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Suo Moto Proceedings on a Communication Received from The II Additional Sessions Judge, Ernakulam Regarding Wrong Committal In SC 242/2015 on that Court v/s State of Kerala, Represented by Regional Drug Inspector, Office of The Assistant Drugs Controller, Ernakulam Represented by The Public Prosecutor, High Court of Kerala, Ernakulam & Others


Company & Directors' Information:- E N COMMUNICATION PRIVATE LIMITED [Active] CIN = U92132DL2005PTC143469

Company & Directors' Information:- T C COMMUNICATION PRIVATE LIMITED [Active] CIN = U74999DL2000PTC105354

Company & Directors' Information:- S R DRUGS PVT LTD [Active] CIN = U24231MH1982PTC027442

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Company & Directors' Information:- J M DRUGS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U24100MH2010PTC203799

Company & Directors' Information:- P. K. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92141DL1984PTC017748

Company & Directors' Information:- T I COMMUNICATION PRIVATE LIMITED [Active] CIN = U51109HP2009PTC031079

Company & Directors' Information:- G N K DRUGS CO PVT LTD [Active] CIN = U24246WB1979PTC031913

Company & Directors' Information:- S B M COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64201WB2010PTC145582

Company & Directors' Information:- P N COMMUNICATION P. LTD. [Active] CIN = U32204DL2001PTC111327

Company & Directors' Information:- DRUGS INDIA PVT LTD [Active] CIN = U24232AS1973PTC001457

Company & Directors' Information:- A B AND U COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74300MH1997PTC107160

Company & Directors' Information:- S P M DRUGS PRIVATE LIMITED [Active] CIN = U26916TZ1988PTC002198

Company & Directors' Information:- A B R DRUGS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069200

Company & Directors' Information:- J A DRUG INDIA LIMITED [Strike Off] CIN = U24239WB2004PLC098279

Company & Directors' Information:- Z X DRUGS PRIVATE LIMITED [Active] CIN = U51397HR2007PTC037275

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Company & Directors' Information:- A P DRUGS PVT LTD [Active] CIN = U24232CH1988PTC008285

Company & Directors' Information:- K AND D COMMUNICATION LIMITED [Active] CIN = U64120GJ1997PLC031879

Company & Directors' Information:- P & G COMMUNICATION PRIVATE LIMITED [Active] CIN = U74140MH2013PTC251505

Company & Directors' Information:- D-MOTO PRIVATE LIMITED [Active] CIN = U50400RJ2019PTC066417

Company & Directors' Information:- R A DRUGS PVT LTD [Strike Off] CIN = U24232CH1988PTC008291

Company & Directors' Information:- P K DRUGS PVT LTD [Strike Off] CIN = U24200TG1988PTC008217

Company & Directors' Information:- P J COMMUNICATION PRIVATE LIMITED [Active] CIN = U72900DL2000PTC105416

Company & Directors' Information:- R P DRUGS PVT LTD [Strike Off] CIN = U24231DL1977PTC008703

Company & Directors' Information:- G M DRUGS PRIVATE LIMITED [Strike Off] CIN = U24232UP2001PTC026114

Company & Directors' Information:- A. V. DRUGS PRIVATE LIMITED [Active] CIN = U24231JK1980PTC000462

Company & Directors' Information:- M K COMMUNICATION PVT LTD [Strike Off] CIN = U72900HP2006PTC030292

Company & Directors' Information:- S N DRUGS PRIVATE LIMITED [Strike Off] CIN = U24232DL2008PTC186129

Company & Directors' Information:- H V COMMUNICATION PRIVATE LIMITED [Active] CIN = U52602DL2009PTC193309

Company & Directors' Information:- A D DRUGS PRIVATE LIMITED [Strike Off] CIN = U24297DL2012PTC240610

Company & Directors' Information:- A AND A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92132DL2001PTC110975

Company & Directors' Information:- B. M. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100DL2012PTC244419

Company & Directors' Information:- H. K. COMMUNICATION PRIVATE LIMITED [Active] CIN = U64100DL2013PTC255831

Company & Directors' Information:- B R COMMUNICATION PRIVATE LIMITED [Active] CIN = U64203DL2002PTC114477

Company & Directors' Information:- N S N COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100KA2014PTC073757

Company & Directors' Information:- B A B DRUGS LTD [Strike Off] CIN = U24232WB1987PLC042646

Company & Directors' Information:- N A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74120DL2008PTC182901

Company & Directors' Information:- G & D COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64200MP2007PTC019633

Company & Directors' Information:- SC [Not available for efiling] CIN = U99999UP2000PLC002225

Company & Directors' Information:- SC [Active] CIN = U99999MH1951PLC010028

    Crl.RC. No. 54 of 2017

    Decided On, 30 October 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI30/10/2019

    For the Petitioner: X, Advocate. For the Respondents: M.K. Pushpalatha, Sr. PP., R3-R4, Sadhana Kumari Eswari, R4, Vijeendra Chandran, Advocates.



Judgment Text


1. This suo motu revision was taken on the basis of the letter dated 25.03.2017 received from the Second Additional Sessions Judge, Ernakulam in the matter of wrong committal of a case to the Court of Session, Ernakulam.

2. The case is based on the complaint filed by the Regional Drugs Inspector, Ernakulam against five accused persons. The allegation against the fourth and the fifth accused in the case is that they manufactured and distributed the drug Roscillin AMX capsules containing Amoxycillin 500 mg, not of standard quality and thereby committed the offence punishable under Section 18(a)(i) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act') which is punishable under Section 27(d) of the Act. The allegation against the first and the second accused is that, by distributing and transferring the aforesaid substandard drug to the Branch office in Ernakulam, they committed an offence punishable under Section 18(a)(i) read with 27(d) of the Act. The allegation against the third accused is that, by stocking and selling the aforesaid drug which is not of standard quality, he has committed an offence punishable under Section 18(a)(i) read with 27(d) of the Act. It is also alleged that, by not furnishing the information required under Section 18B of the Act, the first and the fourth accused have committed an offence punishable under Section 18B read with 28A of the Act. It is further alleged that, by refusing to produce the records required under Section 22(1)(cca), the first and the fourth accused have committed an offence punishable under Section 22(3) of the Act.

3. As per the order dated 10.03.2015 in C.P.No.17/2014, the Judicial First Class Magistrate Court-II, Ernakulam committed the aforesaid case to the Court of Session, Ernakulam on the ground that there is an allegation of commission of an offence punishable under Section 22(3) of the Act which is exclusively triable by a Court of Session.

4. In the letter dated 25.03.2017, the Second Additional Sessions Judge, Ernakulam has submitted that the order of committal made by the learned Magistrate is wrong as the offences allegedly committed by the accused are not exclusively triable by a Court of Session or a Special Court under the Act and therefore, the order of the learned Magistrate is liable to be revised and set aside.

5. Heard the learned Public Prosecutor and the learned counsel for the parties who have appeared.

6. Section 36AB(1) of the Act reads as follows:

β€œ36AB. Special Courts.-(1) The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences relating to adulterated drugs or spurious drugs and punishable under clauses (a) and (b) of section 13, sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and clause (b) of sub-section (1) of section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Session as a Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification.”

7. The learned Magistrate has committed the case to the Court of Session on the ground that the offence punishable under Section 22(3) of the Act is triable exclusively by a Court of Session.

8. In Zest Pharma v. Drug Inspector : 2013 (4) KLT 462, this Court had held as follows:

β€œIn view of the arguments advanced by the learned counsel for the revision petitioners, the question to be considered is whether the Magistrate's Court has the power to try an offence under S.18(a)(i) read with S.27(d) of the Drugs and Cosmetics Act after the commencement of Act 26 of 2008 with effect from 10.08.09. Before the commencement of Act 26 of 2008, all the offences coming under the purview of the Drugs and Cosmetics Act, 1940 were being tried by the Magistrate's Court only. The drastic change brought up by the said amendment is that punishment provision of certain offences are enhanced and the trial of certain offences are brought under the jurisdiction of the Sessions Court, which can be designated as Special Court. Therefore, after the amendment, two categories of courts are provided for the trial of offences coming under the Drugs and Cosmetics Act. So also, the powers of the Magistrate's Court are also enhanced so as to try certain offences punishable with imprisonment for a term not exceeding three years in a summary way. In short, after the amendment of 2008, the Magistrate's Court as well as Sessions Court designated as Special Court are vested with powers to try the respective offences coming under those courts. Coming to S.32(2), no court inferior to that of Court of Session shall try an offence punishable under this Chapter, save as otherwise provided in this Act. Therefore, the jurisdiction and power of the Magistrate's Court to try certain offences are also saved by the said saving provision. Coming to S.36AB, the Special Courts are vested with jurisdiction and power to try certain offences relating to adulterated drugs or spurious drugs and punishable under Clauses (a) and (b) of S.13 sub-s.(3) of S.22, Clauses (a) and (c) of S.27, S.28, S.28A, S.28B and Clause (b) of sub-s.(1) of S.30 and other offences relating to adulterated drugs or spurious drugs. In these cases, admittedly, the allegations would come neither under adulterated drug nor spurious drug. Thus, unambiguously S.18(a)(i) is excluded from S.36AB introduced by way of amendment with effect from 10.08.09. Certain offences which stood in the Act before the said amendment are seen carved out and brought under the jurisdiction of Special Court constituted and designated under S.36AB introduced by Act 26 of 2008 with enhanced penalties. Obviously, those offences excluded from such carving of will remain there with the Magistrate Court and continue as such without any disturbance. Therefore, I am of the opinion that even now after the amendment of 2008, the Magistrate's Courts are vested with the jurisdiction and power to try the offences under S.18(a)(i) read with S.27(d), if the allegation under S.18(a) (i) is that the drug is 'not of a standard quality.”

9. A close scrutiny of the provision contained in Section 36AB(1) of the Act would show that when an offence punishable under Section 22(3) of the Act is committed, it does not automatically come under the purview of that provision. Only when such an offence is committed in relation to an adulterated drug or spurious drug, then only it would come within the purview of Section 36AB(1) of the Act. In the instant case, the offence is allegedly committed not in relation to an adulterated drug or spurious drug. The allegation is only that the drug manufactured, distributed and sold by the accused was not of standard quality. In such circumstances, though the offence punishable under Section 22(3) of the Act is alleged against the accused, such offence, allegedly committed by the accused not in relation to an adulterated drug or spurious drug, is triable by the Magistrate's Court and not by the Special Court constituted under the Act.

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r />10. In the aforesaid circumstances, the order of the learned Magistrate committing the case to the Court of Session is wrong and it is liable to be set aside. 11. Consequently, the order dated 10.03.2015 in C.P.No.17/2014 of the Judicial First Class Magistrate Court-II, Ernakulam, committing the case to the Court of Session, is set aside. The learned Sessions Judge shall send back the records of the case to the learned Magistrate and the learned Magistrate shall try and dispose of the case in accordance with law. The parties shall appear before the concerned Magistrate's Court on 03.01.2020. If any of the accused does not appear before the Magistrate's Court on that day, the trial shall be proceeded only after issuing summons to such accused. The revision case is disposed of as above.
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