapter IV. We have noticed that under Section 193 CrPC, no Court of Session can take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under CrPC. This is, undoubtedly, subject to the law providing expressly that that Court of Session 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 Session to take cognizance of the offence under Chapter IV. This is, undoubtedly, subject to the law providing expressly that that Court of Session 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 Session to take cognizance of the offence under Chapter IV. This means that the provisions of Chapters XV and XVI 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) 12. Therefore, in view of the binding precedent of the Hon’ble Supreme Court, the submission that the Court of Sessions is not competent to try the offence under Chapter IV of the Drugs and Cosmetics Act cannot be accepted. 13. In Lenit Pharmaceuticals (supra) the question was whether the Special Court can take cognizance directly without the case being committed to it. It was held that cognizance can not be taken directly and the case has to be committed. A similar view was taken in M/s Kalaptaru Medicos (supra). Therefore, both these judgments do not apply to the present case. 14. In Zest Pharma (supra), the Kerala High Court held that the Magistrate has the power to try the offence under Section 18(a) (i) read with Section 27(d). It was further held that two categories of Courts, namely, the Court of Magistrate and the Court of Special Judge are provided after the amendment. All the offences which are not triable by the Court of Special Judges shall continue to be tried by the Magistrate. It was further held that two categories of Courts, namely, the Court of Magistrate and the Court of Special Judge are provided after the amendment. All the offences which are not triable by the Court of Special Judges shall continue to be tried by the Magistrate. With due respect, it is difficult to agree with the reasoning of the Kerala High Court because three classes of Courts are competent to try the offences under the Act after the amendment; (i) Court of Sessions under Section 32, which shall try the offences under Chapter IV of the Drugs and Cosmetics Act; (ii) Court of Magistrate, which shall try the offences under Chapters III and IVA of Drugs and Cosmetics Act; and (iii) Special Courts under Section 36AB of the Act. The Kerala High Court reduced the number of Courts competent to try the offences to two by equating the Court of Sessions under Section 32 to the Special Court under Section 36AB, which affected the ultimate decision of the Court. 15. Much emphasis was placed upon the words, “save as otherwise provided” used in Section 32 to conclude that it will save the power of the Magistrate. With due respect, these words are to be referred to the Special Court because the Special Court is empowered to try the offences under 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 which fall within Chapter-IV of the Drugs and Cosmetics Act and would have been ordinarily triable by the Court of Sessions in view of Section 32 (2) of the Act. Therefore, it was necessary to create an exception in the Section itself and the exception cannot be used to conclude that the offences under Chapter IV-A of the Act are to be tried by the Magistrate. 16. Therefore, with due respect and utmost humility, the judgment of the Kerala High Court that the Magistrate will be competent to try the offence punishable under Chapter-IV of the Drugs and Cosmetics Act cannot be followed and it has to be held that the offences punishable under Chapter-IV of the Drugs and Cosmetics Act are triable by the Court of Sessions and not by the Magistrate. 17. 17. Consequently, the prayer that the case be transferred to the Court of Magistrate cannot be accepted. 18. No other point was urged. 19. In view of the above, the present petition is partly allowed and the order passed by learned Sessions Judge framing charges for the commission of offence punishable under Section 28 read with Section 18A of the Drugs and Cosmetics Act is ordered to be set aside. The petitioner will be tried for the commission of offence under Section 18(c) punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act. 20. The parties through their respective counsel are directed to appear before the learned Trial Court on 28.03.2024. 21. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.