Bombay High Court
Union Of India, Ministry Of Health And ... vs Serdia Pharmaceuticals (India) Pvt. ... on 6 October, 2025
2025:BHC-GOA:1974
2025:BHC-GOA:1974
14 WPCR-27-2025.doc
Meena
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.27 OF 2025
Union of India,
Ministry of Health and Family Welfare
O/o Drug Controller General (India).
Directorate General of Health Service represented
By Drugs Inspector,
O/o Asst. Drugs Controller (India)
Sub Zone / Port Oice, 3rd Floor, Customs Building,
Customs House, Marmagoa. Goa 403803.
Presently having its oice at
Room no. 07 & 08, First Floor,
Air Cargo Terminal Building,
Manohar International Airport, Dadachiwadi Road,
Nagzar, Taluka Pernem,
Mopa, Goa-403 512. ...Petitioner
v/s
1. Serdia Pharmaceuticals (India) Pvt. Ltd.,
Serdia House, Of. Dr. S.S. Road,
Parel, Mumbai-4000 12.
2. Mr. Mahesh S. Bedre, Major of age,
B-3/5, Bhatgatsingh Nagar,
Harsool, Aurangabad, Maharashtra State.
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3. Mr. Abhay D Deshmukh, Major of age,
Plot no.40, Shreeniketan Colony,
Behind Hotel Amarpeet,
Aurangabad, Maharashtra State ... Respondents.
Ms. Susan Linhares, Central Government Standing Counsel for the
Petitioner.
Mr. Bhargav Khandeparkar, Advocate for Respondent No. 1.
CORAM:- VALMIKI MENEZES, J.
DATED :- 6th October, 2025
ORAL JUDGMENT:
1. his Writ Petition under Article 227 of the Constitution of
India impugns an order dated 28.03.2025 passed by the JMFC at
Vasco Da Gama in Criminal Case No.AOA/88/2016/A. By the
impugned order, the learned Magistrate has directed return of the
complaint, to be presented to the proper Court.
2. he background facts which are required to be considered for
disposal of this petition are the following:
a. he Petitioner, who is the Complainant in
Criminal Case No.AOA/88/2016/A iled under
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Sections 18(a)(i) and 17(b) punishable under section
27(d) of the Drugs & Cosmetics Act, 1940 which
was iled initially against 4 accused, Accused No.1
being a Private Limited Company (Respondent No.1
herein). In the original complaint, Dr. Yanick, Mr.
Pierre and Dr. Philippe were arrayed as the Accused
Nos.2, 3 and 4.
b. On the basis of the original complaint, after
veriication, process came to be issued against the
Respondent No.1 and the aforesaid three Accused,
which order was challenged in a petition iled under
Section 482 CrPC before this Court; the complaint
was directed to be quashed by this Court vide order
dated 19.03.2018 in Criminal Writ Petition No. 170
referred above.
c. Subsequent to this event, the complainant was
permitted by the Magistrate to amend the complaint
to implead two other accused i.e. Mahesh and Abhay,
who are Respondent Nos. 2 and 3 herein, pursuant to
permission granted to the complainant to amend the
complaint and incorporate paragraphs 16a to 16c in
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the complaint, which was granted on 04.11.2018; the
complaint was further amended on the same date at
prayer clauses (c) and (d) in the complaint.
d. he Magistrate then recorded a fresh veriication
under Section 200 of the CrPC and issued process
against the Accused No.1 and the newly impleaded
herein) on 14.08.2019; these accused appeared before
the Magistrate pursuant to which after recording the
substance of accusation, trial commenced with the
complainant being cross-examined partly. It was at
this stage that it was pointed out to the Magistrate
that the ofences of which the Magistrate was in the
process of trying i.e. Sections 18(a)(i) and 17(b) r/w.
27(d) of the Drugs & Cosmetics Act, 1940 fell under
chapter IV of the Act, which places exclusive
jurisdiction to try such ofences with the Sessions
Court.
e. he Magistrate, on hearing the complainant and
the accused passed the impugned order dated
28.03.2025 opining that the complaint would have
to be returned for presenting it before the appropriate
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Court. It is this order i.e. challenged in the present
petition.
3. here is no manner of doubt that a complaint under Sections
18(a)(i) and 17(b) r/w. 27(d) of the Drugs & Cosmetics Act, 1940
iled by a the Drugs Inspector, before the Magistrate under Section
200 of CrPC, would have to be tried, by the Sessions Court. his is
speciically set out in sub-section 2 of Section 32 of the Act. For
ready reference Section 32 of the Drugs and Cosmetic Acts quoted
below
32. Cognizance of ofences. -[(1) No prosecution under this Chapter
shall be instituted except by-
(a) an Inspector; or
b) any Gazetted Oicer of the Central Government or a State
Government authorised in writing in this behalf by the Central
Government or a State Government by a general or special order made
in this behalf by that Government; or
c) the person aggrieved, or
(d) a recognised consumer association whether such person is a member
of that association or not.
(2) Save as otherwise provided in this Act, no Court inferior to that of a
Court of Session shall try an ofence punishable under this Chapter.]
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(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 ofence against this Chapter
4. his does not mean that the Act has conferred the jurisdiction
on the Sessions Court to directly take cognizance of a complaint, as
all that sub-section 2 of Section 32 of the Act confers on the Sessions
Court is the power to try an ofence punishable under Chapter IV of
the Act. Obviously therefore the complaint would have to be lodged
by any one of the persons referred to in sub-section 1 of Section 32,
before the Magistrate having territorial jurisdiction, in terms of
Section 200 of CrPC.
5. Section 193 of the CrPC bars the Sessions Court from taking
cognizance of any ofence as the Court of original jurisdiction. he
Sessions Court under Section 193 can take cognizance of an ofence
exclusively triable by it, on the case being committed, by a
Magistrate, under the Code.
6. Section 209 of the Code provides that, when a case is
instituted on a police report or otherwise, and the Accused appears
or is brought before the Magistrate, and it appears to the Magistrate
that the ofence is triable exclusively by the Court of Sessions, the
Magistrate shall commit, after compliance with the provisions of
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Section 207 or Section 208 as the case may be, the case to the Court
of Sessions.
7. Considering the mandate of Sub-section 2 of Section 32 of the
Drugs and Cosmetics Act, the ofence which is subject matter of the
complaint is exclusively triable by the Court of Sessions, which
means it is only that Court that could take cognizance of the ofence
when committed to it, and the charge is framed by the Court of
Sessions after receiving the complaint on its committal, trial on such
complaint could be undertaken by the Court of Sessions.
8. he Advocate for the Petitioner has placed reliance on the
following case law:
i. Union Of India V/s Ashok Kumar Sharma and Others
(2021) 12 SCC 674
ii. M/s Unital Formulation and another v/s Union of India
vide judgement dated 21.03.2025 in Criminal
Miscellaneous Petition No.321 of 2023 of the High
Court of Himachal Pradesh, Shimla
In Union Of India V/s Ashok Kumar Sharma, (supra) the
Supreme Court has laid down under what circumstances a Sessions
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Court can try a case after being committed to it. he e relevant
Paragraphs are quoted below:
50. he learned Amicus Curiae, when queried about
the procedure to be adopted when a complaint is
lodged by persons falling in Sections 32(c) and (d) viz,
the aggrieved person or a voluntary association, it was
submitted that the Magistrate can, under Section 202
CrPC. order an investigation by the police oicer or
any other person. A perusal of section 202 would show
that in regard to an ofence falling under Chapter IV
of the Act, being exclusively triable, by a Court of
Session, the proviso to sub-section (1) to Section 202
prohibits the direction for investigation under Section
202. he proviso to sub-section (2) of Section 202
contemplates that when an ofence is exclusively triable
by the Court of Session, and the Magistrate proceeds
under Section 202 CrPC, he is duty-bound to call
upon the complainant to produce all its witnesses and
examine them on oath. hus, the efect of the two
provisions in sub-sections (1) and (2), respectively, is as
follows: a Magistrate proceeding under Section 202
CrPC, is subjected to two conditions:
(a) Unlike in an ordinary case, meaning thereby, an
ofence which is not exclusively triable by a Court of
Session, in a case where it is an ofence exclusively
triable by a Court of Session, the inquiry can be
conducted only by a Magistrate himself. It is not open
to him to cause an investigation be it by a police
oicer or any other person.
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(b) In regard to the inquiry so conducted by him, he
must call upon the complainant to produce all his
witnesses and they must be examined not on the basis
of any aidavit, and not without the support of an
oath but the examination must be under an oath. It is
to be remembered that under the provisions existing
under the previous Code, an elaborate preliminary
inquiry where even an accused had right of cross-
examination of witnesses, f was contemplated at the
hands of the Magistrate before the committal order
was passed. his no longer survives after the
amendment.
In M/s Unital Formulation and another (supra) the
High Court of Himachal Pradesh has, after referring to
Union Of India V/s Ashok Kumar Sharma, (supra) laid
down the procedure to be followed by a magistrate,
speciically in cases covered under section 32 of the Drugs
and Cosmetics Act, in the following terms:
10 It is undisputed that the complaint was iled before
the learned Additional Sessions Judge, Nalagarh,
District Solan, H.P. It was submitted that the learned
Sessions Judge has the power under Section 32 of the
Drugs and Cosmetics Act to try the ofence. It was laid
down by the Hon'ble Supreme Court in Union of
India vs. Ashok Kumar Sharma 2021 (12) SCC 674
that the Court of Sessions can try the ofences
punishable under Chapter IV of the Drugs and
Cosmetics Act after the case is committed to it. It was
observed:-
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"Being a special enactment, the manner of dealing
with the ofences 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 Session shall try an
ofence punishable under Chapter IV. We have
noticed that under Section 193 CrPC, no Court
of Session can take cognizance of any ofence as a
court of original jurisdiction unless the case has
been committed to it by a Magistrate under
CrPC. his is, undoubtedly, subject to the law
providing expressly that that Court of Session may
take cognizance of any ofence as the court of
original jurisdiction here is no provision in the
Act that expressly authorises the Special Court
which is the Court of Session to take cognizance
of the ofence under Chapter IV. his means that
the provisions of Chapters XV and XVI CrPC
must be followed in regard to even ofences 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 iled either by the Inspector or by
the authorised Gazetted Oicer being public
servants under Section 200, the Magistrate is
exempted from examining the complainant and
witnesses." (Emphasis supplied)
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9. In my opinion the course suggested by the High Court of
Himachal Pradesh in M/s Unital Formulation and another (supra),
to be followed when provision of section 32 of the act apply, appears
to be the correct position of law, with which I am wholly in
agreement. he ratio of the judgement of the Hon'ble Supreme
Court in Union Of India V/s Ashok Kumar Sharma, (supra) and of
the High Court of Himachal Pradesh in M/s Unital Formulation
and another (supra) would apply to the facts of the present case.
10. What has happened in the present case is that the complaint
was lodged before the Magistrate under Section 200 of the Code
after which, a veriication was recorded by the Magistrate and
process issued to the original Accused No.1, 2 to 4; Respondent
Nos. 2 to 4 succeeded in having the complaint quashed in relation
to them. In the irst place, going by the procedure applicable to
ofences in Chapter IV, the Magistrate ought to have issued
summons to the Accused, and thereafter examined the complaint
and committed the same to the Court of Sessions. he question of
veriication of the complaint or even trying the complaint by the
Magistrate did not arise.
11. After the complaint was quashed against the original Accused
No.2 to 4, the Magistrate permitted the complainant to amend the
complaint by an order dated 04.11.2018, after which a fresh
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veriication was recorded, which was obviously not permissible. A
fresh order of issuance of process taking cognizance of this complaint
was then issued on 14.08.2019 to the Accused No.1 and the newly
joined Accused Nos.2 and 3 (Respondent Nos.2 and 3 herein),
which again was not permissible, since the ofences were exclusively
triable by the Court of Sessions. he order issuing process was
obviously without jurisdiction, but nevertheless the Accused
appeared and the trial commenced. It is only when the Magistrate
realised that his jurisdiction was barred under Section 32 to try such
ofences, that he passed the impugned order.
12. he impugned order is obviously legally unsustainable, as
return of a Complaint under clause (a) of Section 201 of CrPC is
contemplated only when it can be presented to a proper Court. In
the present case, the Sessions Court is not the proper Court which is
empowered under Section 193 CrPC r/w. Section 32 of the Act,
since it is barred from taking cognizance of an ofence and trying the
same without such ofence being committed by the Magistrate for
trial. Obviously therefore, the Magistrate ought to have, in the irst
place, issued summons to the accused and then followed the
procedure prescribed under Section 209 of the Code on appearance
of the Accused.
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For these reasons, the impugned order, being erroneous and
contrary to provisions of Section 32 r/w. Section 193 CrPC, requires
to be quashed and set aside.
13. Consequently, the Magistrate shall follow the procedure
prescribed under Section 209 CrPC and shall examine the
complaint and exercise powers of committal under Section 209 r/w.
Section 208, which is applicable to private complaints, and therefore
commit the case to the Court of Sessions to decide whether it takes
cognizance and whether it would try the complaint. he case No.
AOA/88/2016/A is restored to the ile of the JMFC at Vasco Da
Gama to follow the committal procedure referred above.
14. Rule is made absolute in the above terms.
15. Needless to state, as submitted by the learned Advocate for the
Respondent No.1, the question as to whether the complaint could
have been amended to array additional respondents after complaint
was quashed by order of this Court 19.03.2018 in Criminal Writ
Petition No. 170 of 2017 against the original Accused No.2 to 4, is
left open; it is left open for the Sessions Court to decide whether
such course taken by the Magistrate in granting amendment to the
complaint and whether such complaint at all is maintainable shall be
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decided by the Sessions Court at this stage when it decides to taking
cognizance of the complaint.
VALMIKI MENEZES, J.
