In a significant procedural challenge involving alleged illegal possession and transportation of Schedule-H drugs, the Jammu & Kashmir and Ladakh High Court scrutinised the very foundation of a criminal prosecution initiated under the Drugs and Cosmetics Act. The petitioners claimed that a cognizance order passed by the Chief Judicial Magistrate, Kathua, was fundamentally defective, raising concerns of jurisdictional overreach and violation of statutory safeguards designed to protect accused persons from unfair criminal trial exposure.
The controversy began when authorities at Lakhanpur Check Post intercepted a truck in April 2017 and seized 17,600 capsules of SPASMO-PROXYVON PLUS from a briefcase allegedly linked to the driver. The petitioners, unable to provide purchase details or source identity, were booked under Sections 18-A and 18(c), read with 27(b)(ii) and 28 of the Drugs and Cosmetics Act.
Acting on a complaint, the Chief Judicial Magistrate took cognizance and issued process. The petitioners challenged the move, arguing that the offences were triable exclusively by a Sessions Court, and that the prosecution had failed to comply with mandatory legal requirements, including supply of drug samples and analyst reports that would enable re-testing.
The High Court delivered a stinging rebuke, holding that the CJM had exercised powers he did not possess. Citing Section 32 and amendments placing such offences within the Sessions Court’s domain, the Bench noted that “the learned Magistrate had no jurisdiction to try the complaint, yet proceeded to take cognizance and issue process.”
It further flagged a second fatal flaw, the failure to provide sample portions and laboratory reports to the accused as required under Section 23(4) and Section 25. Calling this a violation of a “valuable statutory right,” the Court concluded that the proceedings were legally unsustainable.
Consequently, the complaint and entire criminal prosecution were quashed.
Case Title: Zahoor Ahmad Rada & Ors. Vs. Union Territory of J&K
Case No.: CRM(M) No. 839/2022
Coram: Justice Sindhu Sharma
Advocate for Petitioner: Adv. Aatir Javed Kawoosa
Advocate for Respondent: Adv. Raman Sharma, AAG
Picture Source : twitter.com
