Borige Sambhamurthy and Another vs Drugs Inspector and Another

Mohammed Mirza, J.—This petition is directed against an order of the learned First Class Magistrate, Tekkali, converting CC 70 of 1966 into a P.R.C.

The petitioner is charged of an of fence u/s 27 read with Sections 17A, 18A(1) and (2) of the Drugs and Cosmetics Act of 1940. Section 27 of this Act prescribes the punishment which may extend to ten years. The second schedule of the Criminal Procedure Code prescribes that if the offence is against any other law and if it is punishable with imprisonment for life, or imprisonment for seven years or upwards, only the Court of Session would try such offences. It is, in view of this provision of law, that the learned trial Magistrate has directed the conversion of the CC into a P.R.C.

The learned Counsel for the petitioner contends before me that in view of Section 32 of the Drugs and Cosmetics Act, no Court inferior to that of the Magistrate of First Class shall try an offence under this Act, and Section 36 of the same Act lays down that it will be competent for a Magistrate of First Class to pass any sentence authorised by this Act in excess of its powers u/s 32 of the Code. But in my view Section 30 and the 2nd schedule of the Code of Criminal Procedure is a bar to the exercise of enhanced powers by the Magistrate. u/s 27 of the Drugs and Cosmetics Act, as I have already said, the maximum punishment prescribed is ten years. This point is likely to arise very often whether the Magistrate is competent to try the case u/s 36 of the said Act. Therefore I think it proper that it should be decided by a higher Bench. Therefore I refer this case to a Bench.

X X X X ORDER OF THE DIVISION BENCH

Sharfuddin Ahmed, J.—This is a reference by our learned brother Mohammed Mirza, J., in Criminal Revision Case No. 63 of 1967.

A case was instituted against the petitioner before the 1st Class Magistrate, Tekkali for contravening the provisions of Drugs and Cosmetics Act of 1940 (CC No. 70 of 1966). The learned Magistrate, with reference to the maximum penalty provided by Section 27 read with Section 30 of the said Act, directed that CC No. 70 of 1966 be converted into a P.R. Case. Aggrieved by this order, the petitioner came in revision before our learned brother. He found that Section 30 of the Criminal Procedure Code was a bar to the exercise of enhanced powers u/s 27 of the Drugs and Cosmetics Act.

Having regard to the facts of the case, however, we are inclined to hold that the question referred to us does not arise at this stage because u/s 32 of the Drugs and Cosmetics Act, a Magistrate of the 1st Class has been empowered to try the offences punishable under Chapter IV of the Act and admittedly the alleged offences fall under this chapter. It is only at the stage of awarding the punishment that the question of the competency of the Magistrate to inflict a higher punishment might arise. The Magistrate, in our view, was not justified in converting CC No. 70/66 into a P.R. Case when he had been empowered u/s 32(2) to try the offences punishable under Chapter IV of the Drugs and Cosmetics Act.

The revision is, therefore, allowed, directing the Magistrate to dispose of the case in accordance with the provisions of the Act.