Allowed

Suo Moto, v. State of Kerala

Kerala HC30 Oct 2019Crl.RC/54/2017

Case brief

AI extract

What is this about?

This suo motu revision set aside the wrong order of committal of a case involving substandard drugs from a Magistrate Court to the Court of Session. The court held that such offences, not relating to adulterated or spurious drugs, are triable by the Magistrate's Court under Section 36AB. The case was remanded to the Magistrate.

What did the court decide?

The order dated 10.03.2015 committing the case to the Court of Session is set aside, and the records are sent back to the Magistrate to try the case.

Suo Moto, Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941

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Crl.RC.No.54 OF 2017

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REPORT SUBMITTED BY THE SECOND ADDITIONAL SESSIONS JUDGE, ERNAKULAM IN SC 242/2015

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CP 17/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ERNAKULAM

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THE COURT ON ITS ON MOTION:

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SUO MOTO

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PROCEEDINGS ON A COMMUNICATION RECEIVED FROM THE II ADDITIONAL SESSIONS JUDGE, ERNAKULAM REGARDING WRONG COMMITTAL IN SC 242/2015 ON THAT COURT.

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BY ADV. X

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AGAINST:

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1 STATE OF KERALA, REPRESENTED BY REGIONAL DRUG INSPECTOR, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, ERNAKULAM REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2 MR. D.S. BRAR, THE MANAGING DIRECTOR, (PRESIDENT AND WHOLETIME DIRECTOR), M/S. RANBAXY LABORATORIES LTD., 11TH FLOOR, DEUKE TOWERS, 6TH NEHRU PLACE, NEW DELHI-110019.

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3 M/S. RANBAXY LABORATORIES LTD., 11TH FLOOR, DEUKE TOWERS, 6TH NEHRU PLACE, NEW DELHI-110019, REPRESENTED BY MANAGING DIRECTOR D.S. BRAR.

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4 MR. T.I. SESHADRI, POWER OR ATTORNEY HOLDER AND SENIOR MANAGER, RANBAXY LABORATORIES LTD., ERNAKULAM RESIDING AT PLOT NO.746/SECTOR 10, STREET 59, K.K. NAGAR, CHENNAI-78.

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5 MR. B.M. GUPTA, MANAGING DIRECTOR, M/S. MEDICAMEN BIOTECH LTD., 1192, A AND B, PHASE IV, BHISWANDI, 301 019, ALWAR, RAJASTHAN.

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6 M/S. MEDICAMEN BIOTECH LTD., SP 1192, ALWAR REPRESENTED BY MANAGING DIRECTOR, MR. B.M.GUPTA.

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R3-4 BY ADV. SMT.SADHANA KUMARI ESWARI R4 BY ADV. KUM.VIJEENDRA CHANDRAN

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SMT M K PUSHPALATHA -SR PP

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THIS CRIMINAL REVISION CASE HAVING BEEN FINALLY HEARD ON 22.10.2019, THE COURT ON 30.10.2019 PASSED THE FOLLOWING:

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Crl.Rev.Case No.54/2017

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R.NARAYANA PISHARADI, J ************************ Crl.Rev.Case No.54 of 2017

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Dated this the 30^th day of October, 2019

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O R D E R

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This suo motu revision was taken on the basis of the letter

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dated 25.03.2017 received from the Second Additional Sessions Judge, Ernakulam in the matter of wrong committal of a case to the Court of Session, Ernakulam.

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The case is based on the complaint filed by the Regional Drugs Inspector, Ernakulam against five accused persons. The allegation against the fourth and the fifth accused in the case is that they manufactured and distributed the drug Roscillin AMX capsules containing Amoxycillin 500 mg, not of standard quality and thereby committed the offence punishable under Section 18(a)(i) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act') which is punishable under Section 27(d) of the Act. The allegation against the first and the

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second accused is that, by distributing and transferring the aforesaid substandard drug to the Branch office in Ernakulam, they committed an offence punishable under Section 18(a)(i) read with 27(d) of the Act. The allegation against the third accused is that, by stocking and selling the aforesaid drug which is not of standard quality, he has committed an offence punishable under Section 18(a)(i) read with 27(d) of the Act. It is also alleged that, by not furnishing the information required under Section 18B of the Act, the first and the fourth accused have committed an offence punishable under Section 18B read with 28A of the Act. It is further alleged that, by refusing to produce the records required under Section 22(1)(cca), the first and the fourth accused have committed an offence punishable under Section 22(3) of the Act.

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As per the order dated 10.03.2015 in C.P.No.17/2014, the Judicial First Class Magistrate Court-II, Ernakulam committed the aforesaid case to the Court of Session, Ernakulam on the ground that there is an allegation of commission of an offence punishable under Section 22(3) of the Act which is exclusively

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triable by a Court of Session.

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In the letter dated 25.03.2017, the Second Additional

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Sessions Judge, Ernakulam has submitted that the order of committal made by the learned Magistrate is wrong as the offences allegedly committed by the accused are not exclusively triable by a Court of Session or a Special Court under the Act and therefore, the order of the learned Magistrate is liable to be revised and set aside.

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Heard the learned Public Prosecutor and the learned

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counsel for the parties who have appeared.

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Section 36AB(1) of the Act reads as follows:

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“ 36AB. Special Courts.- (1) The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences 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, by notification, designate one or

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more Courts of Session as a Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification.”

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The learned Magistrate has committed the case to the

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Court of Session on the ground that the offence punishable under Section 22(3) of the Act is triable exclusively by a Court of Session.

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8. In Zest Pharma v. Drug Inspector : 2013 (4) KLT

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462 , this Court had held as follows:

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“In view of the arguments advanced by the learned counsel for the revision petitioners, the question to be considered is whether the Magistrate's Court has the power to try an offence under S.18(a)(i) read with S.27(d) of the Drugs and Cosmetics Act after the commencement of Act 26 of 2008 with effect from 10.08.09. Before the commencement of Act 26 of 2008, all the offences coming under the purview of the Drugs and Cosmetics Act, 1940 were being tried by the Magistrate's Court only. The drastic change brought up by the said amendment is that punishment provision of certain offences are enhanced and the trial of certain offences are

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brought under the jurisdiction of the Sessions Court, which can be designated as Special Court. Therefore, after the amendment, two categories of courts are provided for the trial of offences coming under the Drugs and Cosmetics Act. So also, the powers of the Magistrate's Court are also enhanced so as to try certain offences punishable with imprisonment for a term not exceeding three years in a summary way. In short, after the amendment of 2008, the Magistrate's Court as well as Sessions Court designated as Special Court are vested with powers to try the respective offences coming under those courts. Coming to S.32(2), no court inferior to that of Court of Session shall try an offence punishable under this Chapter, save as otherwise provided in this Act. Therefore, the jurisdiction and power of the Magistrate's Court to try certain offences are also saved by the said saving provision. Coming to S.36AB, the Special Courts are vested with jurisdiction and power to try certain offences relating to adulterated drugs or spurious drugs and punishable under Clauses (a) and (b) of S.13 sub-s.(3) of S.22, Clauses (a) and (c) of S.27, S.28, S.28A, S.28B and Clause (b) of sub-s.(1) of S.30 and other offences relating to adulterated drugs or spurious drugs. In these cases,

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admittedly, the allegations would come neither under adulterated drug nor spurious drug. Thus, unambiguously S.18(a)(i) is excluded from S.36AB introduced by way of amendment with effect from 10.08.09. Certain offences which stood in the Act before the said amendment are seen carved out and brought under the jurisdiction of Special Court constituted and designated under S.36AB introduced by Act 26 of 2008 with enhanced penalties. Obviously, those offences excluded from such carving of will remain there with the Magistrate Court and continue as such without any disturbance. Therefore, I am of the opinion that even now after the amendment of 2008, the Magistrate's Courts are vested with the jurisdiction and power to try the offences under S.18(a)(i) read with S.27(d), if the allegation under S.18(a) (i) is that the drug is 'not of a standard quality.”

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A close scrutiny of the provision contained in Section 36AB(1) of the Act would show that when an offence punishable under Section 22(3) of the Act is committed, it does not automatically come under the purview of that provision. Only when such an offence is committed in relation to an adulterated drug or spurious drug, then only it would come within the

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purview of Section 36AB(1) of the Act. In the instant case, the offence is allegedly committed not in relation to an adulterated drug or spurious drug. The allegation is only that the drug manufactured, distributed and sold by the accused was not of standard quality. In such circumstances, though the offence punishable under Section 22(3) of the Act is alleged against the accused, such offence, allegedly committed by the accused not in relation to an adulterated drug or spurious drug, is triable by the Magistrate's Court and not by the Special Court constituted under the Act.

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In the aforesaid circumstances, the order of the learned Magistrate committing the case to the Court of Session is wrong and it is liable to be set aside.

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Consequently, the order dated 10.03.2015 in C.P.No.17/2014 of the Judicial First Class Magistrate Court-II, Ernakulam, committing the case to the Court of Session, is set aside. The learned Sessions Judge shall send back the records of the case to the learned Magistrate and the learned Magistrate shall try and dispose of the case in accordance with law. The

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parties shall appear before the concerned Magistrate's Court on 03.01.2020. If any of the accused does not appear before the Magistrate's Court on that day, the trial shall be proceeded only after issuing summons to such accused. The revision case is disposed of as above.

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

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jsr/29/10/2019

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TRUE COPY

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PS TO JUDGE

Suo Moto, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Suo Moto, v. State of Kerala

Case brief

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