M/S. Gaba Pharmaceutical Pvt Ltd. ... vs Union Of India Rep., By Asst., ...
2021 Latest Caselaw 1548 Tel

              HONOURABLE JUSTICE G. SRI DEVI

                       CRL.P.No.6949 of 2016

ORDER:

This Criminal Petition is filed, under Section 482 of the Code

of Criminal Procedure, by the petitioners/A-1 to A-4 seeking to set

aside the docket order, dated 19.04.2016, passed in D.S.C.No.2 of

2013 on the file of the I-Additional Metropolitan Sessions Judge,

Hyderabad and consequently direct the I-Additional Metropolitan

Sessions Judge, Hyderabad, to send back the said case to the Court

of the VII-Additional Chief Metropolitan Magistrate, Hyderabad, to

conduct trial as Calendar Case.

Heard Sri Gangaiah Naidu, learned Senior Counsel appearing

on behalf of Ms.G.Bhanu Priya, learned Counsel for the petitioners

and Ms. G.Anjali Agarwal, learned Counsel appearing for the

respondent and also perused the record.

Learned Senior Counsel appearing for the petitioners mainly

contended that the docket order, dated 19.04.2016, is ex-facie illegal

and contrary to the orders passed by this Court in Criminal Petition

No.2178 of 2015, dated 14.08.2015, wherein this Court remitted the

said case to the Sessions Court with a specific direction to decide

whether the alleged offence comes under Section 27 (a) or (c) of the

Drugs and Cosmetics Act (for short "the Act") or both for retaining

by him, or if it comes under Section 27 (b) and (d) to send back to the

Magistrate. The learned Sessions Judge passed the impugned order

stating that there is sufficient material to commence trial before the

Sessions Court with alternative charge for the offence under section

27 (c) of the Act. The learned Sessions Judge ought to have assigned

reasons how Section 27 (c) of the Act attracts, but he failed to assign

any reason. He further submits that the material filed in this case,

do indicate that the offence said to have been committed is under

section 16 (1) (a) of the Act and the alleged lapse pointed out is that

the subject drug is 'not of standard quality' in which event the penal

Section 27 (d) of the Act would attract. In support of his contention,

he relied on the judgment of the Kerala High Court passed in

Criminal Revision No.1477 of 2013, wherein the High Court after

considering all the provisions including the amended provisions,

ruled that it is only the Magistrate vested with the jurisdiction to try

the offences under 'not of standard quality' and the penal Section is

27 (d) of the Act. Therefore, it is made crystal clear that the

allegation of 'not of standard quality' is triable by Magistrate only,

even after amendment. Therefore, prayed to allow the Criminal

Petition.

Learned Counsel appearing for the respondent would submit

that certain offences under the Drugs and Cosmetics Act, 1940 were

amended and made triable by the Court of Sessions. She also

submits that the Additional District Judge is designated to try

various offences under the Act and the petitioners cannot claim such

relief in the present petition, since no other Court is competent to try

those offences punishable under various provisions of the Act. She

further submits that as per the judgment of the Madhya Pradesh

High Court in M/s. Kalpataru Medicose Thru Narayana Prasad

Sahu v. Food and Drug Administration Thru. Ashok Goyal1 the

Criminal Petition is liable to be dismissed.

Before proceedings further it would be useful to refer to

Section 16 of the Act, which deals with the standard quality.

"16. Standards of quality.- (1) For the purposes of this Chapter, the expression "standard quality" means -

(a) In relation to a drug, that the drug complies with the standard set out in the Second Schedule, and

(b) In relation to a cosmetic, that the cosmetic complies with such standards as may be prescribed."

As seen from the complaint filed by the respondent, the Test

Report dated 20.03.2012 issued by the Government Analyst, CDL,

Kolkata reveals that the sample was declared as "Not of standard

quality" as the sample does not confirm to claim with respect to

"Niacinamide Content". Section 16(1)(a) of the Act stipulates that

drugs that comply with the standards set out in the Second Schedule

shall be certified to be of "standard quality" . The penal provision

for contravention of section 16 (1) (a) of the Act is punishable under

section 27 of the Act, which reads as under:

"27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter whoever, himself or by any other person on his behalf, manufactures for sale or for

M.C.C.No.11940 of 2016, dated 10.01.2017

distribution, or sells, or stocks or exhibits or offers for sale or distributes-

(a) any drug deemed to be adulterated under Section 17A or spurious under Section 17B or which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to a term of life and with fine which shall not be less than ten thousand rupees:

(b) any drug--

(i) deemed to be adulterated under Section 17A, but not being a drug referred to in clause (a), or

(ii) without a valid licence as required under clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees;

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year and of fine of less than five thousand rupees;

(c) any drug deemed to be spurious under Section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than five thousand rupees:

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three years but not less than one year:

(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine:

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment imposes a sentence of imprisonment for a term of less than one year."

Admittedly, the allegations made in the complaint itself

would come neither under adulterated drug nor spurious drug and

it is only "not of standard quality". Contravention under Section 18

(a) (i) of the Act, for having manufactured and distributed the "Not

of Standard Quality" Drugs is punishable under Section 27 (d) of the

said Act. Therefore, the offence committed by the petitioners is only

under Section 27 (d) of the Act but not under Section 27 (a) or 27 (c)

of the Act.

As per Section 36AB of the Act, the Special Court is

constituted only for trying the offences relating to adulterated drugs

and spurious drugs and Section 27 (d) of the Act is conspicuously

excluded from the amendment conferring jurisdiction to Special

Courts. Therefore, the trial of offence under Section 16 (1) (a)

punishable under Section 27 (d) of the Act still remains with the

Magistrate's Court. In the absence of vesting any jurisdiction to try

the offence under Section 27 (d) of the Act, the learned Sessions

Judge is incompetent to try the case. Therefore, this Court is of the

view that the learned VII Additional Chief Metropolitan Magistrate,

Hyderabad, alone is competent to try the offence punishable under

Section 27 (d) of the Act. The learned I Additional Metropolitan

Sessions Judge, Hyderabad, instead of following the procedure

under Section 228 of Cr.P.C. erroneously assumed jurisdiction and

passed the impugned order.

For the aforesaid reasons and having regard to the facts and

circumstances of the case, the Criminal Petition is allowed and the

docket order dated, 19.04.2016 passed in D.SC No.2 of 2013 on the

file of the I-Additional Metropolitan Sessions Judge, Hyderabad, is

hereby set aside. Further, the learned I-Additional Metropolitan

Sessions Judge, Hyderabad, is directed to send back the records in

D.SC No.2 of 2013 to the Court of the VII-Additional Chief

Metropolitan Magistrate, Hyderabad, to conduct trial as Calendar

Case.

As a sequel thereto, Miscellaneous Petitions, if any, pending in

this Criminal Petition, shall stand closed.

_____________________ JUSTICE G. SRI DEVI

04.06.2021 Gsn/gkv