Punjab-Haryana High Court
Raj Kumar vs State Of Haryana on 13 September, 2022
Author: Pankaj Jain
Bench: Pankaj Jain
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision : 13.09.2022
CRM-M No.23186 of 2012
Raj Kumar ....Petitioner
Versus
State of Haryana ...Respondent
CRM-M No.14043 of 2012 (O&M)
Raj Kumar ....Petitioner
Versus
State of Haryana and another ....Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. G.S. Sawney, Advocate
for the petitioner.
Mr. Sumit Jain, Addl. Advocate General, Haryana.
PANKAJ JAIN, J.
These two petitions have been filed under Section 482 Cr.P.C.
seeking quashing of the criminal proceedings against the petitioner. The petitioner is accused of advertising/displaying and selling allopathic medicine in his Dawa khana without valid licence in violation of provisions contained under Section 18(c), 18-A, 18-B of the Drugs and Cosmetics Act, 1940 (for short, 'the 1940 Act') and Sections 15(2), 15(3) of the Indian Medical Council Act, 1956.
2. As per the allegations levelled in the complaint it has been alleged that :-
1 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 2 CRM-M No.14043 of 2012 (O&M) "1. The complaint Sunil Dahiya, Drugs Control Officer, Ambala City is inspector under Section 21 of said Act by Govt. of Haryana vide Gazette Notification No.,5/11/99-1 H.B. III dated 31st March, 2003. Complainant is competent to launch a criminal complaint in court of law by virtue of Section 32 of said Act. Attested copy of notification is filed as Annexure-1.
2. That on dated 8.8.2011 complainant visited the Shiva Dawa Khana situated at Kaula Road, Jandli, Ambala City. Sh. Raj Kumar was found present on the spot who disclosed himself as proprietor of M/s Shiva Dawa Khana. Huge quantity of allopathic drugs were found kept for sale & distribution in the clinic. Complainant disclosed his identity and purpose of visit and asked to show Valid Drug License or Valid Registered Medical Practitioner Certificate required for stock, sale or distribution of allopathic drugs. But Raj Kumar could not produce any Valid Drug License or Valid Registered Medical Practitioner Certificate required for stock, sale & distribution of allopathic drugs. Complainant requested many people gathered there to join the investigation as independent witness Sh. Amit Ahuja s/o Sh. Bhagwan Dass Ahuja R/o 10735/6, near Old Post Office, Ambala City joined as independent witness.
Complainant seized 22 types of allopathic drugs vide Form-16. All these drugs were packed & sealed in a card-board box, details of these drugs were noted on form-16. Raj Kumar also gave his handwritten statement on this form-16. Form-16 and seized sealed box were signed by accused, independent witness and complainant. Copy of form16 was handed over to accused on the spot against receipt on form-16 itself. Copy of form-16 in original is filed as Annexure-A2.
Accused submitted some documents regarding his registration form "Ayurvedic & Unani Chikitsa Parnali Board, Delhi". This registration was not valid for stock, sale, distribution or practicing of allopathic drugs. Copies of these documents are 2 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 3 CRM-M No.14043 of 2012 (O&M) filed as Annexure A-3 to A5 respectively.
3. That complainant on the same day on the spot issued a show cause notice vide no.DCO/11/Spl-I dated 8.8.2011 to accused which was received by the accused against acknowledgement on office copy of this notice. Office copy of this notice is filed as Annexure A-6.
4. That on dated 09.08.2011 complainant produce the seized box and form-16 in the court of Hon'ble Chief Judicial Magistrate, Ambala and requested for custody order. Hon'ble Chief Judicial Magistrate, Ambala passed the custody order. Office copy of request letter for custody order and certified copy of order of Hon'ble Chief Judicial Magistrate, Ambala are filed as Annexure A-7 & A8 respectively.
5. That on dated 21.2.2012 complainant wrote a letter vide No DCO/EDA/97 dated 21.2.2012 to State Drugs Controller Haryana, Panchkula with request to grant permission to launch this case in court of law. State Drugs Controller Haryana granted permission to launch this case in court of law vide letter No.7/205-2-Drug-11-2012/1133 dated 14.3.2012. Office copy of letter No.DCO/FDA/97 dt. 21.2.22012 and letter No.7/205-2- Drug-11-2012/1133 dated 14.3.2012 in original are filed as Annexure A-9 & A10 respectively.
As per the record and circumstances and facts explained above, it is clear that accused No.1 had contravened following provisions of said Act and said Rules.
(i) Section-18(c) read with Rule 61 of the said Act by stocking for sale of allopathic drugs without having valid Drug License punishable under Section 27(b)
(ii) of said act and without being a Registered Medical Practitioner under Rule 2(ee) of said Act.
(ii) Section-18-A of the said act by not disclosing the name, address and other particulars of drugs (seized 3 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 4 CRM-M No.14043 of 2012 (O&M) vide form-16), form whom he had acquired these drugs which is punishable under section 28 of said Act.
Undersigned is competent to launch this prosecution by virtue of section 32(1) of the said act and Hon'ble Court is competent to trial this case by the virtue of section 32(2) of said Act."
3. The complaint was instituted on 7th of May, 2012. By way of petition bearing CRM-M No.23186 of 2012, the petitioner seeks quashing of the complaint and the consequential proceedings stated to be pending before the Chief Judicial Magistrate, Ambala City.
4. In the other petition i.e. CRM-M No.14043 of 2012 the petitioner seeks quashing of case FIR No.258 dated 9th of August, 2011 registered for the offences punishable under Sections 15(2), 15(3) of the Indian Medical Council Act, 1956; Sections 420, 336, 417 IPC and Section 18(c) of the Drugs and Cosmetics Act, 1940 and all proceedings subsequent thereto.
5. The contents of the FIR read as under :-
"Office of Drug Control Officer Ambala City (Haryana) Ref. No.-/DCO/646 dated 9.8.11 from Sunil Dahiya Drugs Control Officer Ambala to Chowki Incharge Model Town Ambala City Subject: For registering FIR against Raj Kumar son of Tara Chand, R/o 14-B, Kashi Nagar Model Town Ambala City Prop. M/s Shiva Dawa Khana Kaula Road, Jandli Ambala City. On the above subject on the basis of secret information dated 8.8.2011 the undersigned inspector Shiv Dawa Khana Kaula Roa, Jandli Ambala City. During inspection Raj Kumar 4 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 5 CRM-M No.14043 of 2012 (O&M) s/o Tara Chand who is the owner of Dawa Khana was present on the spot and on the spot he was found advertising English medicine and had kept different English medicine for selling in the Dawa Khana. When necessary drug licence was asked from Raj Kumar for keeping the medicines, he could not produce any licence nor any valid degree and on the spot or 22 different types of medicines were taken into custody and were put in cardboard box which was sealed on the spot. On the sealed cardboard box of medicine the signature of Raj Kumar and of witnesses Amit Ahuja son of Sh. Bhagwan Dass Ahuja, R/o 10735/6 near Purana Post Office Ambala City and witness Bhupinder Sharma s/o Sh. Pool Parkash R/o 158-C Indira Colony near Daulta Bagh Jandli were taken and was also signed by the undersigned.
That the accused above named has committed an offence U/s 420, 336, 417 IPC and under Section 15(2)(3) of Indian Medical Councl Act and under Section 18(c), 18-A, 18-B of the Drugs and Cosmetics Act, 1940 and that is why FIR be registered against the above named and necessary action be taken. The medicines confiscated under Form 16 and the custody order of these medicines have been taken from the ld. CJM Ambala City. The photocopy of form-16 is attached alongwith this letter."
6. The petitioner has been chargesheeted for offences punishable under Sections 15(2) & 15(3) of the Indian Medical Council Act and Section 27A of the 1940 Act.
7. Ld. Counsel for the petitioner submits that the FIR needs to be quashed the same being in violation of statutory provisions. He relies upon Section 32 of the 1940 Act to submit that the prosecution for offence punishable under the Drugs and Cosmetics Act can only be instituted on the complaint instituted by any of the persons as enumerated therein. Thus, he 5 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 6 CRM-M No.14043 of 2012 (O&M) claims that since the registration of the FIR itself is barred by law, subsequent proceedings also cannot be sustained. He further submits that even the complaint filed on the basis of same set of allegations cannot be sustained being in violation of Section 32(2). The petitioner is being tried by Chief Judicial Magistrate against the mandate of law which specifically provides that no Court inferior to the Court of Session shall try an offence punishable under Chapter IV of the 1940 Act. He, thus, submits that both the petitions deserve to be allowed and prosecution against the petitioner cannot be sustained being in the teeth of bare provisions of law.
8. Per contra, Ld. State Counsel submits that there is no conflict with the proposition of law that no prosecution under the provisions of Chapter IV of the 1940 Act can be instituted except by the persons mentioned therein. However, he submits that the complaint instituted against the petitioner by a validly authorized person cannot be quashed as it is always within the jurisdiction of Chief Judicial Magistrate to commit the case to Special Court. He relies upon Section 193 of the Code of Criminal Procedure (for short, 'the Cr.P.C.) to contend that the Special Court under the 1940 Act cannot take direct cognizance in the absence of enabling provision in the said Act in that regard.
9. I have heard counsel for the parties and have gone through records of the case.
10. In order to appreciate the arguments raised by counsel for the 6 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 7 CRM-M No.14043 of 2012 (O&M) parties it will be apt to read provisions contained in Sections 18, 27, 32, and Section 36AC of the 1940 Act.
"18. Prohibition of manufacture and sale of certain drugs and cosmetics.--From such 2 date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf--
(a) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute--
[(i) any drug which is not of a standard quality, or is misbranded, adulterated or spurious;
[(ii) any cosmetic which is not of a standard quality or is misbranded, adulterated or spurious;]] [(iii) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof [the true formula or list of active ingredients contained in it together with the quantities thereof];]
(iv) any drug which by means of any statement design or device accompanying it or by any other means, purports or claims [to prevent, cure or mitigate] any such disease or ailment, or to have any such other effect as may be prescribed;
[(v) any cosmetic containing any ingredient
which may render it unsafe or harmful for
use under the directions indicated or
recommended;
(vi) any drug or cosmetic in contravention of any
of the provisions of this Chapter or any rule made thereunder;]
(b) [sell or stock or exhibit or offer for sale,] or distribute 7 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 8 CRM-M No.14043 of 2012 (O&M) any drug [or cosmetic] which has been been imported or manufacutred in contravention of any of the provisions of this Act or any rule made thereunder;
(c) [manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale,] or distribute any drug [or cosmetic], except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter:
Provided that nothing in this section shall apply to the manufacture, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis :
Provided further that the [Central Government] may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the [manufacture for sale or for distribution, sale, stocking or exhibiting or offering for sale] or distribution of any drug or class of drugs not being of standard quality.
[27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.--Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,--
(a) any drug deemed to be adulterated under section 17A or spurious under section 6 [17B and which] when used by any person for or in the diagnosis, treatment, mitigation, or pre -
vention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grevious hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860) solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be [punishable with imprisonment 8 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 9 CRM-M No.14043 of 2012 (O&M) for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more]:
[Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause:
Provided further that where the use of the adulterated or, spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realised from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulterated or spurious drugs referred to in this clause.
Explanation.--For the purposes of the second proviso, the expression "relative" means--
(i) spouse of the deceased person; or
(ii) a minor legitimate son, and unmarried
legitimate daughter and a widowed mother; or
(iii) parent of the minor victim; or
(iv) if wholly dependent on the earnings of the deceased person at the time of his death, a son or a daughter who has attained the age of eighteen years; or
(v) any person, if wholly or in part, dependent on the earnings of the deceased person at the time of his death,--
(a) the parent; or
(b) a minor brother or an unmarried sister; or
(c) a widowed daughter-in-law; or
(d) a widowed sister; or
(e) a minor child of a pre-deceased son; or
(f) a minor child of a pre-deceased daughter where no parent of the child is alive; or
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(g) the paternal grandparent if no parent of the member is alive;]
(b) any drug--
(i) deemed to be adulterated under section 17A but not being a drug referred to in clause (a), or
(ii) without a valid licence as required under clause (c) of section 18, shall be punishable with imprisonment for a term which shall [not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more]:
Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than three years and of fine of less than one lakh rupees];
(c) any drug deemed to be spurious under section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall [not less than seven years but which may extend to imprisonment for life and with fine which shall not be three lakh rupees or three times the value of the drugs confiscated, whichever is more]:
Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than seven years but not less than three years and of fine of less than one lakh rupees];
(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall
10 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 11 CRM-M No.14043 of 2012 (O&M) be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years 5 [and with fine which shall not be less than twenty thousand rupees]:
Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year."
32. Cognizance of offences-- [(1) No prosecution under this Chapter shall be instituted except by--
(a) an Inspector; or
(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 or by a general or special order made in this behalf by that Government; or
(c) the person aggrieved; or
(d) a recognised consumer association whether such person is a member of that association or not.
(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.] (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.
36AC. Offences to be cognizable and non-bailable in certain cases. -- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) every offence, relating to adulterated or spurious drug and punishable under clauses (a) and (c) of sub-section (1) of section 13, clause (a) of sub-section (2) of section 13, 11 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 12 CRM-M No.14043 of 2012 (O&M) sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and sub-sections (1) and (2) of section 30 and other offences relating to adulterated drugs or spurious drugs, shall be cognizable.
(b) no person accused, of an offence punishable under clauses (a). and (c) of sub-section (1) of section 13, clause
(a) of sub-section (2) of section 13, sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and sub-sections (1) and (2) of section 30 and other offences relating to adulterated drugs or spurious drugs, shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs.
(2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a reference to a "Special Court" designated under section 36AB.]"
11. As per the allegations levelled against the petitioner he is stated 12 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 13 CRM-M No.14043 of 2012 (O&M) to be guilty of selling, stocking, exhibiting and offering for sale allopathic drugs without valid licence and, thus, is said to have violated provisions contained in Section 18(c) of the 1940 Act and thereby rendering himself to be liable for penalty under Section 27(b)(ii) of the 1940 Act. Section 32 provides for that no prosecution under this Chapter shall be instituted except by :
(a) an Inspector; or
(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 or by a general or special order made in this behalf by that Government; or
(c) the person aggrieved; or
(d) a recognised consumer association whether such person is a member of that association or not.
12. I may hastenly add herein that there are certain offences punishable under the 1940 Act which have been held to be cognizable and non-bailable under Section 36AC. As per Section 36AC(1)(a) offences punishable under Section 27(a) and those punishable under Section 27(c) have been held to be cognizable. Legislature in its own wisdom have excluded offence punishable under Section 27(b) from the offences made cognizable under the Act. Thus, it will be safe to conclude that the said offence under the Act has been held to be non-cognizable. Thus the Court 13 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 14 CRM-M No.14043 of 2012 (O&M) ought not have taken cognizance on the report filed under Section 173 Cr.P.C. by the Police.
13. Reference can be made to law laid down by the Apex Court in the case of Union of India vs. Ashok Kumar Sharma and others, 2020 (3) R.C.R. (Criminal) 726 wherein Apex Court has held :-
"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 CrPC, 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 CrPC 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 CrPC, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the CrPC.
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 CrPC.
14 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 15 CRM-M No.14043 of 2012 (O&M) 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 CrPC, but also immediately report the arrests to their superior Officers."
(emphasis supplied)
14. Thus, FIR No.258 dated 9th of August, 2011 registered for the offences punishable under Sections 15(2), 15(3) of the Indian Medical Council Act, 1956; Sections 420, 336, 417 IPC and Section 18(c) of the 1940 Act and all proceedings subsequent thereto are ordered to be quashed.
15. Accordingly, petition i.e. CRM-M No.14043 of 2012 is 15 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 16 CRM-M No.14043 of 2012 (O&M) allowed.
16. However, coming on to the plea raised by counsel for the petitioner qua the complaint, it needs to be noticed that the plea raised by the petitioner qua merits of the allegations levelled in the complaint cannot be gone into while exercising jurisdiction under Section 482 Cr.P.C. As per provision contained in Section 36AD of the 1940 Act, the provisions of Cr.P.C. have been made applicable to the proceedings before the Special Court. For the purposes of the said provisions the Special Court is to be deemed to be the Court of Session. State Government in exercise of the powers conferred under Section 36AB of the 1940 Act has designated Sessions Judge in each District as Special Court for trying specified offences under the Act of 1940. In view of Section 36AD of the 1940 Act, Section 193 of the Code shall be applicable. Thus the cognizance of the offence by the Court will be taken only after the same has been committed by the Magistrate. Apex Court in the case of Gangula Ashok vs. State of A.P., (2000) 2 SCC 504 while dealing with the issue of applicability of Section 193 Cr.P.C. on the Special Court notified under a special statute held that :-
"9. 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 16 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 17 CRM-M No.14043 of 2012 (O&M) 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".
10. 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.
11. Neither in the Code nor in the Act there is any provision whatsoever, not even by implication, that the specified Court of Session (Special Court) can take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a magistrate. If that be so, there is no reason to think that the charge-sheet or a complaint can straightway be filed before such Special Court for offences under the Act. It can be discerned from the hierarchical settings of criminal courts that the Court of Session is given a superior and special status. Hence we 17 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 18 CRM-M No.14043 of 2012 (O&M) think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which magistrates have to do until the case is committed to the Court of session.
xxxxx
16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightway be laid before the Special Court under the Act.
xxxxx
24. It is contextually relavant to notice that Special Courts created under certain other enactments have been specially empowered to take cognizance of the offence without the accused being committed to it for trial, (e.g. Section 36-A(l)(d) of the Narcotics Drugs and Psychotropic Substances Act). It is significant that there is no similar provision in the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act."
17. Since there is no provision under the 1940 Act which specially empowers the Special Court created under the said enactment to take cognizance of the offence without the accused having been committed to it for trial, the Chief Judicial Magistrate in the light of law laid down by Apex Court in Gangula Ashok's case (supra) is directed to commit the accused to the Special Court designated under the 1940 Act for trial. Thus, the prayer made by the petitioner seeking quashing of the complaint and subsequent summoning order is declined.
18. Both the petitions are disposed off accordingly in terms of the 18 of 19 ::: Downloaded on - 30-12-2022 17:01:46 ::: CRM-M No.23186 of 2012 and 19 CRM-M No.14043 of 2012 (O&M) orders passed hereinabove.
19. The accused be committed to face trial on the basis of the complaint to the Sessions Court designated as Special Court under the provisions of the 1940 Act as far as possible in accordance with law.
20. Pending application(s), if any, also stands disposed off.
21. A copy of this order be kept on the file of other connected case.
September 13, 2022 (PANKAJ JAIN)
Dpr JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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