Perumalla Koteswara Rao vs State of Andhra Pradesh

Vaman Rao, J.—Heard both sides.

This petition u/s 482 of Criminal Procedure Code seeks to challenge the order passed by the learned Additional Munsif Magistrate. Sathenapally, in Cri. M.P.No. 1148 of 1998 in C.C.No. 95 of 1997 under which the application filed by the petitioner-accused No. 3 in the said CC for conducting the trial in a summary way as contemplated u/s 36-A of the Drugs and Cosmetics Act, has been dismissed.

It would appear that the petitioner is A-3 in the said C.C.No. 95 of 1997 and is facing a charge for an offence u/s 27(c) of Drugs and Cosmetics Act. He made an application to the learned Munsif Magistrate requesting the said Magistrate to proceed in accordance with Section 36-A of the Drugs and Cosmetics Act and try the offence in the said CC in a summary way.

The petitioner faces a charge for an offence u/s 27(c) of Drugs and Cosmetics Act, which is punishable with imprisonment for a term which shall not be less than three years, but which may extend to five years and with fine which shall npt be less than Rs. 5,000/-. The procedure contemplated u/s 36-A by way of summary trial is permissible only in respect of offences, which are punishable with imprisonment for a term not exceeding three years. Inasmuch as the offence u/s 27(c) is punishable with imprisonment upto three years but which may extend to five years, it cannot be said to be punishable with imprisonment for a term not exceeding three years as contemplated in Section 36-A. Obviously, the provisions u/s 36-A cannot be invoked.

The contention of the learned counsel for the petitioner, Mr. Ch. Dhanamjaya, is that though the punishment provided for the offence u/s 27(c) may extend to imprisonment upto five years, the power of the Magistrate u/s 29(2) of Criminal Procedure Code is restricted to passing sentence of imprisonment not exceeding three years. The contention is that the mere provision of sentence of imprisonment which may extend to five years for an offence u/s 27(c) does not bar the operation of Section 36-A of Drugs and Cosmetics Act. The learned Public Prosecutor, while opposing the petition, states that the very fact the sentence of imprisonment provided for the offence u/s 27(c) may extend to five years, is enough to reject the contention that Section 36-A of Drugs and Cosmetics Act can be invoked.

It is pertinent to mention here that what Section 29(2) of Cr. P.C. provides for is the competence of the Magistrate to impose a sentence of imprisonment not exceeding three years. The restricted competence or power to impose the sentence of imprisonment has nothing to do with the jurisdiction of the Magistrate. The desideratum for invoking the provisions of Section 36-A of Drugs and Cosmetics Act is not the power of the Magistrate to impose the sentence, but it is the extent of sentence of imprisonment provided as a punishment for the offence for which the accused is facing trial. In this case, the offence is u/s 27(c) of the Drugs and Cosmeties Act. Inasmuch as the said offence is punishable with imprisonment for not less than three years which may extend upto five years the question of applicability of Section 36-A of Drugs and Cosmetics Act does not arise. It may be pertinent to point out that where an offence tried by a Magistrate is punishable with more severe punishment than the Magistrate can impose u/s 29(2) of Cr. P.C. and if the Magistrate after the trial is over and finds the accused guilty is of opinion that he ought to receive a punishment more severe than with which the Magistrate is empowered to inflict, it is open to the Magistrate to record his opinion and submit the proceedings to the Chief Judicial Magistrate to whom he is subordinate u/s 325(3) of Cr. P.C. The Chief Judicial Magistrate to whom the proceedings are so submitted may after taking such further evidence and following the procedure prescribed pass such judgment or order as he finds fit according to law.

Thus, the mere fact that a particular offence is punishable with more severe punishment than that the Magistrate is empowered to impose in itself does not affect the jurisdiction of the Magistrate to try the offence in question and on this ground, such Magistrate cannot be held to have no jurisdiction.

In the result, the order of the learned Magistrate, though rendered on slightly different reasons, is in accordance with law and does not deserve to be disturbed. Accordingly, this petition is dismissed.