Karnataka High Court
M/S Padma Pharmaceuticals And Ors vs The State Through on 20 February, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 200077 of 2018
R
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 200077 OF 2018
BETWEEN:
1. M/S. PADMA PHARMACEUTICAL'S
UPSTAIR, FORT ROAD, GULBARGA,
REPT BY PARTNERS PETITIONER NO.1 & 2.
2. ARUN KUMAR C. PATIL
AGE: 69 YEARS, OCC: BUSINESS PARTNER
PADMA PHARMACEUTICALS NO. 441/1A,
UPSTAIRS, FORT ROAD, GULBARGA,
R/O. H.NO.8/1193/1 PADMA RAKHS,
FAZALPUR, ASIF GUNJ, KALABURAGI.
...PETITIONERS
(BY SRI MAHADEV S. PATIL, ADV.)
Digitally signed
by SHIVAKUMAR AND:
HIREMATH
Location: HIGH
COURT OF THE STATE THROUGH
KARNATAKA DRUG INSPECTOR
GULBARGA CIRCLE OFFICE,
THROUGH ASSISTANT DRUGS CONTROLLER,
S.B. COLLEGE ROAD, VIDYA NAGAR,
KALABURAGI-585102,
REPT BY , HIGH COURT ADDL. PUBLIC PROSECUTOR.
...RESPONDENT
(BY SRI VEERANAGOUDA MALIPATIL, HCGP)
THIS CRL.RP IS FILED U/S 397 OF CR.P.C PRAYING TO
SET ASIDE CONVICTION AND ORDER OF SENTENCE DATED
04.09.2018 PASSED BY THE I ADDL. SESSIONS JUDGE,
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KALABURAGI IN CRIMINAL APPEAL NO.31/2012 WERE IN
CONFIRMED THE CONVICTION AND ORDER OF SENTENCE
DATED 22.02.2012 PASSED IN C.C.NO.185/2004 BY THE
LEARNED JMFC COURT, AFZALPUR FOR SIMPLE IMPRISONMENT
FOR PERIOD OF ONE YEAR EACH AND ALSO PAY FINE OF
RS.5,000/- EACH FOR THE OFFENCE P/U/ SEC. 27(b)(ii) OF
DRUGS AND CONSMETIC ACT-1940 BY ALLOWING THE
REVISION PETITION.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 14.02.2025, COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY THE COURT MADE
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CAV ORDER
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. This criminal revision petition under Sections 397 read
with 401 of Cr.PC is filed by the accused assailing the judgment
and order of conviction and sentence dated 22.02.2012 passed
by the Court of JMFC, Afzalpur, in C.C.No.185/2012, and the
judgment and order dated 04.09.2018 passed by the Court of I
Addl. Sessions Judge, Kalaburagi, in Crl.A.No.31/2012.
2. Heard the learned Counsel for the parties.
3. The Inspector of Drugs, Kalaburagi, had filed a private
complaint against the petitioners herein and another for the
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offence punishable under Section 27(b)(ii) of the Drugs and
Cosmetics Act, 1940 (for short, 'the Act'). The accused who
appeared before the Trial Court in the said proceedings claimed
to be tried, and therefore, the prosecution in order to prove its
charges against the accused, had examined 11 charge-sheet
witnesses as PWs-1 to 11, got marked 102 documents as
Exs.P-1 to P-102 and 10 material objects were got marked as
MOs-1 to 10. However, no defence evidence was led on behalf
of the accused not was any document marked in support of
their defence.
4. The Trial Court vide the judgment and order impugned,
convicted the accused for the offence punishable under Section
27(b)(ii) of the Act and sentenced them to undergo simple
imprisonment for a period of one year and pay fine of
Rs.5,000/- each. The said judgment and order of conviction
and sentence passed by the Trial Court was unsuccessfully
challenged by the petitioners herein before the jurisdictional
Sessions Court in Crl.A.No.31/2012 which was dismissed on
04.09.2018. Therefore, they are before this Court.
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5. Learned Counsel for the petitioners submits that the
impugned judgment and order of conviction and sentence
passed by the courts below is one without jurisdiction and the
oral and documentary evidence was not properly appreciated
by the courts below which has resulted in illegally convicting
the petitioners for the alleged offences. He submits that the
petitioners, undisputedly held a valid license till 31.12.2001 and
within the time prescribed for filing an application for renewal
of the said license, the license was surrendered. The last date
to file such a renewal application was 30.06.2002 and on
29.06.2002 itself, petitioners have surrendered their license as
per Ex.P-14, and therefore, they could not have been
prosecuted for the alleged offence. Accordingly, he prays to
allow the petition.
6. Per contra, learned HCGP has opposed the petition. He
submits that undisputedly after 31.12.2001, petitioners did not
have a license and the prosecution has proved that after expiry
of the license, petitioners had sold the drugs. Petitioners have
not filed any application seeking renewal of their license which
has expired on 31.12.2001 and in the absence of such an
application, they cannot contend that in the event such an
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application was filed, the license could have been renewed. He
submits that an application filed seeking renewal of the expired
license could be entertained only on payment of penalty, and
undisputedly, penalty has not been paid in the present case by
the petitioners. Therefore, he prays to dismiss the petition.
7. Petitioners have been prosecuted in the present case for
having committed the offence punishable under Section
27(b)(ii) of the Act. The said provision of law falls under
Chapter-IV of the Act which provides for manufacture, sale and
distribution of drugs and cosmetics. Section 32 of the Act which
also falls under Chapter-IV of the Act provides for cognizance of
offences. Section 32 of the Act reads as under:
"32. Cognizance of offences-- (1) No prosecution
under this Chapter shall be instituted except by--
(a) an Inspector; or
(b) any gazetted officer of the Central
Government or a State Government
authorised in writing in this behalf by the
Central Government or a State Government
or by a general or special order made in
this behalf by that Government; or
(c) the person aggrieved; or
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(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
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."
8. From a reading of the aforesaid provision of law, it is very
clear that prosecution for an offence punishable under Section
27(b)(ii) of the Act, shall be instituted only by persons as
mentioned in clauses (a) to (d) of sub-section (1) of Section 32
of the Act. Sub-section (2) of Section 32 of the Act provides
that no court inferior to that of a Court of Session shall try an
offence punishable under this Chapter.
9. In the present case, the private complaint has been filed
by the Inspector of Drugs who was been duly authorized, and
therefore, prosecution has been initiated against the petitioners
in compliance of the requirement of sub-section (1) of Section
32 of the Act. Sub-section (2) of Section 32 of the Act provides
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that no court inferior to that of a Court of Session shall try an
offence punishable under Chapter-IV. Section 36AB of the Act
provides for Special Courts for conducting the trial of offences
under the provisions of the Act. Section 36AD of the Act
provides that the Code of Criminal Procedure, 1973, shall be
applicable to the proceedings before the Special Court. Section
193 of Cr.PC provides for cognizance of offences by the
Sessions Court, which reads as under:
"193. Cognizance of offences by Courts of
Session.- 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."
10. Sub-section (2) of Section 32 of the Act which provides
that no court inferior to that of a Court of Session shall try the
offence punishable under Chapter-IV, does not provide that the
Court of Sessions can directly take cognizance of the complaint
without there being an order of committal by the Court of
Magistrate.
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11. In special enactments like Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,
'SC/ST Act') and the Prevention of Corruption Act, 1988 (for
short, 'P.C.Act'), provision is found where special courts are
provided to hold trial for the offences under the said Acts.
Section 14 of the SC/ST Act and Section 5 of the P.C.Act
provides for the power of such special courts.
12. Section 14 of the SC/ST Act reads as under:
"14. Special Court and Exclusive Special
Court.- (1) For the purpose of providing for speedy
trial, the State Government shall, with the concurrence
of the Chief Justice of the High Court, by notification in
the Official Gazette, establish an Exclusive Special court
for one or more Districts:
Provided that in Districts where less number of
cases under this Act is recorded, the State Government
shall, with the concurrence of the Chief Justice of the
High Court, by notification in the Official Gazette, specify
for such Districts, the Court of Session to be a Special
Court to try the offences under this Act:
Provided further that the Courts so established or
specified shall have power to directly take cognizance of
offences under this Act.
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(2) It shall be the duty of the State Government
to establish adequate number of Courts to ensure that
cases under this Act are disposed of within a period of
two months, as far as possible.
(3) In every trial in the Special Court or the
Exclusive Special Court, the proceedings shall be
continued from day-to-day until all the witnesses in
attendance have been examined, unless the Special
Court or the Exclusive Special Court finds the
adjournment of the same beyond the following day to be
necessary for reasons to be recorded in writing.
Provided that when the trial relates to an offence
under this Act, the trial shall, as far as possible, be
completed within a period of two months from the date
of filing of the charge sheet."
13. Section 5 of the P.C.Act reads as under:
"5. Procedure and powers of special Judge.-
(1) A special Judge may take cognizance of offences
without the accused being committed to him for trial
and, in trying the accused persons, shall follow the
procedure prescribed by the Code of Criminal Procedure,
1973 (2 of 1974), for the trial of warrant cases by the
Magistrates.
(2) A special Judge may, with a view to obtaining
the evidence of any person supposed to have been
directly or indirectly concerned in, or privy to, an
offence, tender a pardon to such person on condition of
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his making a full and true disclosure of the whole
circumstances within his knowledge relating to the
offence and to every other person concerned, whether
as principal or abettor, in the commission thereof and
any pardon so tendered shall, for the purposes of sub-
sections (1) to (5) of section 308 of the Code of Criminal
Procedure, 1973 (2 of 1974), be deemed to have been
tendered under section 307 of that Code.
(3) Save as provided in sub-section (1) or sub-
section (2), the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974), shall, so far as they are
not inconsistent with this Act, apply to the proceedings
before a special Judge; and for the purposes of the said
provisions, the Court of the special Judge shall be
deemed to be a Court of Session and the person
conducting a prosecution before a special Judge shall be
deemed to be a public prosecutor.
(4) In particular and without prejudice to the
generality of the provisions contained in sub-section (3),
the provisions of sections 326 and 475 of the Code of
Criminal Procedure, 1973 (2 of 1974), shall, so far as
may be, apply to the proceedings before a special Judge
and for the purposes of the said provisions, a special
Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person
convicted by him any sentence authorised by law for the
punishment of the offence of which such person is
convicted.
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(6) A special Judge, while trying an offence
punishable under this Act, shall exercise all the powers
and functions exercisable by a District Judge under the
Criminal Law Amendment Ordinance, 1944 (Ord. 38 of
1944)."
14. From a reading of second proviso to sub-section (1) of
Section 14 of the SC/ST Act and from a reading of sub-section
(1) of Section 5 of the P.C.Act, it is very clear that the court of
Special Judge is also provided with the power to take
cognizance of the offences under the said Acts without the
accused being committed to the said Court for trial, and such a
provision is not found in Section 32 of the Drugs and Cosmetics
Act, 1940.
15. Under the circumstances, the complaint filed by a
competent officer as provided under sub-section (1) of Section
32 of the Act before the Court of jurisdictional Magistrate is
required to be committed to the Court of jurisdictional Sessions
Judge for trial as provided under sub-section (2) of Section 32
of the Act. In the present case, the learned Magistrate himself
has tried the accused persons for the alleged offence and has
passed the impugned judgment and order of conviction and
sentence convicting the accused for the offence punishable
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under Section 27(b)(ii) of the Act, which is not permissible. The
Appellate Court has failed to appreciate this aspect of the
matter and has erred in confirming the impugned judgment and
order of conviction and sentence passed by the learned
Magistrate. Under the circumstances, the impugned judgment
and order of conviction passed by the courts below cannot be
sustained. Accordingly, the following order:
16. The revision petition is allowed. The judgment and order
of conviction and sentence dated 22.02.2012 passed by the
Court of JMFC, Afzalpur, in C.C.No.185/2012, and the judgment
and order dated 04.09.2018 passed by the Court of I Addl.
Sessions Judge, Kalaburagi, in Crl.A.No.31/2012, are hereby
set aside. The petitioners are acquitted of the offence
punishable under Section 27(b)(ii) of the Act. Fine amount, if
any, deposited by the petitioners shall be refunded to them.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
KK
