Case: (M/S. Gaba Pharmaceutical Pvt. Ltd v/s Union of India)
The petitioners approached the Hon’ble High Court, by way of filing a criminal petition under Section 482 of CrPC, seeking to set aside the order passed by the 1st Additional Sessions Judge, Hyderabad, and subsequently, to direct the 1st Additional sessions judge to send back the said case to the VII- Additional Chief Metropolitan Magistrate, Hyderabad, to conduct the trial as calendar case.
A docket order dated 19.04.2016 was passed by the 1st Additional Sessions Judge in the aftermath of the trial, which he conducted, believing that the case falls within his jurisdiction. The Hon’ble High court of Telangana had stated earlier in the Criminal Petition No. 2178 of 2015, dated 14.08.2015, that the Additional Sessions Judge, in the preliminary stage, has to find out as to whether the case pertains to the offences under Sec 27( a) or (c) of the Drugs and Cosmetics Act( for short, “the act”) or the offence relates to the Sections 27(b) and (d) of the Act. If it falls under the former category, then the Additional Sessions judge is capacitated to deal with it by himself and, if it falls under the latter category, then he is duty-bound to remit the case to the Magistrate. Breaching the quasi-contractual obligations set forth on him via the order dated 14.08.2015, he passed the impugned order dated 19.04.2016, stating that there are cogent reasons to commence the trial under the purview of Section 27(c) of the Act. Being a judge also, it became apparent on the record that he is a believer of surmise when he did not assign those “cogent reasons”, which he had stated in his impugned order. Therefore, the sum and substance of the case shed light on how the judges usurp their powers, and proceed to deal with the case, even when they are not entitled to do so.
Arguments of the Petitioners
Opening his submissions, he stated that then Learned Sessions Judge, ought to have assigned the reasons as to how the present case attracts Section 27(c), but he failed on that part. He quite vigorously, brought to the notice of the Hon’ble Bench, that the offence is said to have been committed under section 16(1)(a) of the Act, and it is alleged that the subject drug does not meet the “ standard quality”, which is a pre-requisite for every drug. The standard quality, which the drug needs to follow has been enshrined under the second schedule of the act.
To further substantiate his arguments, he gave a nuanced approach, while stating that the Hon’ble High Court of Kerala had in its judgment in Criminal Revision No. 1477 of 2013, laid down that “it is only the Magistrate, who is vested with the jurisdiction to try the offences under ‘not of standard quality and the penal section for the same stands as section 27(d)”. Therefore, it remains accentuated that the allegation of ‘not of standard quality’ is to be tried by the Magistrate only.
Arguments of the Respondents
She submitted that certain offences under the Drugs and Cosmetics Act after the amendment was made in the act, were made triable by the Learned Sessions Judge. Feeling helpless and panicking, she asserted that the additional District Judge is designated to try various offences under the Act and the petitioners cannot claim such relief in the present petition, since no other Court is competent to try those offences punishable under various provisions of the Act. Her statements were merely a javelin throw in the air, hoping it could strike the aimed target.
The Court backed the observation made by the Government Analyst, CDL, Kolkata, who, while submitting the test report of the sample, said that it is ‘not of standard quality as the sample does not meet the claim concerning “ Niacinamide content”. The Court went on to annotate that Section 16(1)(a) of the Act stipulates that drugs that comply with the standards set out in the second schedule shall be certified to be of “standard quality”. It illuminated that as per Section 36AB of the Act, the Special Court is constituted only for trying the offences relating to adulterated drugs( Section 17D) and spurious drugs(Section 17E) and, Section 27(d) of the Act is explicitly barred from the amendment conferring jurisdiction to the Special Courts. Henceforth, the trial of an offence under Section 16(1)(a) punishable under Section 27(d) of the Act, remains with the Magistrate. The Court launched a scathing attack on the Learned Sessions judge whilst stating that “in the absence of vesting any jurisdiction to try the offence under Section 27(d) of the Act, the learned Sessions Judge is incompetent to try the case”. About to end the chapter of obiter dicta, the Court again came down heavily on the Sessions Judge, stating that instead of following the procedure established by law, the Learned Sessions Judge assumed jurisdiction and passed the impugned order, dated 19.04.2016.
The Court allowed the Criminal Petition and set aside the docket order dated 19.04.2016, passed by the 1st Additional Metropolitan Sessions Judge. Further, it directed the Sessions Judge to send back the case to the VII- Additional Chief Metropolitan Magistrate, Hyderabad, to conduct trial as a calendar case.
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