Karnataka High Court
M/S.Lenit Pharmaceuticals vs State At The Instance Of on 9 September, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
CRL.P.102391/2019
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO. 102391/2019
BETWEEN:
1. M/S.LENIT PHARMACEUTICALS
PLOT NO.2, INDUSTRIAL AREA,
RAJA KA BAGH, VPO GIORA-176201,
TEHSIL NURPUR, DIST: KANGRA (H.P.) 176 001
BY ITS PROPERITOR MR DINESH GUPTA.
2. SRI.DINESH GUPTA
PROPRIETOR CUM MANUFACTURING CHEMIST OF
M/S. LENIT PHARMACEUTICALS,
PLOT NO.2, INDUSTRIAL AREA,
RAJA KA BAGH, VPO GIORA-176201,
TEHSIL NURPUR, DIST: KANGRA (H.P.),
BY ITS PROPERITOR, MR DINESH GUPTA.
... PETITIONERS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
STATE AT THE INSTANCE OF
ASSISTANT DRUGS CONTROLLER,
HAVERI CIRCLE, HAVERI-581110
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
... RESPONDENT
(BY SRI. JEEVAN J. NEERALAGI, AGA)
CRL.P.102391/2019
:2:
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN
S.C.NO.9/2019 PENDING ON THE FILE OF THE PRL. DIST. &
SESSIONS JUDGE, HAVERI, REGISTERED FOR OFFENCES U/S
18(A)(i) AND SEC. 18(a)(i) R/W RULE 17B(d), SEC. 27(c)
AND SEC. 27(d) OF DRUGS AND COSMETICS ACT, 1940 AND
ALSO THE ORDER DATED 18.01.2019 TAKING COGNIZANCE
OF AFORESAID OFFENCES.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is a pharmaceutical company and it is before this Court seeking for quashing the proceedings in S.C.No.9/2019, pending on the file of the Principal District and Sessions Judge, Haveri, registered for the offences punishable under Section 18(A)(i) and Section 18(a)(i) read with Rule 17B(d), Section 27(c) and Section 27(d) of Drugs and Cosmetics Act, 1940, as also the order dated 18.01.2019, of the Special Court taking cognizance of the aforesaid offences.
2. The complainant, who is the Drug Inspector appointed under Section 21 of the Drugs and CRL.P.102391/2019 :3: Cosmetics Act, 1940, filed a complaint in terms of Section 32(1) of the said Act, contending that the petitioner No.1 is a manufacturing firm registered under license to manufacture certain drugs by the Drugs Licensing Authority and Drugs Control Administration, North Zone. On 14.05.2015, the Drugs Inspector had drawn legal samples of Tablets Rabeprox-20 and sent them to the Government Analyst, Drugs Testing Laboratory for examination, which was received on 04.01.2016, stating that the drug was not of standard quality and as such, a notice was issued under Section 18A and 18B of the Act to the distributor of the petitioner, who disclosed that the same had been purchased from M/s. Maxima Health Care, Bagalkot. On enquiry with M/s.Maxima Health Care, it was informed that the original source of the said drug was from that of the petitioner. CRL.P.102391/2019 :4:
3. It is in the above background that the complaint was filed before the Principal District and Sessions Judge, Haveri under Section 200 of Cr.P.C and the Principal District and Sessions Judge, Haveri on 18.01.2019 took cognizance of above offences and issued summons to the petitioners. It is aggrieved by the same that the petitioners are before this Court contending that the Principal District and Sessions Judge, Haveri had no power under the Drugs and Cosmetics Act, 1940, to take cognizance of the offences. It only had jurisdiction to try the offence once it was committed to it. The original jurisdiction to take cognizance of the offences always rested with the Magistrate and it was the Magistrate to have committed the matter to the Sessions Court for trial.
4. On this background, Sri. Mallikarjunswamy B. Hiremath, learned counsel for the petitioners, CRL.P.102391/2019 :5: would submit that the entire proceedings which have been initiated on the basis of the complaint filed before the Principal District and Sessions Judge, which has taken cognizance is completely misconceived and liable to be quashed.
5. Per contra, Sri. Jeevan J. Neeralagi, learned AGA would submit that the Principal District and Sessions Judge, who is empowered to try the offence is also empowered to take cognizance of the matter, otherwise the entire theme of the Act designating the Senior Judicial Officer to try the matter would fail.
6. Be that as it may, the offences involved in the present matter are serious offences affecting the society as a whole, when the allegation against the petitioner is as regards manufacture and supply of sub-standard drugs. He further submits that the committal proceedings would only arise in the CRL.P.102391/2019 :6: event of the matter referred to the police or a complaint registered with the police. The same would not apply to a proceedings under Section 200 of the Cr.P.C., namely a private complaint, where it is the Principal District and Sessions Judge, who has to take cognizance of the offence and as such, he submits that the petition may be dismissed and the Principal District and Sessions Judge, be permitted to continue with the proceedings.
7. Heard Sri. Mallikarjunswamy B. Hiremath, learned counsel for the petitioners and Sri. Jeevan J. Neeralagi, learned AGA for the respondent.
8. For the purpose of this petition, it would not be required for this court to go into the nature of the offence or the impact of the offence. What is required to be seen is whether the procedure prescribed under the relevant legislation has been CRL.P.102391/2019 :7: followed or not, the said procedure being evolved in order to protect the interest of the citizen.
9. Section 36 AB of the Drugs and Cosmetics Act, 1940 provides for a special court to be established by the Central Government or State Government in consultation with the Chief Justice of the High Court for offences relating to adulterated drugs. It is in pursuance thereof that the Principal District and Sessions Judge, Haveri has been designated as a Special Court under Section 36AB of the Act.
10. Section 36AB is reproduced hereunder for easy reference:
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 (l) of section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Session as a Special Court or Special Courts for such area or areas or for such case or class or group CRL.P.102391/2019 :8: of cases as may be specified in the notification.
Explanation .--In this sub-section, "High Court" means the High Court of the State in which a Court of Session designated as Special Court was functioning immediately before such designation. (2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (l), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
11. A perusal of the said Section and/or the chapter under which the said Section is found, i.e., Chapter V, would indicate the provision only to establish the Special Court, the offences that could be tried by the Special Court and the methodology of the trial to be adopted by the Special Court. None of the provisions therein provide for the Special Court to take cognizance of an offence alleged in any complaint filed before it. Thus, in the absence thereof, the general law of criminal procedure is to be applied to ascertain as to which Court would have power to take cognizance of an offence. CRL.P.102391/2019 :9: Under the general law of criminal procedure, it is the Magistrate who has the jurisdiction to do so.
12. The Hon'ble Apex Court in the case of Gangula Ashok and Another Vs. State of Andhra Pradesh reported in 2002 SCC 504, while dealing with the Special Court constituted under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, held as under:
"Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; Sec.14 and 2(1)(d) Special Court: Held it is a court of session designated as special court, which is specified for trial of offences as distinguished for "inquiry" as defied under section 2(g) of Cr.PC. Therefore, it cannot take cognizance directly as a court of original jurisdiction without the case being committed to it by a Magistrate in view of section 193 Cr.P.C. Section 4 and 5 of Cr.p.C. do not indicate any departure from this position."
13. This Court while dealing with the power of the Special Court to take cognizance under the matter under the Karnataka Minor Mineral Concession Rules and Mines and Minerals (Development and CRL.P.102391/2019 : 10 : Regulations) Act, in Criminal Petition No.6279/2017 disposed of on 15.11.2017 in the case of Sri.Vivek and another Vs. The State of Karnataka and another, has held as under:
"28. Therefore, it is clear from the above that, the Session's Court designated as special court, has no jurisdiction to take cognizance directly of the offences under the MMRD Act and Rules. The cases can be tried only after the committal proceedings. "
14. In view thereof, though technical, it is required that the procedure prescribed under the Cr.P.C. is followed by all Courts. The Special Court could not have taken cognizance of the offences vide its order dated 18.01.2019. The Special Court ought to have directed the complainant to approach the Magistrate Court and filed the complaint before the Magistrate who would have to take cognizance, if permissible or if not, refer the matter to the Special Court to take cognizance and proceed with the matter.
CRL.P.102391/2019: 11 :
15. In view of the above, petition is partly allowed.
The order of cognizance taken by the Special Court on 18.01.2019 is quashed. The Special Court is directed to transfer the complaint to the Magistrate to take such action as required under law Sd/-
JUDGE gab