Allahabad High Court
Harshit Dhing vs State Of U.P. And Another on 27 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:89957 Judgment Reserved On 28.04.2025 Judgment Delivered On 27.05.2025 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 7982 of 2025 Applicant :- Harshit Dhing Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dhiraj Singh, Ragvendra Singh Rathour Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
1. Heard Sri Tarun Kumar Mishra along with Dhiraj Singh, learned counsel for the applicant as well as Sri Sudhir Kumar Chandraul, learned AGA for the State.
2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, the application be decided on the basis of the documents available on record, thus, with the consent of the parties, the application is being decided at the fresh stage.
3. The present application under Section 528 of the BNSS has been preferred by the applicant who happens to be the proprietor of M/s Askon Healthcare, plot No. 11B, Industrial Area, Maxi Road, Ujjain, M.P. being aggrieved against the summoning order dated 14.02.2025 passed in Special Case No. 1418 of 2024 (State of U.P. v. Harshit Dhing and others) whereby the applicant was summoned under Section 17-A/18-B read with Section 27-b/ 28-A of Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the D & C Act, 1940') by the Court of Additional District & Sessions Judge No. 1 designated as Special Judge, Drugs and Cosmetics Act Cases, Hamirpur.
4. The case of the applicant is that the applicant possesses a statutory licence issued by Deputy Director and State Licensing Authority, Food and Drugs Administration Madhya Pradesh under the provisions of D & C Act, 1940. Applicant further claims to have 13 years experience in manufacturing drugs and there has been no complaint from any four corners of law.
5. As per the applicant, an inspection was conducted by the complainant/ opposite party No. 2 under the provisions of D & C Act in the premises of M/s Apna Medical Store, Hamirpur on 25.02.2023 and samples were drawn of the drug Betamethasone Sodium Phosphate I.P. 0.5 mg (Betaskon) which is alleged to have been manufactured by the applicant firm which was assigned an identification No. MKS/HMR/Feb/2023/4 and the same was forwarded to the Government Analyst, Lucknow Uttar Pradesh for testing in accordance with the provisions applicable to the D & C Act, 1940. The Government Analyst issued a test report, Form No. 13, No. R/966-23, dated 06.04.2023, wherein it was concluded that the aforesaid samples does not meet the standard of quality maintained under Indian Pharmacopoeia (I.P.), since the content of Betamethasone was 66.93% w/w which was less than the minimum I.P. limit of 90% w/w.
6. On 25.04.2023, the complainant/ opposite party no. 2 proceeded to issue a notice to the applicant seeking a reply while duly informing that the samples collected from the M/s Apna Medical Store, Hamirpur was found to be a non-standard quality by the Government Analyst and consequently, the applicant was directed to cease the sale of the specified batch of aforesaid drugs and information was sought under Section 18(A) of the D & C Act. Along-with the said notice, the copy of the original test report and sealed sample of the drug in question was also forwarded to the applicant. The applicant thereafter tendered reply on 25.05.2023 coming up with the stand that the said drug has at no point of time sold to M/s Apna Medical Store, Hamirpur as the same was not reflected in the record so a request was made to provide the chain of the sequence, by which it can be ascertained that how the said drug reached M/s Apna Medical Store, Hamirpur. Liberty was also reserved to adduce evidence with relation to the concerned test report of the Government Analyst. Thereafter on 28.06.2023, the complainant/opposite party No. 2 issued an additional notice requiring the applicant to provide clarification concerning the categorization of the drug. In the said notice, it was also recited that the M/s Apna Medical Store, Hamirpur procured the drug in question from Sub Medical Store, Banda which in turn was supplied by the firm Smriti Drugs, District Jhansi and Smriti Drugs procured the said drugs from Mani Pharma Ujjain. The said notice was replied by the applicant on 17.07.2023.
7. It was also the case of the applicant that the complainant itself visited the premises of the applicant and served a notice dated 06.06.2024 wherein certain information and inputs were required to be furnished by the applicant. The applicant responded to the same on 08.06.2024 while contesting the findings of Government Analyst in the report dated 06.04.2023 requesting a retesting of the remaining portion of the samples from Central Drug Laboratory (CDL) Kolkata in accordance with the provisions under Section 25(3) of the D & C Act, 1940. On request of the applicant, the remaining sample portion drugs were sent to CDL, Kolkata for testing under Section 25(3) of D & C Act by the order of learned Sessions Court on 13.06.2024 and the samples was tested by CDL, Kolkata and vide its report dated 26.06.2024, it was opined as under:
"Description: Pink coloured round flat uncoated tablets in aluminium foil strips Identification: Gives positive test for Betamethasone Sodium Phosphate.
Assay Found/ Tablet Claim/Tablet Limit
Betamethasone 0.4088 mg 0.5 mg 90% to 110% of claim
Sodium Phosphate (81.76% of claim)
Equi. to Betamethasone
Reason for declaring the sample as not of standard quality.
Remarks: The sample does not conform to I.P. with respect to 'Assay' of
'Betamethasone Sodiur Phosphate (Equi to Betamethasone)'."
8. In the light of the said events, the Drug Inspector, Food and Drugs Administration in the office of District Administration, Hamirpur proceeded to file a complaint under Section 17, 17-A read with Section 18(A)(1) punishable under Section 28 of the D & C Act. The said complaint was registered as Special Case No. 1418 of 2024 (State of U.P. v. Harshit Dhing and others) thereafter in accordance with the first proviso to Section 223 of the BNSS, the applicant was noticed. On 14.02.2025, the Court of Additional District and Sessions Judge/ Special Judge Drugs and Cosmetics Act, Hamirpur proceeded to summon the applicant under Section 17-A/18-B read with Section 27-b/ 28-A of Drugs and Cosmetics Act.
9. Questioning the summoning order, the applicant has filed the present application.
10. This Court on 11.03.2025 proceeded to grant interim protection and passed the following orders:
"1. Heard Sri Tarun Mishra, Advocate holding brief of Sri Dhiraj Singh, learned counsel for the applicant, Sri Pankaj Saxena, learned A.G.A for the State and perused the record.
2. The instant application under Section 528 BNSS has been filed for quashing the summoning order dated 14.02.2025 passed by arising out of Special Case No.1418 of 2024, under Sections 17-A/18-B r/w Section 27-b and 28-A of the Drugs and Cosmetic Act (hereinafter referred to as 'the Act'), pending in the court of Additional District & Sessions Judge-Ist/Special Judge, Drugs and Cosmetic Act, Hamirpur.
3. It has been submitted by learned counsel for the applicant that the impugned proceeding is absolutely erroneous as cognizance was directly taken by the Sessions Court without any committal though it should have been taken by the Magistrate. The Drugs and Cosmetic Act does not authorise the Sessions Court to take cognizance directly without committal by the concerned Magistrate.
4. In support of his contention, learned counsel for the applicant has relied upon the judgements of the Apex Court in the case of Union of India vs Ashok Kumar Sharma and others; 2020 INSC 517 and Gangula Ashok vs State of A.P.; AIR 2000 (SC) 740 and the judgement of Jammu and Kashmir High Court in the case of Bhanu Enterpises vs State of J & K and others; 2017 CriLJ 136. It is further submitted that the sample in question was not purchased by the Drug Inspector from concerned medical store, it was simply taken which is in violation of Section 23 of the Act. It is further submitted by counsel for the applicant that the applicant has been shown as manufacturer of the drug in question though he was not involved in any manner as alleged in the complaint and notice has been issued to him only because his name was found on the raper of drug in question as manufacturer.
5. Learned AGA vehemently opposed the prayer and contended that Section 460 Cr.P.C. clearly shows that if the Magistrate is not authorised to take cognizance, the proceeding cannot be quashed unless prejudice is shown to the applicant. He seeks one weeks time to seek instructions in the matter.
6. Put up this case on 24.03.2025 as fresh.
7. Till the next date of listing, no coercive action shall be taken against the applicant in the aforesaid case.
8. It is made clear that on the next date no adjournment shall be granted to either of the parties."
11. On 24.03.2025, the following orders were passed:
"1. Pursuant to the order dated 11.3.2025 the matter is before this Court.
2. Sri Sudhir Singh Chandraul, learned AGA has made a statement that though he has possessed with the instructions but he would like to file a response.
3. Let a response be filed by the learned AGA on behalf of opposite party no.2 by 10.4.2025 while giving copy of the reply in advance to the learned counsel for the applicant.
4. Learned counsel for the applicant shall file rejoinder affidavit to the same by 18.4.2025.
5. Put up this matter on 21.4.2025 as fresh.
6. Interim order, if any, is extended till 21.4.2025."
12. Thereafter on 21.04.2025, this Court proceeded to pass the following orders:
"1. Contention of the learned counsel for the applicant is that without there being any committal under Section 193 of the Cr.P.C., the Special Court could not have taken cognizance or tried the case. He seeks to rely upon the decision of the Hon'ble Apex Court in the case of Union of India Vs. Ashok Kumar Sharma: Criminal Appeal No. 200 of 2020 decided on 28.08.2020. He further submits that a perusal of Annexure-CA-1 and CA-2 of the counter affidavit itself reveal that the same purport to be under Section 36A-B of the Act, they do not in any manner whatsoever clothe the Special Court to try to take cognizance and to try the proceedings in absence of any committal under Section 193. He also seeks to argue on other factual aspects regarding the irregularity is sought to be committed in the entire proceedings which culminated into the order which is subject matter of challenge.
2. Sri Indrajeet Singh Yadav, learned AGA seeks time.
3. Time prayed for is granted.
4. Put up this case on 28.04.2025, as fresh.
5. Interim order, if any, is extended till the next date."
13. A counter affidavit on behalf of the opposite party no. 2 by the Drug Inspector and Food Safety Administration, District- Hamirpur dated 10.04.2025 to which a rejoinder affidavit has been filed.
14. Learned counsel for the applicant has submitted that the entire proceedings including the order dated 14.02.2025 passed by the Court of Additional District and Session Judge-I/ Special Judge Drugs and Cosmetics Act, Hamirpur summoning the applicant in Special Case No. 1418 of 2024 (State of U.P. v. Harshit Dhing and others), under Section 17-A/18-B read with Section 27-b/ 28-A of Drugs and Cosmetics Act cannot be sustained for a single moment for more than one reason. Elaborating the said submission, it is contended that there is no provision under the D & C Act, wherein the power to take cognizance for offence under the Act has been vested to the designated court, the court of Sessions without the case being committed to it by the respective Jurisdictional Magistrate, thus, the Sessions Court could not have proceeded with the matter while taking cognizance and summoning the applicant. In order to buttress the submission, reliance has been placed upon the judgment of Hon'ble apex court in the case of Union of India v. Ashok Kumar Sharma and others AIR 2020 SC 5274 and a judgment of Madhya Pradesh High Court at Indore in Misc. Criminal Case No. 133 of 2023; M/s Ipcan Generic Health Care Pvt. Ltd. v. The State of Madhya Pradesh decided on 15.04.2024.
15. Further submission is that Section 23 of the D & C Act provides for procedures which are to be adopted when an inspector takes a sample of drug or a cosmetics under the chapter, according to which, he shall tender the fair price thereof and may require an acknowledgement therefrom and where the price tendered under sub-section (1) is refused or where the Inspector seizes the stock of any drug or cosmetics under clause (c) of Section 22 then he shall tender a receipt thereon in the prescribed form. Submission is that Rule 56 of the Drugs Rules, 1945 itself provides for a form of intimation of purpose of taking samples and Rule 56A further provides for the form of receipt of sample where the fair price tendered is refused. Reference has also been made to Rule 145-A being the form for intimation for purposes of taking samples of cosmetics also and it has been further contended that form 17 under Rule 56 and 145A itself provides a format regarding intimation to persons from whom sample was taken and Form17A under Rule 56A and 145AA also provides for receipt of sample of drug taken where the fair price tendered thereof under subsection (1) of Section 23 of the D & C Act is refused. Contention is that in the present case, the Drug Inspector failed to tender the price for medicine to M/s Apna Medical Store from where the sample was collected. Thus, the mandatory provisions under Section 23 of the D & C Act stood violated making the entire proceedings vitiated since very inception. Reliance has been placed upon a judgment of the Rajasthan High Court, Jaipur Bench in S.B. Criminal Misc. Petition No. 445 of 2005 (Vaikuntha Pandurang Prabhu and others. v. State of Rajasthan) decided on 09.08.2011.
16. It is next contended that the court below while summoning the applicant has completely overlooked the crucial fact that there was nothing on record to show linkage between the applicant firm with regard to the subject batch of drug being supplied to M/s Apna Medical Store. Submission is that though the applicant's firm manufacturers the said drugs but there are various intermediaries in between being wholesalers, retailers, CFL agent etc., thus the complainant was under obligation to show the linkage of transfer of the drug from the applicant-firm to M/s Apna Medical Store. Emphasis has been laid to the fact that in the complaint itself, it has been recited that the samples were drawn from M/s Apna Medical Store, Hamirpur on 25.02.2023 and on 04.05.2023 M/s Apna Medical Store had informed the complainant that the said drug was purchased on 04.02.2023 from M/s Sub-Medical Store, Banda and thereafter information was sought from M/s Sub-Medical Store, Banda under Section 18A of the D & C Act on 04.05.2023, which was replied on 12.05.2023 and 25.05.2023 that the subject drug in question was purchased from M/s Smriti Drugs, Jhansi on 07.11.2022. On a notice issued under Section 18A of the D & C Act M/s Smriti Medical Store, Jhansi, it replied on 31.05.2023 that the said drug was purchased from M/s Mani Pharma, Ujjain on 20.10.2022, however, M/s Mani Pharma, Ujjain on being asked the source from where the said purchase was made, did not give any reply.
17. Argument is that once M/s Mani Pharma did not disclose the source from where it purchased the drug then the entire sequence and the chain stood extinguished and thus the applicant cannot be said have committed the said offence, particularly, when it is the consistent stand of the applicant-firm that it had never supplied the drug to M/s Apna Medical Store. It is thus contended that the prosecution even on the face of the complainant cannot insist for putting the motion the criminal action against the applicant. Reference has been made to the judgment of the Madhya Pradesh High Court, Jabalpur Bench in Mehli Pestonji Poncha Sea Kist Shareholders of Balsara Hygiene Products Ltd. v. State of M.P.; M.Cr.C. No. 6228 dated 16.01.2001.
18. It is also contended that the entire basis of the complaint lodged by the opposite party no. 2/ complainant against the applicant hinges upon the report of the Government Analyst, U.P. at Lucknow dated 06.04.2023 which observed that the content of Betamethasone was 66.93% w/w against the minimum I.P. limit of 90% w/w., while overlooking the crucial fact that there happened to be a report of Central Drug Laboratory, Kolkata dated 26.06.2024 wherein it was observed that active ingredient Betamethasone which was present at level of 81.76%. Contention is that with the changed circumstances relatable to the existence of the report of Central Drug Laboratory, Kolkata, the complaint ought to have been filed on the basis of subsequent report and not of the report which has lost his efficacy, thus, it is submitted that the very basis of the theory propounded by the applicant itself was eroded.
19. It has also been contended that in exercise of the powers under Section 33-P of the D & C Act, guidelines were issued on 26.11.2010 providing for taking action on the sample of the drug declared spurious and not of the standard quality in the light of the imitation drugs under Drugs and Cosmetics (Amendment) Act, 2008. Contention is that the case of the applicant does not fall within the category of spurious and imitation drugs even if the case of the prosecution is taken to its face value (though the prosecution has no case at all). According to the learned counsel for the applicant, there has been non-compliance of the guidelines dated 26.11.2010 which provides for certain steps which are to be taken at the end of the Drug Administration which also refers to non-taking of stringent action. With regard to the applicability of the provisions under Section 17-A/18-B read with Section 27-b/ 28-A of Drugs and Cosmetics Act, it is contended that none of the provisions stand attracted in the case of the applicant.
20. Countering the submissions so made by learned counsel for the applicant, Shri Sudhir Kumar Chandraul, learned AGA has submitted that the order dated 14.02.2025 summoning the applicant is perfectly valid in accordance with law and no fault whatsoever can be attributed in this regard. It is contended that in exercise of the powers conferred under Section 36 A&B of the D & C Act, a notification came to be issued by the State Government on 25.11.2019 whereby the Additional District and Sessions Judge, 7th of each district and where such Court is not existing Additional District and Sessions Judge, was designated as the special court within their respective jurisdiction of trial of the offences specified under sub-section (1) of Section 36A&B of the D & C Act. Submission is that the Special Court is competent to take cognizance and to try the proceedings. It is also submitted that the issues which the applicant seeks to raise regarding alleged missing chain of the events and the sequence linking the supply of the drug by the applicant to M/s Apna Medical Store is concerned, the same is a matter of trial which would need consideration at this stage when decision is to be taken for acquittal or conviction. Likewise also, the fact of alleged non-compliance of Section 23 of the D & C Act for non-offering of the price of the sample is also an issue which is subject of trial. According to him, whatever arguments are being sought to be raised they are the matter of defences consideration whereof would only arise when the trial commences. Thus, according to him, the present application deserves dismissal.
21. I have heard learned counsel for the parties and gone through the records carefully.
22. The first and the foremost question which arises for consideration which also goes to the root of the matter is regarding the jurisdiction of Additional District & Sessions Judge No. 1 designated as Special Judge, Drugs and Cosmetics Act Cases, Hamirpur in taking cognizance of the matter and summoning the applicant. Though the learned counsel for the applicant submits that in view of Section 193 of the Cr.P.C./ 213 of the BNSS, no Court of Sessions shall take cognizance of the offence unless the case is committed to it by the Magistrate but on the other hand learned AGA while disputing it submitted that there already exist a notification issued on 25.11.2019 under Section 36-AB empowering the Special Judge, the Court of Sessions Judge to take cognizance irrespective of Section 193 of the Cr.P.C./ 213 of the BNSS.
23. At this juncture, it would apposite to extract the relevant statutory provisions which would be bearing the issue in question:
Cr.P.C.
Section 193 Cr.P.C.
"193. 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 the case has been committed to it by a Magistrate under this Code."
BNSS Section 213 BNSS "213. Cognizance of offences by Court of Session. - Except as otherwise expressly provided by this Sanhita 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 the case has been committed to it by a Magistrate under this Sanhita."
D & C Act, 1940 "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 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.
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 (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial."
24. A perusal of Section 193 of the Cr.P.C. which is pari materia of Section 213 BNSS would reveal that except as otherwise provided by any act or other law for the time being enforced, no Court of Sessions shall take cognizance of any offence of the Court of original jurisdiction unless the case has been committed to it by the Jurisdictional Magistrate.
25. Apparently, there is no provision either explicitly or by necessary implication which mandates that the Special Court of Sessions can take cognizance without the case being committed to it by the respective Magistrate. Thus, what would be relevant, would be the application of Section 193 Cr.P.C./ 213 BNSS which provides that no Court of Sessions shall take cognizance or Court of original jurisdiction unless the case has been committed by the Magistrate under the Court.
26. Though on the strength of the assertions made in the counter affidavit filed on behalf of the opposite party No. 2 dated 10.04.2025, it has been contended that a notification stood issued on 25.11.2019 but a perusal of the same would reveal that the same had been issued in terms of Section 36 AB of D & C Act which deals with the trial of the offences and not with the issue relatable to taking of cognizance. For the ready reference, the notification dated 25.11.2019 is quoted hereinunder:
"औषधि और प्रसाधन सामग्री अधिनियम, 2006 (अधिनियम संख्या 34 वर्ष 2008) की धारा 36-क ख की उपधारा (1) के अधीन शक्तियों का प्रयोग करके, राज्यपाल, उच्च न्यायालय, इलाहाबाद से परामर्श करने के पश्चात् अधिसूचना संख्या-1193/सात-न्याय-2-2011-38जी/10, दिनाँक 05 अगस्त, 2011 को अधिकांत करती है और प्रत्येक जिला के लिये सप्तम अपर जिला एवं सत्र न्यायाधीश तथा जहाँ ऐसा न्यायालय न हो, वहाँ वरिष्ठतम अपर जिला एवं सत्र न्यायाधीश न्यायालय को विशेष न्यायालय के रूप में उक्त अधिनियम की धारा 36-क ख की उपधारा (1) के अधीन निर्दिष्ट अपराधों के विचारण के प्रयोजन के लिये उनकी अपनी-अपनी अधिकारिता के भीतर अभिहित करती है।"
27. The issue as to whether the case is to be committed to the Court of Sessions by the Jurisdictional Magistrate or not is no more res integra as the Hon'ble Apex Court in Union of India (supra) has observed as under:
"40. Section 32 of the Act undoubtedly provides for taking cognizance of the offence by the court only at the instance of the four categories mentioned therein. They are: (a) Inspector under the Act; (b) Any Gazetted Officer empowered by the Central or the State Government; (c) Aggrieved person; and (d) Voluntary Association. It is clear that the Legislature has not included the Police Officer as a person who can move the court. Before the matter reaches the court, under Section 190 of the CrPC, ordinarily starting with the lodging of the first information report leading to the registration of the first information report, investigation is carried out culminating in a report under Section 173. The Police Report, in fact, is the Report submitted under Section 173 of the CrPC to the court. Under Section 190 of the CrPC, the court may take cognizance on the basis of the police report. Such a procedure is alien to Section 32 of the Act. In other words, it is not open to the Police Officer to submit a report under Section 173 of the CrPC in regard to an offence under Chapter IV of the Act under Section 32. In regard to offences contemplated under Section 32(3), the Police Officer may have power as per the concerned provisions. 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 Sessions shall try offence punishable under Chapter IV. We have noticed that under Section 193 of the CrPC, no Court of Sessions can take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the CrPC. This is, undoubtedly, subject to the law providing expressly that that Court of Sessions 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 Sessions to take cognizance of the offence under Chapter IV. This means that the provisions of Chapters XV and XVI of the 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."
28. In M/s Ipcan Generic Health Care Pvt. Ltd. (supra), the same issue fell for consideration wherein in para-13, the following was observed as under:
"In the Drugs and Cosmetics Act, 1940, there is no such provision mentioned that mandates that a Special Court/ Court of Session can directly take cognizance of any specified offence, or perform the functions of a Magistrate under Section 207 of the Cr.P.C. and proceed to try the case as if the case had been committed to the Court of Session for trial. As such, inasmuch as no provision or amendment like the aforesaid provisions has been mandated or amended in the provisions of the Act, 1940, the Special Court under this Act as a Court of Session cannot take cognizance without the case being committed to it for trial. On this aspect, the view of the Hon'ble Supreme Court in Union of India Vs. Ashok Kumar Sharma and others, (2021) 12 SCC 674, is propitious to produce here-
"40.........It is to be noted that Section 32 declares that no court inferior to the Court of Sessions shall try offence punishable under Chapter IV. We have noticed that under Section 193 of the CrPC, no Court of Sessions can take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the CrPC. This is, undoubtedly, subject to the law providing expressly that that Court of Sessions 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 Sessions to take cognizance of the offence under Chapter IV........"
29. Interestingly, the notification so relied upon by learned AGA dated 25.11.2019 sources its powers from Section 36 AB of the Act which deals with trial of offences and not cognizance, thus, the said notification would not in any manner whatsoever apply so as to denude the applicability of Section 193 of the Cr.P.C./ 213 BNSS. Thus it can be safely said that without there being case committed by the Jurisdictional Magistrate under Section 193 Cr.P.C./ Section 213 BNSS, 2023, the special court does not possess jurisdiction to take cognizance.
30. Importantly, in the present case, there is nothing on record to show that the case was committed by the Jurisdictional Magistrate to the Court of Additional District and Sessions Judge-I, Special Judge Drugs and Cosmetics Act, Hamirpur, thus, the summoning order stands vitiated.
31. So far as the contentions raised by the learned counsel for the applicant that no proceedings could have been initiated or continued culminating into an order summoning the applicant, particularly, when there was a silence on the part of M/s Mani Pharma, Ujjain disclosing the source from where it had procured the sub-drug is concerned, this Court is not required to go into the said aspect at this stage in the present proceedings, particularly, when the Court of Sessions and designated Court was not within its jurisdiction to have taken cognizance and summoned the applicant in absence of case being committed by the Magistrate. Thus, these are the issues which may have their own effect and strength when the case proceeds as per the per the provisions of the statute.
32. With respect to the argument sought to be canvassed by the learned counsel for the applicant that there has been violation of the mandatory provisions contained under Section 23 of the D & C Act while taking samples and not offering the price is also an issue which need not be addressed at this stage as the said issue if raised, is to be considered on its own strength at an appropriate stage and not at this stage when it has been held that the Sessions Court/ Special Court had no jurisdiction to proceed with the matter in the absence of committal of the case to the Judicial Magistrate to it.
33. Likewise the issue that the complaint is not maintainable, since it proceeds upon the report of the Government Analyst, U.P. Lucknow and not upon the report of the Central Drug Laboratory, Kolkata dated 26.06.2024 which showed the changed circumstances is concerned, the same is also not required to be addressed in the present proceedings at this stage on the count that there is jurisdictional infirmity as noticed above.
34. As regards, the contention that there had been non-adherence to the guidelines dated 26.11.2010 which is being stated to have been issued under Section 33P of the D&C Act is concerned, this Court is not going into the said issue as in the present proceedings, the occasion to consider the said issue has not arisen, particularly, there is no order of committal.
35. Nevertheless, these issues are left open to be raised at an appropriate stage and proceedings as and when the same occasions.
36. Analysing from the case from the four corners of law, this Court is the opinion that the order dated 14.02.2025 passed by the Court of Additional District and Sessions Judge-I, Special Judge Drugs and Cosmetics Act, Hamirpur summoning the applicant in Special Case No. 1418 of 2024, under Sections 17-A/18-B read with Section 27-b/ 28-A of D & C Act cannot be sustained and it is liable to be set aside.
37. Accordingly, the application is disposed off in following manner:
(a) The order dated 14.02.2025 summoning the applicant in Special Case No. 1418 of 2024 (State of U.P. v. Harshit Dhing and others) under Section 17-A/18-B read with Section 27-b/ 28-A of D & C Act is set aside.
(b) The complaint along with necessary papers be returned to the complainant by the Court of Additional District & Sessions Judge No. 1 designated as Special Judge, Drugs and Cosmetics Act Cases, Hamirpur with a direction to file it before the Jurisdictional Magistrate.
(c) The Jurisdictional Magistrate shall pass appropriate orders strictly in accordance with law as per the provisions of the statute.
38. It is made clear that the observations made hereinabove shall remain confined to disposal of the application only, would have no effect, whatsoever in the merits of the case and it shall be open to the parties to take all legal or factual issues which are available under law.
Order Date :- 27.05.2025 A. Prajapati (Vikas Budhwar, J.)