In this case, on 10.8.2009, the sample was taken by the respondent,
who is a Drug Inspector of the State and on 22.3.2005 the case was instituted against the petitioners herein. They appeared on 29.8.2007 and the amendment to Section 32 of the Drugs and Cosmetics Act, 1940 came into effect from 10.8.2009 according to which the offences under the said Act would only be tried by a Court, not inferior to that of a Court of Sessions. However, in ignorance of the said amendment, the learned Court of J.M.F.C. framed charges on 8.12.2009 for offences U/s.18(a)(i) read with Section 17 and 27 of the Drugs and Cosmetic Act, 1940. In this case, the question involved is not the retrospective application of the amendment, but the continuation of the case before the Court of learned Judicial Magistrate First Class after the amendment came into force at which point of time, even the charges were not framed by the Court of the Ld. JMFC. The framing of the charge by the Court of learned J.M.F.C. on 8.12.2009 itself was rendered illegal on account of the amendment having come into force on 10.8.2009 itself. Therefore, all the proceedings before the Ld. JMFC after 10.8.2009, on which date even the charges were not framed by the Court of learned J.M.F.C., were rendered bad in the eyes of law.
Under the circumstances, the impugned order cannot be faulted, as all proceedings from the stage of framing charges onwards had no sanction under the law. Therefore, this petition is disposed of by sustaining the impugned order of committal of the case to the Court of Sessions but as the evidence taken before the Court of learned J.M.F.C. was done much after the amendment came into force and the charges were framed after the coming into force of the amendment, all proceedings before the Court below commencing from the framing of charges are struck down and the trial will commence denovo before the learned Court of Sessions from the stage of framing charges after giving an opportunity to both the petitioners and the prosecution to address the Court on the issue of framing charges.
MCRC-7419-2017 The present petition has been filed invoking the jurisdiction of this Court under Section 482 of Cr.P.C. by the petitioners being aggrieved by the impugned order dated 17.1.2017 (Annex.A/3) passed by the learned Judicial Magistrate First Class, Bhopal in R.T. No.2307/2005 whereby he is stated to have erroneously committed the case to the learned Court of Sessions on the basis of a retrospective application of the amendment to Section 32 of the Drugs and Cosmetics Act, 1940, which was done 12 years after the institution of the case and also after recording the evidence of all the material prosecution witnesses who are 4 in number. Learned counsel for the petitioners has relied upon the judgment passed by this Court in Dwarka Prasad Vs. State of M.P., decided on 30.3.2016 in M.Cr.C. No.11246/2014 by which this Court has held in para 24 that the trial of the case may be said to be in advanced stage where a material witness/ witnesses have been examined on behalf of the prosecution. This Court further held that it is not so much the number of the witnesses examined by the prosecution, but the nature of the evidence given by such witness/witnesses which would have to be seen. It also held that in a given case where witnesses examined on behalf of the prosecution may not have deposed to the essential part of the prosecution case or where such evidence may be formal in character, the case may not be said to be at the advanced stage of trial. Learned counsel for the petitioners has relied heavily upon this judgment. This judgment was passed while examining the amendment in the Cr.P.C. whereby offences U/s.467, 468 inter-alia, which were earlier triable by the Court of Magistrate, were made triable after the amendment by the Court of Sessions. In the case examined in Dwarka Prasad (supra), the Court was concerned with the stage at which the case was after the amendment came into force. However, in the instant case, on factual aspects, there is a difference. In this case, on 10.8.2009, the sample was taken by the respondent,
who is a Drug Inspector of the State and on 22.3.2005 the case was instituted against the petitioners herein. They appeared on 29.8.2007 and the amendment to Section 32 of the Drugs and Cosmetics Act, 1940 came into effect from 10.8.2009 according to which the offences under the said Act would only be tried by a Court, not inferior to that of a Court of Sessions. However, in ignorance of the said amendment, the learned Court of J.M.F.C. framed charges on 8.12.2009 for offences U/s.18(a)(i) read with Section 17 and 27 of the Drugs and Cosmetic Act, 1940. In this case, the question involved is not the retrospective application of the amendment, but the continuation of the case before the Court of learned Judicial Magistrate First Class after the amendment came into force at which point of time, even the charges were not framed by the Court of the Ld. JMFC. The framing of the charge by the Court of learned J.M.F.C. on 8.12.2009 itself was rendered illegal on account of the amendment having come into force on 10.8.2009 itself. Therefore, all the proceedings before the Ld. JMFC after 10.8.2009, on which date even the charges were not framed by the Court of learned J.M.F.C., were rendered bad in the eyes of law.
Under the circumstances, the impugned order cannot be faulted, as all proceedings from the stage of framing charges onwards had no sanction under the law. Therefore, this petition is disposed of by sustaining the impugned order of committal of the case to the Court of Sessions but as the evidence taken before the Court of learned J.M.F.C. was done much after the amendment came into force and the charges were framed after the coming into force of the amendment, all proceedings before the Court below commencing from the framing of charges are struck down and the trial will commence denovo before the learned Court of Sessions from the stage of framing charges after giving an opportunity to both the petitioners and the prosecution to address the Court on the issue of framing charges.
With these directions, the petition is disposed of. C.C. as per rules.
(ATUL SREEDHARAN) JUDGE a
Print Page
Beautiful judgement
ReplyDelete