Kaushalya Malhotra vs State of Haryana

Harphul Singh Brar, J.

A complaint was filed in the Court of the Chief Judicial Magistrate, Hissar, under the Drugs and Cosmetics Act, 1940 and Rules framed thereunder, by the District Drugs Inspector, Hissar. The petitioner was also summoned in this complaint by the learned Chief Judicial Magistrate, Hissar, vide his order, dated May 21, 1988.

The revision petition against the summoning order of the Chief Judicial Magistrate filed by the petitioner also before the Additional Sessions Judge, Hissar.

The petitioner has, thus, filed this Criminal Miscellaneous under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, for quashing the complaint Annexure P.1, filed against the petitioner and the order of the Chief Judicial Magistrate, Annexure P4, summoning the petitioner as an accused.

The learned counsel for the petitioner contends that the complaint Annexure P1 as well as the summoning order, Annexure P4 of the learned Chief Judicial Magistrate, Hissar, dated May 21, 1988 are liable to be quashed only on the ground that the learned Chief Judicial Magistrate had no jurisdiction to try the offences covered under the complaint and consequently to summon the petitioner.

Admittedly, in the complaint it has been averred that the accused had contravened the following provisions of the Drugs and Cosmetics Act, 1940 and Rules framed thereunder.

(1) Rule 76 read with Section 18(c) of the said Act which is punishable under Section 27(b)(11) of the said Act by manufacturing for sale the biological drugs and operating a blood bank without any licence and without any competent technical staff.

(2) Rule 61 read with section 18(c) of the said Act, which is punishable under Section 27(b) of the Act by selling drugs without any licence.

(3) Section 17A(b) read with Section 18(a)(1) of the said Act which is punishable under Section 27(b)(i) by manufacturing for sale, selling and stocking for sale the biological drugs which were adulterated.

(4) Section 16 read with Section 18(a)(i) of the said Act punishable under Section 27(d) by manufacturing for sale, selling and stocking for sale biological drugs which were not of standard quality.

(5) Conditions of licences in form 28 read with section 18(b) of the said Act which is punishable under Section 27(d) of the Act by manufacturing drugs without licence and without observing the conditions of licence.

The learned Chief Judicial Magistrate summoned the petitioner also in the complaint, vide his order, dated May 21, 1988.

The learned counsel for the petitioner further contends that the offences mentioned in the complaint are punishable with imprisonment for a term not exceeding three years and should have been tried in a summary manner by a Judicial Magistrate First Class specially empowers in this behalf by the State Government, as provided under Section 36A of the Drugs and Cosmetics Act. According to the learned counsel admittedly the Chief Judicial Magistrate was not empowered to try such offences as mentioned above under the Drugs and Cosmetics Act by the State Government. He has brought to my notice a Notification empowering the concerned Judicial Magistrate/Chief Judicial Magistrate, only for the first time on September 20, 1991. The copy of the Notification has been place on the file. Such a Notification empowering the Judicial Magistrate/Chief Judicial Magistrate was not in existence at all earlier. He has also referred to Jitender Kumar Nagar v. State of Haryana, 1993(2) RCR 92 and Criminal Miscellaneous No. 9948M of 1992 (Deen Dayal Jain v. State of Haryana, decided on September 12, 1993) to fortify his contention.

The factual position has been conceded by the learned Assistant Advocate General appearing for the State that it was only for the first time that Notification dated September 20, 1991 was issued by the Haryana Government empowering the Judicial Magistrates First Class including the Chief Judicial Magistrate in the State of Haryana to try the offences under the Drugs and Cosmetics Act and Rules framed thereunder.

In this situation, at the time of presentation of the complaint, the Chief Judicial Magistrate, Hissar, was not competent to take cognizance of the offences mentioned in the complaint and consequently the proceedings before the trial Court was void ab into. I, therefore, under the inherent powers of this Court, allow this petition and quash the complaint as well as the summoning order and all consequent proceedings thereto.

Criminal Miscellaneous No. 6389 of 1989 has, thus, become infructuous, and is disposed of as such.