w w w . L a w y e r S e r v i c e s . i n



Harishbhai Keshavbhai & Others v/s State of Kerala, Represented by The Drugs Inspector, Office of The Asst. Drugs Controller, Kannur, Represented Through The Public Prosecutor, High Court of Kerala, Ernakulam

    Crl.MC. No. 4486 of 2020 (A)

    Decided On, 04 November 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.V. KUNHIKRISHNAN

    For the Petitioners: John Joseph (Roy), Advocate. For the Respondent: C.S. Hrithwik, Sr. PP.



Judgment Text

1. This Crl. M.C. is filed challenging the order dated 23.06.2020 in STC No. 3297/2012 on the file of Judicial First Class Magistrate Court, Payyannur. It is a complaint filed under Section 32 of the Drugs and Cosmetics Act 1940 (hereinafter referred to as β€œthe Act 1940” for short) against the petitioners alleging offences punishable under Sections 17(B)(d) and Section 18(a)(i) of the Act 1940 which is punishable under Sections 27(c) and 27(d) of the above said Act.2. The prosecution case is that CW1, while he was working as Drug Inspectors in Kannur, inspected the Allopathy medicine wholesale shop, namely Indian Farma at Payyannur Town and drew a sample of drug "RABITO" (Rabeprazol Sodium Tablets 20 mg) manufactured by Taurus Parenterals, Pvt.Ltd, Uttaranchal. When the drug was sent for analysis, the Government analyst declared it as "Not of Standard Quality." Thereafter, according to the procedure as per Act 1940 and its rules, a complaint is filed before the lower court.3. The Court took cognizance of the offence and taken on file the case as STC No. 3297 of 2012 and issued summons to the accused. The accused appeared. The case was treated as summons case, and all the prosecution witnesses were examined. Section 313 of Cr.P.C. statement was also recorded.4. After that, the learned Magistrate found that the case is to be converted as warrant trial, and the impugned order was passed by treating the case as a warrant trial under Section 259 of Cr.P.C. Challenging that order, this Criminal Miscellaneous case is filed.5. Heard the learned counsel for the petitioners and the learned Public Prosecutor.6. The learned counsel for the petitioners submitted that, the petitioners are aggrieved by the impugned order, because the evidence, in this case, is already recorded and the petitioners cross examined all the witnesses. The petitioners divulged their defence, while cross examining the witnesses. The statement under Section 313 of Cr.P.C. was also recorded. At this stage, the learned Magistrate wanted to convert the case as a warrant case invoking the powers under Section 259 of Cr.P.C. The learned counsel for the petitioners submitted that, the learned Magistrate issued summons to the complainant and other witnesses for a de novo trial. The learned counsel submitted that, this would prejudice the interest of petitioners. The learned counsel submitted that, the prosecution would be able to fill up the lacuna in the prosecution case, if the de novo trial is allowed. The learned counsel submitted that the impugned order in this Crl. M.C. is unsustainable, because it will prejudice the interest of petitioners.7. The learned Public Prosecutor submitted that, the learned Magistrate perfectly justified in converting the summons case to a warrant case. The learned Public Prosecutor submitted that, there is nothing to interfere with the impugned order.8. For a proper decision of this case, it will be better to extract Section 259 of Cr.P.C. Section 259 of Cr.P.C. is extracted hereunder;β€œ259. Power of Court to convert summons-cases into warrant-cases. When in the course of the trial of a summonscase relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant- cases, such Magistrate may proceed to re- hear the case in the manner provided by this Code for the trial of warrantcases and may recall any witness who may have been examined.”[Emphasis supplied]9. Section 259 of Cr.P.C. enables the Court to convert the summons case into a warrant case. When in the course of trial of summons case relating to an offence punishable with imprisonment for a term exceeding six months it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant cases, such Magistrate may proceed to re-hear the case in the manner provided by the code for the trial of warrant cases and may recall any witness who may have been examined.10. Therefore, it is clear that, learned Magistrate has got jurisdiction to convert the summons case to a warrant cases. But when the summons case is converted to a warrant case, the learned Magistrate need not conduct a de novo trial in all situations. A reading of Section 259 of Cr.P.C. itself, it is clear that, the learned Magistrate may proceed to re-hear the case and may recall any witness, who may have been examined, if it decides to convert summons cases into warrant cases. If such a decision is taken after taking all the evidence produced by the prosecution, the learned Magistrate can treat the evidence already recorded by the prosecution as the evidence for prosecution under Section 244 of the Cr.P.C. The learned Magistrate can proceed after that, following Sections 244 to 247 of the Cr.P.C. No de novo trial is necessary.11. This position is clear from Section 259 of Cr.P.C. itself because the words used in it is:- "recall any witnesses who may have been examined". Therefore, if the Magistrate converts the summons case to warrant trial under Section 259 of Cr.P.C. after recording all the evidence produced by the prosecution under Section 254 of Cr.P.C., a de nova trial is not necessary. The Magistrate can treat the evidence already recorded in the summons trial as the prosecution evidence under Section 244 of Cr.P.C. and thereafter proceed from the stage of Section 245 of Cr.P.C. This will take care of the contention of accused that, if all witnesses examined under Section 254 of Cr.P.C. are a

Please Login To View The Full Judgment!

gain examined, the prosecution will be able to fill up the lacuna in the evidence already taken at that stage.12. Therefore, the petitioners can file an application for discharge based on the available evidence in this case, which can be treated as the evidence for prosecution under Section 244 of Cr.P.C. If an application is filed by the petitioners for discharge based on the available evidence, the learned Magistrate will consider the same and pass appropriate orders in accordance to law. No de novo trial is necessary at this stage.With these observations and directions, the above Crl. M.C. stands finally disposed of.
O R