Kerala High Court
C.P.Udayadivakaran vs State Of Kerala on 13 February, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
TUESDAY, THE 21ST DAY OF AUGUST 2012/30TH SRAVANA 1934
Crl.MC.No. 1658 of 2012 (B)
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(S.C. NO. 611/2010 OF THE DISTRICT AND SESSIONS COURT, PALAKKAD)
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PETITIONER/ACCUSED NO.4:
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C.P.UDAYADIVAKARAN, AGED 63 YEARS
S/O. LATE KRISHNAPISHARADI, 'SWATHI'
BHAVAN NAGAR COLONY, KUNNATHURMEDU.P.O., PALAKKAD.
BY ADV. SRI.JACOB SEBASTIAN
RESPONDENTS/COMPLAINANT/STATE :
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA
ERNAKULAM
REPRESENTING THE DRUGS INSPECTOR
OFFICE OF THE DRUGS INSPECTOR, PALAKKAD.
BY ADDL. DGP SRI. TOM JOSE PADINJAREKKARA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
21-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
DCS
Crl.MC.No. 1658 of 2012 (B)
APPENDIX
PETITIONER(S) ANNEXURES :-
ANX.A1 A COPY OF THE COMPLAINT DATED 13-2-2006.
ANX.A2 A COPY OF THE SUMMONS IN S.C. NO. 611/2010 OF THE COURT OF
SESSION, PALAKKAD.
RESPONDENTS' ANNEXURES :- NIL
//TRUE COPY//
P.A. TO JUDGE
DCS
S.S.SATHEESACHANDRAN, J. C.R
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Crl.M.C No.1658 OF 2012
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Dated this the 21st day of August, 2012
ORDER
Petitioner is one among the accused in a pending case on the file of the Sessions Court, Palakkad. He is being prosecuted with some others for offences under the Drugs and Cosmetics Act, 1940, for short, 'the Act', on a complaint filed by the Drugs Inspector, Palakkad. Complaint was filed before the Chief Judicial Magistrate, Palakkad, who, after taking cognizance of the offences imputed, made over the case to the Judicial First Class Magistrate -II, Palakkad for trial. Pending the proceedings, the Act was amended, by which some offences under the Act are triable only by a Special Court. The Magistrate taking into account the amendment to the Act, committed the case to the Sessions Court for trial.
2. Annexure A1 is copy of the complaint, in which including the petitioner five persons are arrayed as accused for various offences under the Act. Crux of the allegation is that accused 1 to 3 and 5 conducted the sale of a drug which is not of standard Crl.M.C No.1658/2012 2 quality, and the petitioner, A4, failed to produce the purchase record of the drug and conducted the sale of that drug, not having standard quality. Accused numbers 1 to 3 and 5 violated the provisions covered by Section 18(a)(i) of the Act, which is punishable under Section 27(d) of the Act, and the petitioner, A4, violated Section 18(a)(i), 18A and 18B of the Act, punishable under Sections 27(d), 28 and 28A of the Act, is the accusation. After appearance of the accused before the magistrate, and pending trial, the Act was amended by Act 26 of 2008 with effect from 10.08.2009. By the amendment, constitution of a special court to try certain offences punishable under the Act was newly incorporated inserting Section 36AB in the Act. The magistrate thereupon noticing that some among the offences imputed against the petitioner are triable only by the special court, committed the case to the Court of Sessions, Palakkad. On such committal, summons was issued to the accused, numbering the case as S.C No.611/2012 on its file. Annexure A2 is the summons issued to the petitioner.
3. Petitioner has filed the above petition for quashing the criminal proceedings pending before the Sessions Court, Crl.M.C No.1658/2012 3 numbered as above, contending that the offences imputed under the Act at the time of commission were cognizable by the magistrate, and having taken congnizance thereof the trial of the case has to proceed before the magistrate. It is not liable to be committed on the basis of the amendment made inserting Section 36AB in the Act, though it speaks of constitution of a special court for trial of certain offences under the Act, is his case.
4. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. The main thrust of challenge canvassed by the counsel is that the special court has no jurisdiction to try the offences under the Act, which had been taken cognizance of by the magistrate before the amendment made under Act 26 of 2008 came into force. That will cause serious prejudice to the accused, submits the counsel. If the case is tried by the magistrate, any adverse decision rendered thereof is open to an appeal and also a revision, according to the counsel. But after the amendment made under Act 26 of 2008 and its application to pending cases before the Magistrate, the accused persons will be deprived of chance to file a revision against the decision rendered in appeal, submits the counsel. Every Crl.M.C No.1658/2012 4 amendment should be treated as prospective unless it has been specifically given retrospective effect, is the further submission of the counsel to contend that though Section 36AB has been inserted in the Act by Act 26 to 2008, where cognizance of the offence under the Act has already been taken by the Magistrate before the amendment came into effect, the trial has to continue before the magistrate. Learned counsel relied on "Zile Singh v State of Haryana and Others" (2004(8) SCC 1), "Basheer v State of Kerala" (AIR 2004 SC 2757) and National Commission of Women v State of Delhi and Another"
(2000(12) SCC 599) to contend that the amendment can be given only prospective effect, and pending cases under the Act before the magistrate are to be tried and disposed as before.
5. I do not find any merit in the submissions made by the counsel that the amendment to the Act brought in by Act 26 of 2008 so far as the trial of the offences in pending cases, even if such offences after the amendment are to be tried by the special court, can be given effect to only prospectively. Section 36AB of the Act, inserted by amendment under Act 26 of 2008, mandates of constitution of special courts for trial of certain offences Crl.M.C No.1658/2012 5 covered by the Act. Section 36AB of the Act reads thus:
"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 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."
Other than the offences referred to in Section 36AB of the Act, which are exclusively triable by the special court, the rest of the offences punishable under the Act can be taken cognizance of and tried by the magistrate as before. Amendment by inserting Section 36AB to the Act came into force from 10.8.2009. Once such an amendment has come into effect, and by notification a special court has been constituted, cases involving the offences Crl.M.C No.1658/2012 6 referred to under Section 36AB of the Act, whether its commission was before or after the amendment, if not already finally disposed of by the magistrate, can be tried only by that special court alone. On Annexure A1 complaint magistrate has taken cognizance and the case is pending trial before him, will not confer jurisdiction on the magistrate to proceed further with the trial of the case when by virtue of the amendment and insertion of Section 36AB, the offences involved, or any of them, are triable only by a special court. The accused proceeded in the case by the magistrate would lose a right of appeal or revision, even if that be so, will have no impact in considering the scope of amendment whether it is prospective or retrospective. So far as change or amendment to any forum or course of procedure none can claim any vested right. Where there is a change in law of forum or procedure, it operates retrospectively unless otherwise specifically provided of. The Supreme Court in "Hithendra Vishnu Takkur and Others"
(1994 (4) SCC 602)dilating on various aspects over the scope of an amending act and its representative operation has held thus:
"i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary Crl.M.C No.1658/2012 7 intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
6. So far as the forum even if it is changed midway by an amending Act, pending a proceeding, it cannot be contended that the party thereto has a vested right, to continue such proceedings where it was commenced. Change of forum by an amendment Act cannot amount to an invasion of the right of the accused except in a case where there is any objection by way of Crl.M.C No.1658/2012 8 discrimination or the failure of any other fundamental right. By amendment Act 26 of 2008 the magistrate has ceased to have jurisdiction to try the offences covered by Section 36AB of the Act even if such offences had been taken cognizance, as exclusive jurisdiction to try such offences has been conferred on a different forum, a special court. When that be so, such special court constituted as mandated under Section 36AB alone can try the offences referred to in that Section.
7. The decisions relied by the counsel in no way assist the petitioner to contend change of forum under the amendment Act after cognizance of the offence is taken can be given only prospective effect. In Zile Singh's case, referred to above, the effect of an amending Act in relation to the impact on a vested substantive right of a party was considered, and it was held such amendment has to be treated as prospective unless it is expressly or by necessary implication made to have a retrospective operation. That is not the case here. In Basheer's case referred to above, constitutional validity of the proviso to sub Section (1) of Section 41 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, which was challenged Crl.M.C No.1658/2012 9 as discriminatory arose for consideration. Challenge was repelled holding that cases which had already been tried and disposed of before the amendment have to be disposed in accordance with the provisions covered by the unamended Act. In National Commission of Women v State of Delhi and Another, the Supreme Court negativing the challenge canvassed by the petitioner in that case dilating upon the nonentertainability of the petition made an observation over the proviso added to Section 372 of the Code of Criminal Procedure. Observation made that the "proviso may not be applicable" to the facts of the case without anything more does not lay down any proposition or throw light on the effect of an amendment Act over the change of forum or procedure.
8. If the magistrate had disposed of the case finally after trial before amendment inserted under Section 36AB of the Act came into effect, then alone, the unamended Act can have application. Pending trial before the magistrate, amendment having been inserted under Section 36AB of the Act conferring exclusive jurisdiction on the special court over some offences of the Act, the magistrate has no jurisdiction to proceed with further Crl.M.C No.1658/2012 10 trial of the case involving such offences. If the offences under the Act taken cognizance of are shown to be exclusively triable by the special court, the magistrate has to commit the case, and that alone was done in the present case.
Challenge canvassed by the petitioner questioning the continuation of the proceedings before the Special Court on committal of the case by the magistrate, is devoid of any merit. Petition is dismissed.
vdv S.S.SATHEESACHANDRAN, JUDGE