Anand S Bhandari Vs State of Karnataka

GANESH N. KUMBAR S/O NINGAPPA KUMBAR, PERSON IN CHARGE OF M/S. CHAITANYA GENERAL STORES, VPC NO.891, WARD NO.3, BAZAR ROAD, SHIGLI, TQ. SHIRAHATTI, DIST. GADAG-582 101.

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… PETITIONERS

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(BY SRI. M.M. PATIL, ADVOCATE)

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AND:

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STATE OF KARNATAKA,

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DRUGS INSPECTOR, GADAG CIRCLE, GADAG, REP. BY ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD-580 011.

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Digitally signed byRAKESH S RAKESH HARIHAR SHARIHAR Location:HIGHCOURT OF KARNATAKA DHARWAD BENCH

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DRUGS INSPECTOR, GADAG CIRCLE, GADAG-582 101.

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… RESPONDENTS (BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1; R2-SERVED)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. (UNDER SECTION 528 OF BNSS), PRAYING TO ALLOW THE CRIMINAL PETITION AND QUASH THE ENTIRE PROCEEDINGS WHICH ARE PENDING BEFORE THE ADDL. DISTRICT AND SESSIONS JUDGE GADAG IN S.C. NO.31/2024 ON THE BASIS OF COMMITTAL ORDER DATED 06.04.2024 FROM THE CIVIL JUDGE AND JMFC COURT LAXMESHWAR FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 18(C), 18A AND 22(1)(CCA) OF THE DRUGS AND COSMETICS ACT, 1940 PUNISHABLE UNDER SECTIONS 27(B)(II), 28 AND 22(3) OF DRUGS AND COSMETICS ACT-1940, IN THE INTEREST OF JUSTICE AND EQUITY.

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HC-KAR

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THIS PETITION COMING ON FOR ADMISSION, THIS DAY, ORDER IS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

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The petitioners are before this Court with a prayer to quash the entire proceedings in S.C. No.31 of 2024 pending before the Court of Principal District and Sessions Judge, Gadag, registered for the offence under Sections 18(c), 18A, 22(1)(cca) of the Drugs and Cosmetics Act, 1940, punishable under Sections 27(b)(ii), 28 and 22(3) of the Drugs and Cosmetics Act, 1940.

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Heard the learned counsel for the parties.

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Learned counsel for the petitioners having

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reiterated the grounds urged in the petition submits that the Company which has manufactured the drug is not arrayed as a party to the impugned proceedings and therefore, there is no compliance of Section 34 of the Drugs and Cosmetics Act, 1940 in the present case. He submits

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that the complaint is filed before the Court of Magistrate, which is not the jurisdictional Court to try the alleged offences. Therefore, impugned proceedings are liable to be quashed. He submits that the proceeding is of the year 2014 and nearly after ten years, the learned Magistrate has committed said case to the Court of jurisdictional Sessions Judge. Therefore, the right of speedy trial guaranteed under Article 21 of the Constitution of India has been violated in the present case. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Pankaj Kumar Vs. State of Maharashtra & Ors.¹ .

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Per contra , learned HCGP, who has opposed the petition, submits that the allegations against the petitioners is that they were selling drugs in their shop without license. Therefore, the Company which has manufactured the said drug is not necessary party to the impugned proceedings.

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1 2008 Crl.L.J. 3944

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HC-KAR

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She submits that, the Special Court has no jurisdiction to directly entertain the complaint unless the same is committed to it by the jurisdictional Court of Magistrate. Therefore, the complaint filed before the Court of jurisdictional Magistrate is maintainable. She submits that in view of Section 32 of the Act, learned Magistrate has subsequently committed the case to the Court of Jurisdictional Sessions Judge, which is the Special Court, for the purpose of Offences under Chapter-IV of the Act. The Special Court has now taken cognizance of the alleged offences and it is only at this juncture, the petitioners are before this Court. The judgment in the case of the Pankaj Kumar (supra) was rendered where there was an inordinate delay of eight years in completing the investigation and filing the charge sheet. Therefore, the said judgment cannot be made applicable to the present case. Accordingly, she prays to dismiss the petition.

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Petitioner No.1 is the Proprietor of a General Store known as M/s. Chaitanya General Stores and

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petitioner No.2 was working and was in charge of the said store on 17.12.2012, when the Jurisdictional Inspector of Drugs had visited and inspected the said store. The allegation against the petitioners is that they had sold two drugs namely lomofen tablets and eldoper capsules by receiving requisite cost of the said drug without possessing valid licence and it is under these circumstances, a complaint as provided under Section 32 of the Act was filed

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by the Jurisdictional Drug Inspector against the petitioners.

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Section 32 of the Drugs and Cosmetics Act, 1940 reads as follows:

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“ 32. Cognizance of offences. — (1) No prosecution under this Chapter shall be instituted except by—

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(a) an Inspector; or

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(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

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(c) the person aggrieved; or

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(d) a recognised consumer association whether such person is a member of that association or not.

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(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.

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(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.”

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Sub-section (2) of Section 32 provides that no

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Court inferior to that of a Court of Session shall try an offence punishable under Chapter IV of the said Act. However, Section 32 does not provide power to the Jurisdictional Sessions Court to take cognizance of the alleged offences as a court of original jurisdiction.

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Section 193 of the Cr.P.C. provides for cognizance of offence by Courts of Session, the same reads as follows:

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“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

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the case has been committed to it by a Magistrate under this Code.”

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This Court in the case of M/s. Padma

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Pharmaceutical’s and another Vs. the State through

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Drug Inspector Gulbarga Circle Office² has held that the complaint by a competent officer, as provided under sub-section (1) of Section 32 of the Act, is required to be filed before the Court of Jurisdictional Magistrate, who is thereafter required to commit the same to the Court of Jurisdictional Sessions Judge for trial, as provided under sub-section (2) of Section 32 of the Act. Though the learned Magistrate had initially taken cognizance of the alleged offences, subsequently having appreciated Section 32(2) of

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the Act, has rightly committed the case to the Court of jurisdictional Sessions Judge, who now by order dated 27.05.2024 has taken cognizance of the alleged offence as against the petitioners and has issued summons to them. Therefore, I do not find any merit in the contention of the

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2 Crl. R.P. No.200077 of 2018, DD: 20.02.2025

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learned counsel for the petitioners that the complaint filed before the learned Magistrate was not maintainable.

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Learned counsel for the petitioner has raised a contention that in view of Section 34 of the Act, the Company is a necessary party to the impugned criminal proceedings and in the absence of the Company being arrayed as respondent to the impugned criminal proceedings, the petitioners cannot be prosecuted for the alleged offences. The allegation against the petitioners is that they were found selling drugs which is named hereinabove without having a valid license for the same. There is no allegation against the Company, which has manufactured the aforesaid drugs. Therefore, the company is not a necessary party to the impugned criminal proceedings. The allegation found in the complaint relates only to the act committed by the petitioners and it does not in any way relate to the Company which has manufactured the drugs which were sold by the petitioners without licence in their store. Under the circumstances, the Company is not

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required to be arrayed as a party to the impugned proceedings and Section 34 of the Act is not at all applicable in the present case.

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In case of on hand, a complaint has been filed for the alleged offences before the jurisdictional Magistrate within the prescribed time and the same is not in dispute. The only contention urged on behalf of the petitioners is that the learned Magistrate, who had no jurisdiction to take cognizance of the alleged offences, having taken cognizance of the alleged offences, had proceeded further in the case for a period of nearly ten years and it is only thereafter he has committed the case to the jurisdictional Court of Sessions Judge and therefore, the right to speedy trial has been infringed in the present case. The material on record would go to show that, after the complaint was filed before the learned Magistrate, he had taken cognizance of the alleged offences and had issued summons to the petitioners. Though the petitioners had entered appearance before the Magistrate in response to the summons, at no

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point of time, they had brought to the notice of the learned Magistrate that he had no jurisdiction to take cognizance of the alleged offence and proceed further against the accused and on the other hand they had kept quiet and had participated throughout before the Magistrate and it is only after the learned Magistrate having realised that he had no jurisdiction to try the alleged offences, had committed the case to the jurisdictional Court of Sessions Judge, the petitioners have approached this Court.

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After the case was committed to the Court of jurisdictional Session Judge, the learned Session Judge has taken cognizance of the alleged offences and has issued summons to the petitioners. Therefore, the requirement of Section 32(2) of the Act has been complied in the present case. The judgment in the case of Pankaj Kumar (supra) was rendered where charge sheet was submitted in a case registered for the offences punishable under Section 120B, 409, 420, 465, 468, 471, 477(A), 101 read with Section 34 of the IPC and Section 5(1)(c)(d) read with Section 5(c) of

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the Prevention of Corruption Act, 1947 after a period of eight years. The delay of over eight years in completing the investigation and filing charge sheet, was not at all in any were attributable to the private parties in the said case, and it is under these circumstances, the Hon'ble Supreme Court had quashed the criminal proceedings in the said case.

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So far as the present case is concerned, after the learned Magistrate had taken cognizance of the alleged offences, he had issued summons to the petitioners. Though the petitioners had appeared before the Magistrate, at no point of time they had brought to the notice of the learned Magistrate that he had no jurisdiction to try the case for the alleged offences in view of Section 32(2) of the Act and on the other hand only after the learned Magistrate having appreciated Section 32(2) of the Act and had committed the case before him to the jurisdictional Court of Sessions Judge, the petitioners have approached this Court.

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HC-KAR

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Under the circumstances, I am of the opinion

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that the judgment in the case of Pankaj Kumar (supra) cannot be made applicable to the facts and circumstance of the present case. Therefore, I do not find any merit in this petition. Accordingly, the following:

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ORDER

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The Criminal Petition is dismissed.

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Sd/-

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(S.VISHWAJITH SHETTY)

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JUDGE

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VNP / CT: BCK LIST NO.: 1 SL NO.: 116.1

Anand S Bhandari v. State of Karnataka

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Anand S Bhandari v. State of Karnataka

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