Law Web: Can the Session court take cognizance of the offence as per S 32(2) of the Drugs and Cosmetics Act even though the said case is not committed to it?

In 'The Act of 1940', no where expressly or by necessary implication provides that either the Special Court can take cognizance without the case being committed to it by the competent Magistrate, nor any such provisions is there in 'The Act of 1940' that the Magistrate or for that matter, Chief Judicial Magistrate has no jurisdiction to take cognizance and to pass a committal order. {Para 10}

11. Section 193 of 'The Code', which deals with cognizance of offence by Court of Sessions and is relevant for the present discussions runs 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."

12. Section 193 (Supra) provides, in no uncertain terms, that a Court of Sessions will not take cognizance of an offence as a Court of original jurisdiction, unless the case has been committed to it, except otherwise expressly provided in that regard.

13. Hon'ble the Apex Court, while considering Section 14 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as it stood prior to amendment of 2015), in the context of taking cognizance by the Special Court constituted under that Act had an occasion to consider the ambit and scope of Section 193 of 'The Code' Relevant observations made in this regard, which are apposite here and cover the controversy at hand, run as under:

"Section 14 of the Act says that "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, specify for each district a Court of Sessions to be a Special Court to try the offences under this Act". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as. "every inquiry, other than trial, conducted under this Code by a Magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14", [vide S. 2(1)(d)] Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for 'Trial before a Court of Session'."

"Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a Magistrate", as provided in the Code, Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate."

14. Here it is noticeable that Section 5 of the Prevention of Corruption Act, 1988 specifically provides that special Judge under the Act can take cognizance of offence(s) without the accused being committed to him for trial.

15. Likewise, under the SC/ST (PA) Act, 1989 (prior to amendment by Amending Act of 2015), a case triable by Special Court constituted under Section 14 of this Act was required to be committed to the Special Court as held by the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra). After the amendment of 2015, a provision has been added in Section 14 of SC/ST (PA) Act, 1989, conferring power on the Special Court to take cognizance of the case without the same being committed to it for trial. A provision identical to one in Sec. 5 of the Prevention of Corruption Act, 1988 or Sec. 14 of the SC/ST (PA) Act, 1989 is not there in 'The Act of 1940', therefore, Special Court, constituted under this Act, which is a Sessions Court, cannot take cognizance without the accused being committed to it for trial.

16. In view of Section 193 of 'The Code' as interpreted by Hon'ble the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra), the cases (supra) relied upon by the learned counsel for the petitioner have no application in the present case. The special Court constituted under 'The Act of 1940' cannot take direct cognizance, because no enabling provision is there in 'The Act of 1940' in that regard, hence, no fault can be found with the order passed by the learned Chief Judicial Magistrate, committing the case to the special Court. Therefore, the impugned order of for that matter the order passed by the learned Chief Judicial Magistrate does not suffer from any illegality. In view of the aforesaid, this petition having no force deserves to be and is accordingly dismissed.

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

M. Cri. C. No. 11940 of 2016

Decided On: 10.01.2017

Kalptaru Medicose Vs. Food and Drug Administration

Hon'ble Judges/Coram:

Ved Prakash Sharma, J.

Citation: MANU/MP/0133/2017,2017(1)Drugs cases (DC)204

1. The petitioner above-named, feels aggrieved with order dated 21-10-2016 (Annexure-P/4) rendered by Sessions Judge, Indore, in Criminal Revision No. 297/2016, upholding the order dated 29-3-2016, passed by the learned Chief Judicial Magistrate, Indore in Criminal Case No. 2045/2011, whereby the criminal complaint case was committed for trial to the Sessions Court. Heard learned counsel for the parties and perused the record.

2. It is not a matter of dispute that on 17-1-2011, Drug Inspector, Food & Drug Administration, Indore had presented, before the Chief Judicial Magistrate, Indore, a private complaint for offences under Sections 18(a)(i), 18A, 18B, 18(a)(vi) and 17(b) read with Sections 27(d), 28, 28(A) of the Drugs and Cosmetics Act, 1940 (for short 'The Act of 1940'), against the petitioner on the basis of which Criminal Complaint Case No. 2045/2011 was registered.

3. The learned Chief Judicial Magistrate, after framing charges against the petitioner, proceeded with the trial, however, during the course of trial, finding that the special Court constituted under 'The Act of 1940' has exclusive jurisdiction to try the matter, vide order dated 29-3-2016 (copy Annexure-P/3), committed the case to the Court of Sessions. The petitioner feeling aggrieved with the committal order dated 29-3-2016, preferred a revision petition before the Sessions Court contending that as the Special Court constituted under 'The Act of 1940' has the exclusive jurisdiction to try the case, therefore, the Chief Judicial Magistrate had no jurisdiction to commit the case to the Court of Sessions.

4. The learned revisional Court, vide the impugned order, declined to interfere with the order passed by the Chief Judicial Magistrate holding that the same does not suffer from any error or illegality.

5. The learned counsel for the petitioner, relying on the decision of this Court in Sukhlal Jatav v. State of M.P. & Ors., MANU/MP/0145/1993 : 1993 JLJ 679 and the decision rendered by Kerala High Court In Re: Director General of Prosecution, MANU/KE/0217/1992 : 1993 Cri LJ 760 and referring to Section 36AB of 'The Act of 1940' has contended that a case under the 'The Act of 1940' can be tried only by a Special Court constituted under 'The Act of 1940'. It is further submitted that Section 32 of 'The Act of 1940' dealing with cognizance of offences clearly provides that no court inferior to the Court of Sessions shall try an offence punishable under the Chapter IV of 'The Act of 1940'. It is submitted that in view of the aforesaid provisions, the Chief Judicial Magistrate had no jurisdiction to pass the order with regard to committal of the case and that the learned revisional Court committed a serious error of law in upholding the order passed by the learned Chief Judicial Magistrate in this behalf.

6. Per contra, learned Public Prosecutor has submitted that though the complaint case filed under 'The Act of 1940' is exclusively triable by the Special Court constituted under Section 36AB of 'The Act of 1940', however, such Court being the Sessions Court, in view of the Section 193 of the Code of Criminal Procedure, 1973 (for short 'The Code') can proceed with the trial, only when the case is committed to it by the competent Magistrate.

7. Section 32 of 'The Act of 1940' dealing with 'Cognizance of offences' runs 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 by a general or special order made in this behalf by that Government; 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 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. A Perusal of Section 32 of 'The Act of 1940' will reveal that no Court inferior to a Court of Sessions can try an offence punishable under the Chapter-IV of 'The Act of 1940'. Section 36AB, which was inserted by Amending Act No. 26 of 2008, further says that the trial of offences enumerated therein can only be before the special Court constituted in this regard.

9. The State Government in exercise of powers conferred under Section 36AB of "The Act of 1940', vide notification dated 1-5-2010 (copy Annexure-P/5), has designated Sessions Judge of each district as Special Court for trying specified offences under 'The Act of 1940'. Section 36AC of 'The Act of 1940' provides that certain offences under 'The Act of 1940' enumerated therein shall be cognizable and non-bailable. Section 36AD of "The Act of 1940' further says that - Save as otherwise provided under 'The Act of 1940', the provisions of 'The Code', shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session.

10. In 'The Act of 1940', no where expressly or by necessary implication provides that either the Special Court can take cognizance without the case being committed to it by the competent Magistrate, nor any such provisions is there in 'The Act of 1940' that the Magistrate or for that matter, Chief Judicial Magistrate has no jurisdiction to take cognizance and to pass a committal order.

11. Section 193 of 'The Code', which deals with cognizance of offence by Court of Sessions and is relevant for the present discussions runs as under:

Certified copy as per rules.

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Thursday, 29 December 2022

Can the Session court take cognizance of the offence as per S 32(2) of the Drugs and Cosmetics Act even though the said case is not committed to it?

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