Gujarat High Court
M/S Mahadev Sales Agency (Firm) vs State Of Gujarat on 23 April, 2025
NEUTRAL CITATION
R/SCR.A/7792/2019 ORDER DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7792 of 2019
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M/S MAHADEV SALES AGENCY (FIRM) & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SP KOTIA(5687) for the Applicant(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 2
MR. SOHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 23/04/2025
ORAL ORDER
1. Heard learned advocate Mr. S.P. Kotia for the petitioners and learned APP Mr. Soham Joshi for the respondent-State. Though served, none remained present for the respondent No.2
2. Instant petition is filed for the following reliefs:-
"A) Your Lordship may be pleased to admit this petition.
(B) Your Lordship may be pleased to quash and set aside order with Exh.9 in D.R.C.M. case No.02/2016 by 3rd Addl. Sessions Judge, Bhavnagar on dated 28-02-2019.
(C) Your Lordship may be pleased to quash and set aside the order under Exh.1 in Criminal Case No.2943/2015, dated 04-10-2016 by learned Chief Judi. Magistrate, Bhavnagar.
(D) Pending herein, admission of the present application, Your Lordship may be pleased to grant ad- interim relief by staying the proceedings pending before 3rd Addl.
Sessions Judge, Bhavnagar in D.R.C.M. case No.02/2016, Page 1 of 7 Uploaded by MANISH MISHRA(HC01776) on Thu May 01 2025 Downloaded on : Sat May 03 11:25:44 IST 2025 NEUTRAL CITATION R/SCR.A/7792/2019 ORDER DATED: 23/04/2025 undefined until the final disposal of the present petition, in the interest of justice."
BRIEF FACTS:-
3. The present petition has been filed by the petitioners for quashing and setting aside the order dated 04.10.2016 passed by the learned Chief Judicial Magistrate, Bhavnagar, below Exh.1 in Criminal Case No. 2943/2015, whereby the said case was transferred from the Court of Chief Judicial Magistrate to the District Court, Bhavnagar. Upon transfer, the case was renumbered as D.R.C.M. Case No. 2/2016.
3.1. Subsequently, the petitioners filed an application at Exh.9 before the District Court, challenging the jurisdiction and the powers to take cognizance, which came to be rejected by the learned 3rd Additional Sessions Judge, Bhavnagar, by order dated 28.02.2019.
3.2. The proceedings arose from a complaint lodged by respondent no.2 against the petitioners and their firm on 21.05.2015, under Sections 18(c), 18(a)(1), 18(A), 27(b)(ii), 27(c), and 28 of the Drugs and Cosmetics Act, 1940. On presentation of the complaint under Section 190 of the Cr.P.C., the learned Magistrate took cognizance and directed issuance of process on the same date.
3.3. It is the case of the petitioners that after taking cognizance and issuing process, the Court became functus officio and could not thereafter transfer the case to a higher court merely based on Page 2 of 7 Uploaded by MANISH MISHRA(HC01776) on Thu May 01 2025 Downloaded on : Sat May 03 11:25:44 IST 2025 NEUTRAL CITATION R/SCR.A/7792/2019 ORDER DATED: 23/04/2025 undefined administrative notifications. It is further contended that under Section 200 Cr.P.C., after issuing process if Court found that it lacks jurisdiction to take cognizance, it has to return complaint to be filed before Commissioner Court but cannot transfer to Special Court.
3.4. The petitioners have, therefore, approached this Hon'ble Court challenging the orders dated 04.10.2016 and 28.02.2019, as being bad in law, illegal, and without jurisdiction.
SUBMISSIONS OF THE PETITIONER:-
4. Learned advocate Mr. S.P. Kotia, appearing on behalf of the petitioners, impugns the impugned order at Annexure B on the jurisdictional premise that the learned Chief Judicial Magistrate, Bhavnagar lacks the requisite authority to transfer the criminal case to the Special Court in the absence of any specific enabling provision in the Code of Criminal Procedure.
4.1. The learned counsel further contended that even the District and Sessions Judge, Bhavnagar is devoid of authority to issue any notification directing the Chief Judicial Magistrate, Bhavnagar to effectuate the transfer of a criminal case instituted under the provisions of The Drugs and Cosmetics Act, 1940 (for the brevity, 'the Act'), particularly in light of the statutory embargo enshrined in Section 201 of the Code of Criminal Procedure. Under the said provision, the learned Chief Judicial Magistrate, being incompetent to assume cognizance, is statutorily mandated to return the complaint for presentation before the appropriate judicial forum.
4.2. The learned advocate thus vehemently submitted that the Page 3 of 7 Uploaded by MANISH MISHRA(HC01776) on Thu May 01 2025 Downloaded on : Sat May 03 11:25:44 IST 2025 NEUTRAL CITATION R/SCR.A/7792/2019 ORDER DATED: 23/04/2025 undefined concept of transfer of criminal cases, as attempted in the present matter, is wholly alien to the scheme of the Code of Criminal Procedure and therefore, ultra vires.
4.3. Learned advocate Mr. Kotita, referring to Section 461A of the Cr.P.C., submitted that if the Court is not competent to take cognizance, all subsequent proceedings would be vitiated ab initio and therefore prayed that the impugned order be quashed and Criminal Case No. 2943 of 2015 be remanded to the Court of the Chief Judicial Magistrate, Bhavnagar.
SUBMISSION OF THE RESPONDENT:-
5. Per contra, learned APP Mr. Soham Joshi, placing reliance on the judgment of the Madhya Pradesh High Court in the case of Kalptaru Medicose Thru. Narayan Prasad v. Food And Drug Administration Thru. Ashok Goyal reported in LAWS(MPH)-2017-1- 126, submitted that there exists a fundamental distinction between taking cognizance and conducting trial of an offense. He contended that while the learned JMFC lacks jurisdiction to take cognizance, the transfer of the case to the learned Sessions Judge was necessitated as the trial must be conducted by the Special Court. He further submitted that no procedural irregularity has occurred and therefore prayed for the dismissal of the present petition.
FINDINGS OF THE COURT:-
6. Having heard the learned counsel for both parties and upon perusal of the record, I may refer to paragraph 5 of the impugned Page 4 of 7 Uploaded by MANISH MISHRA(HC01776) on Thu May 01 2025 Downloaded on : Sat May 03 11:25:44 IST 2025 NEUTRAL CITATION R/SCR.A/7792/2019 ORDER DATED: 23/04/2025 undefined order at Annexure B wherein the learned Sessions Judge has delineated the following rationale:-
"5.Now, first of all, I would like to deal with the submissions of learned APP, whether this Court can send back the matter to the learned Magistrate or not? From the perusal of the record, it is found that by virtue of notification of District Court or with the knowledge of the notification of the District Court, the learned Magistrate has just transmitted the complaint without application of mind, without hearing parties. Therefore, it can be said that this order is not judicial order but an administrative order - which has been suo moto passed by the learned Magistrate under the notion that by virtue of Section 36AB(1) of the Act, the learned Magistrate has no jurisdiction to entertain the complaint. Therefore, such an administrative order can be modified, rectified or nullified by this Court. Therefore, I am of the opinion that if the order of the learned Magistrate is found irregular exercise of power then this Court is not bound to obey the or to follow such order, but certainly send back the matter for trial to the proper court and if found that this court has jurisdiction to try, this Court shall proceed with the complaint.."
6.1. It is pertinent to note that Section 36(a)(b) of the Act stipulates that trials for offences under the Act shall be conducted by Special Courts designated by the State Government in consultation with the High Court. However, prior to the issuance of the notification referenced in the impugned order, no such notification appointing Special Courts had been promulgated by the State Government. Consequently, the learned Chief Judicial Magistrate was seized of the matter wherein allegations pertaining to offences under the Act were levelled.
6.2. In the instant case, while proceedings were pending before the learned Chief Judicial Magistrate, who had duly taken cognizance of the offence, the State Government, in consultation with the High Court, notified the establishment of Special Courts for Page 5 of 7 Uploaded by MANISH MISHRA(HC01776) on Thu May 01 2025 Downloaded on : Sat May 03 11:25:44 IST 2025 NEUTRAL CITATION R/SCR.A/7792/2019 ORDER DATED: 23/04/2025 undefined the purpose of conducting trials under the Act. Pursuant thereto, the Principal District Judge, in exercise of administrative authority, issued a notification directing the transfer of all pending cases from the learned Trial Court to the designated Special Court for adjudication.
6.3. It is the rational of the learned Special Judge that, pursuant to the said notification conferring jurisdiction upon the Special Court to try the offence, the matter was duly transferred to the Special Court for adjudication. Section 36(a)(b) of the Act, which have been adverted to by the learned Special Judge, stipulate that the offence shall be tried by the Special Court; however, there appears to be no statutory prohibition against the learned Judicial Magistrate First Class taking cognizance of the offence in the absence of a designated Special Court. Significantly, the learned advocate for the petitioner has not brought to the notice of this Court any provision imposing such a bar.
6.4. No procedural irregularity or jurisdictional infirmity is discernible in the matter. The contention advanced by the learned advocate for the petitioner appears fundamentally misconceived. It is evident that the learned counsel has erroneously conflated the distinct legal concepts of taking cognizance and jurisdiction to conduct trial. The former pertains to the judicial act of taking notice of an offence with a view to initiating proceedings, whereas the latter concerns the authority to adjudicate upon the merits of the case through a full-fledged trial. These constitute separate stages in criminal proceedings, each having distinct legal implications.
6.5. It is well-settled in jurisprudence that the process of taking Page 6 of 7 Uploaded by MANISH MISHRA(HC01776) on Thu May 01 2025 Downloaded on : Sat May 03 11:25:44 IST 2025 NEUTRAL CITATION R/SCR.A/7792/2019 ORDER DATED: 23/04/2025 undefined cognizance and conducting trial are distinct juridical concepts with separate consequences.
ORDER:-
7. In view of the foregoing discussion, the petition is bereft of merit and deserves to be dismissed. The impugned order is accordingly affirmed, and the petition stands DISMISSED. Notice stands discharged.
(J. C. DOSHI,J) MANISH MISHRA Page 7 of 7 Uploaded by MANISH MISHRA(HC01776) on Thu May 01 2025 Downloaded on : Sat May 03 11:25:44 IST 2025