Surinder Kumar Tuteja vs State of Haryana

Dr. Sarojnei Saksena, J.

The petitioner is seeking quashment of complaint Annexure P1 filed by the Drug Inspector, Karnal, against him under section 18(C) read with rule 61 punishable under section 27(b) (ii) and under section 18(A) punishable under section 28 of the Drugs and Cosmetics Act, 1940 (in short, the Act) and Drugs and Cosmetics Rules, 1945, charge sheet Annexure P2 and consequent proceedings.

In a nutshell, the facts of the case are that when the complainant visited the shop of the petitioner in the months of November and December 1986, be found that some allopathic drugs were stocked for sale, for which the petitioner could not produce purchase bills. Notice under section 18A and another notice under section 18C of the Act were given to the accused to which he failed to give any reply. He is not a registered Medical Practitioner within the meaning of rule 2(ee) of the aforesaid Rules. He was also found selling, stocking or exhibiting for sale and offering for sale and distributing drugs without a licence and thus was indulging in unauthorised medical practice. Hence a complaint under the aforesaid sections was filed by the complainant in the Court of Shri S.K. Gupta, Judicial Magistrate Ist Class, Panipat. Vide order Annexure P2 Shri S.K. Gupta, JMIC, Panipat, framed charges against the petitioner under section 27(b)(ii) read with section 18C and under section 28 read with section 18A of the Act.

The petitioner''s contention is that by Amendment Act No. 68 of 1982 Section 36A of the Act is amended and it is provided that offences under the Act punishable with imprisonment for a term not exceeding three years other than an offence under clause (b) of subsection (1) of section 33I of the Act shall be tried in a summary way by a Judicial Magistrate of the Ist Class specially empowered in this behalf by the State Government. His contention is that by notification dated September 20, 1991, State Government of Haryana has empowered all Judicial Magistrates Ist Class including Chief Judicial Magistrate to try offences under the Act in a summary way, which are punishable with imprisonment for a term not exceeding three years, other than an offence under clause (b) subsection (I) of section 33I of the Act. The complaint Annexure P1 was filed on December 22, 1987, and charges against the petitioner were framed by Shri S.K. Gupta, Judicial Magistrate Ist Class, on February 5, 1992. Thus, according to him, on the date on which the complaint was filed in the court of Shri S.K. Gupta, he had no jurisdiction to take cognizance of this complaint as till then he was not authorised by the State Government to take cognizance of such an offence. To support this contention, petitioner''s learned counsel has relied on Jitender Kumar Nagar v. State of Haryana, 1993(2) RCR 92 ; Dr. (Mrs.) Kaushalya Malhotra v. State of Haryana, 1994(1) RecentCR 345 ; Shiv Lal Yadav v. The State of Haryana, 1994(1) C.L.R. 67 and Dr. Ishwar Singh v. State of Haryana, 1995(2) RecentCR 123 .

His another contention is that in view of amended section 36A of the Act, the said complaint could be tried in a summary way, but the learned lower Court has initiated the proceedings with regard to the complaint Annexure P1 as if it is a warrant trial. Hence, on both these counts the complaint as well as the charge and subsequent proceedings pending in the lower Court are liable to be quashed.

Learned A.A.G. Haryana has conceded before me that before September 20, 1991, State Government of Haryana had not issued any notification empowering the Magistrates to try the aforesaid offences under the Act. She also admits that after the amendment of section 36A in 1982, these offences can be tried only in a summary way unless otherwise the proviso to the amended section is made applicable by the learned Magistrate (which is not the case here).

In all the authorities relied on any the petitioner''s counsel, it is held that only after the aforesaid notification dated September 20, 1991, the Magistrate of Ist Class is empowered by the State Government to try such offences. Further in view of the amended section 36A, these offences should be tried in a summary way. Learned Judicial Magistrate Ist Class when he took cognizance of this complaint was not authorised by the State Government to take cognizance of such offences and further he has not initiated the proceedings in a summary way. On both these counts, the complaint, the summoning order and consequent proceedings are liable to be quashed.

Accordingly, the petition is allowed. The complaint Annexure P1, charge Annexure P2 and consequent proceedings are hereby quashed.