Karnataka High Court
G Mallikarjuna S/O. G Shamanna vs State At The Instance Of on 21 September, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21 S T DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.2836 OF 2013
BETWEEN
G.MALLIKARJUNA S/O. SHAMANNA
H NO. 111, JOGA VILLAGE
VADDU PANCHAYAT
SANDUR TALUK, DIST: BELLARY
... APPELLANT
(BY SRI. G. DESU REDDY, ADV.)
AND
STATE AT THE INSTANCE OF
DRUGS INSPECTOR,
BELLARY CIRCLE, BELLARY
REPRESENTED BY SPP
HIGH COURT BUILDING
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE PASSED BY THE PRL. SESSIONS
JUDGE/SPL. JUDGE, BELLARY, IN SPL. CASE NO.29/2012, VIDE
2
JUDGMENT DATED 11.11.2013 AND FURTHER BE TO ACQUIT
THE APPELLANT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been filed by the accused under Section 374(2) of CR.P.C. Challenging the judgment of conviction and order of sentence passed by the learned Prl. Sessions Judge/Special Judge, Bellary in Spl. Case No.29/2012 dated 11.11.2013.
2. The facts of the case in brief are that PW.1 (CW2)-G.P.Raviprasad, the then Asst. Drugs Controller, Bellary Circle, Bellary, on receipt of the written complaint about appellant practicing allopathic medicine at Joga village without any qualification and stocking and distributing Allopathic Drugs without any valid license, on 30.04.2009, PW1 (CW.2) along with panchas 3 PW.5(CW.3)-Ravi Kumar, PW.3(CW.4)-Shivarudra gouda went to the spot and found presence of accused at the premises. On enquiry, it was noticed that appellant practicing Allopathic System of Medicine without any qualification and registration. On search of the premises he found huge quantity of Allopathic Medicines stocked without valid license, then the complainant drew one drug namely Fenak Plus Tablets manufacturer by M/s Anku Drugs and Pharma Limited Makhnu Majra village, Nalagarh Taluk, Solan District, Himachal Pradesh for Test or Analysis as per the procedure in Form No.17 and Appellant accepted the fair amount of Rs.294/- towards the cost of drugs from PW-1(CW.2) and passed receipt and PW1(CW.2) entered remaining drugs in Form No.16 under Mahazar in presence of panchas. Permission from the leaned JMFC Kudligi was obtained to retain the same until completion of 4 investigation. Seized drugs Fenak Plus Tablets one portion sent to the Government Analyst, Drugs Testing Laboratory, Bengaluru along with original Form No.18 on 30.04.2009 for the purpose of test/analysis as per the provisions of the Act and Rules there under duplicate Form No.18 was sent to Government Analyst with acknowledgement due. On 24.10.2009 the CW.2 received a certificate of analysis in Form No.13 mentioning the drug sent to be Standard quality. The PW.1 (CW.2) also sent one copy of Test Report to Appellant under Letter dated 02.11.2009 with acknowledgement due. The premises where the appellant had stocked the drugs were found to be of Smt.Kamalamma. The appellant under the circumstances committed the offences under Section 18(c) and 18A of the Drugs and Cosmetics Act,1940 (for short " the Act"). Appellant did not disclosed the manufacturer of the Drugs in 5 question as required under Section 22(1)(CCA). The Drugs Controller accorded permission for the State of Karnataka by order dated 26.07.2010. On the complaint made by the Assistant Drugs Inspector, Bellary, the learned Sessions/Special Judge was pleased to take cognizance of the offence and was pleased to frame charges and the appellant pleaded not guilty but claimed to be tried.
3. The prosecution to prove its case got examined the eight witnesses as PW.1 to PW8 and got marked the documents as Ex.P.1 to P.23 and also got marked the material objects as M.O.1 to M.O.3 and closed the evidence.
4. The learned Sessions Judge/Special Judge was pleased to record the statement of the appellant-accused under section 313 of Cr.P.C. After conclusion of the trial, the learned Sessions 6 Judge/Special Judge convicted the appellant vide judgment dated 11.11.2013 for violation of Section 18(c) 18-A and 22(1)(cca) of Drugs and Cosmetics Act, 1940, punishable under Section 27(b)(ii) and 28 and 22(3) of Drugs and Cosmetics Act, 1940 and sentenced to undergo rigorous imprisonment for one year and to pay the fine of Rs.1,000/- and in default of payment of fine shall undergo further simple imprisonment for a period of 3 months for offence under Section 18(c) of the Drugs and Cosmetics Act and further sentenced to pay a fine of Rs.1,000/- and in default of payment of fine shall undergo further simple imprisonment for a period of 3 months for the offence under Section 18(a) of Drugs and Cosmetics Act and further sentenced to undergo rigorous imprisonment for a period of 6 months and to pay fine of Rs.2,000/- and in default of payment of fine shall undergo further simple imprisonment for 7 a period of 2 months for the offence under Section 22(1)(cca) of Drugs and Cosmetics Act. The substantive portion of sentence imposed shall run concurrently.
5. Heard the learned counsel for the appellant and learned HCGP for respondent-State.
6. The learned counsel for the appellant submits that the date of offence is 30.04.2009 and as on that day judicial Magistrate First Class was having jurisdiction to try the offence leveled against the appellant-accused, as per Section 32(2) of Drugs and Cosmetics Act, 1940. It is his further submission that Special Court was notified as per provisions contained in Section 36AB and the said provision contained under Section 36AB came to be inserted in the Act by amendment Act No.26/2008 with effect from 10.08.2009. Therefore, the Special Court gets the jurisdiction 8 to try the offence enumerated in Section 36AB. It is his further submission that even though, the offence is dated 30.04.2009 which is prior to coming into effect of amendment Act No.26/2008, the complainant has presented the complaint before the Special Court established under Section 36AB and therefore, it is not empowered/not having jurisdiction to try the appellant-accused and therefore, the proceedings before the Special Court are void as per Section 436(l).
7. Per contra, the learned HCGP submitted that as on the date of filing the complaint, the Special Court notified under Section 36AB was having jurisdiction. There is no irregularity in the proceedings conducted by the Special Court and places reliance on the decision of the Hon'ble Apex Court in the case of State of Karnataka V/s Kuppuswamy Gownder and others, reported in (1987)2 SCC 74. It is her further submission 9 that Sessions Court is having powers of the Magistrate and therefore, the proceeding conducted before it is not void.
8. As the point of jurisdiction has been raised, the appeal is considered only in respect of jurisdiction of Special Court which tried the case.
9. Considering the submission of the learned counsel for the appellant-accused and learned HCGP, the following point arise for my consideration:
Whether the Special Court notified under Section 36AB of Drugs and Cosmetics Act, 1940 was not empowered by Law to try the case?
10. Section 36AB of the Drugs and Cosmetics Act, 1940 came to be inserted by way of amendment Act No.26/2008. The said section 36AB for better understanding is extracted as under: 10
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.
11. The said amendment act No.26/2008 was brought into force from 10.08.2009 by Gazette Notification dated 10.08.2009. In exercise of 11 powers confirmed by Section 36AB(1) of Drugs and Cosmetics Amendment Act, 2008, Government of Karnataka with the concurrence of the Hon'ble Chief Justice of High Court of Karnataka constituted Special Courts as per notification dated 18.03.2010 bearing No. HFW 38 IMM 2010. Under the said notification, District and Sessions Court, Koppal was designated as Special Court for Koppal district to try the offences enumerated in Section 36AB of Drugs and Cosmetics Act, 1940. Therefore, the Special Court Koppal established under Section 36AB under the above said notification came to be established on 18.03.2010.
12. The date of the alleged offences is 30.04.2009. As on the said date offence under the Drugs and Cosmetics Act, 1940 contained in chapter-IV are triable by a Metropolitan Magistrate or judicial Magistrate of First Class as per Section 32(2) of the Act, which reads thus:
"32.. Cognizance of offences --12
(1) No prosecution under this Chapter shall be instituted except by an Inspector (or by the person aggrieved or by a recognized consumer association whether such person is a member of that association or not).
(2) No court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the first class 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."
Therefore, it is the judicial Magistrate first class who was empowered to take cognizance of offence contained in Chapter-IV of Drugs and Cosmetics Act, 1940. Therefore, the Special Court is not empowered to take cognizance and try the offender as on the date of offence i.e. on 30.04.2009.
13. The learned HCGP has submitted that there is no inherent lack of jurisdiction and it is only mere irregularity which can be cured by Section 465 of Cr.P.C. Irregularity 13 which vitiating proceedings are provided under Section 461 of Cr.P.C. As per clause (l) of Section 461 of Cr.P.C., if any Magistrate not being empowered by law in that behalf, if tries an offender proceedings shall be void. The plane reading of this provision shows that the proceedings held by Magistrate to the extent that he is not empowered by law would be void and void proceedings can not be validated under Section 465 of Cr.P.C. This aspect is not a mere irregularity and a conviction of appellants cannot even if sustainable on the evidence be upheld under Section 465 of Cr.P.C. The same has been considered by the Hon'ble Apex Court in the case of Nithinbhai Saevatilal Shah and another Vs. Manubhai Manjibhai Panchal and another, reported in (2011) 9 SCC 638 observed thus:
"23. Section 461 of the new Code narrates irregularities which vitiate proceedings. The relevant provision is Clause (l). It reads as follows:-14
"461. Irregularities which vitiate proceedings:- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely;
x x x x x
(l) tries an offender;
x x x x x
his proceedings shall be void."
A plain reading of this provision shows that the proceedings held by a Magistrate, to the extent that he is not empowered by law, would be void and void proceedings cannot be validated under Section 465 of the Code. This defect is not a mere irregularity and the conviction of the appellants cannot, even if sustainable on the evidence, be upheld under Section 465."
14. The date of offence is 30.0.2009. As on that date the learned judicial Magistrate First Class was empowered to take cognizance and try the offender as per Section 32(2) of Drugs and Cosmetics Act, 1940. Therefore, the trial by Special Court is void proceedings and void proceedings cannot be validated under Section 465 of Cr.P.C.
15
15. The complaint has been filed under Section 200 of Cr.P.C. Section 201 of Cr.P.C. provides for return of the complaint for presentation to the proper Court if the complaint is made to Magistrate who is not competent to take cognizance of the offence. Therefore, the complaint filed by the Drugs Inspector requires to be returned to him for presentation to proper Court having jurisdiction.
16. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence passed in Special Case No.29/2012 by Prl. District and Sessions Judge, Ballari dated 11.11.2013 is set aside. The matter is remanded to the Prl. District and Sessions Judge/Special Judge, Ballari with a direction to return the complaint and material objects to the Drugs Inspector, Ballari Circle, Ballari for presenting the same to the Court having jurisdiction.
Sd/-
JUDGE Hm b