Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar dismissed a manufacturer’s plea to quash a prosecution under the Drugs and Cosmetics Act over an injection sample reported as not of standard quality. The Court held that trial jurisdiction depends on the punishment prescribed and, where imprisonment does not exceed three years, a specially empowered Judicial Magistrate may try the offence even if it falls within Chapter IV. It found the Chief Judicial Magistrate at Srinagar competent to proceed, rejected claims of non-supply of the sample, and vacated interim protection.

The proceedings arose from a complaint filed by the Drugs Officer, Anantnag, alleging violations of Section 18(a)(i) read with Section 27(d) of the Drugs and Cosmetics Act, 1940. A sample of an injection manufactured by the petitioner was lifted from the premises of a retailer in Anantnag and forwarded to the Government Analyst, Jammu. The analyst’s report declared the sample to be not of standard quality. Subsequent inquiries traced the supply chain through multiple distributors to the petitioner, the manufacturer of the drug.

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In terms of statutory procedure, a copy of the analyst’s report along with a portion of the drug sample was sent to the manufacturer. The petitioner responded disputing the findings. After obtaining sanction for prosecution, the complaint was filed before the Chief Judicial Magistrate at Anantnag. Cognizance was taken and process issued. On the petitioner’s request, the sample was re-tested by the Central Drugs Laboratory, Kolkata, which again reported that the drug was not of standard quality.

During the pendency of trial, the matter was transferred between courts on jurisdictional grounds and ultimately placed before the Chief Judicial Magistrate, Srinagar. At an advanced stage of trial, the petitioner approached the High Court challenging the jurisdiction of the Magistrate, alleging non-compliance with statutory sampling procedure and assailing the validity of the cognizance order.

The Court examined the objection relating to jurisdiction and noted that “the petitioner is facing prosecution for offences under Section 18(a)(i) of the Act punishable under Section 27(d) of the Act.” It recorded that “the said offence is punishable with imprisonment for a term which is less than one year but which may extend to two years with fine not less than twenty thousand rupees.”

While considering the applicability of Section 36-A of the Act, the Court observed that “as per Section 36-A of the Act, all offences triable by the Special Court under Section 36-AB or Court of Sessions under the said Act except the offences punishable with imprisonment for a term not exceeding three years… are to be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government.” The Court further stated that “Section 32 of the Act will govern a situation which is not otherwise provided for in the Act.”

Addressing the petitioner’s argument that the offence fell under Chapter IV of the Act, the Court observed that “if an offence, which is punishable with imprisonment for a term not exceeding three years, the same would be triable by a Judicial Magistrate of first class specially empowered by the Government in this behalf in spite of the fact that the said offence may fall within Chapter-IV of the Act.” It was further recorded that “the saving clause in sub-section (2) of Section 32 of the Act clearly provides that the said sub-section would not apply to a case where the Act provides otherwise.”

On the issue of non-supply of sample, the Court noted that “a portion of the sample was furnished to the petitioner and only thereafter, the petitioner, vide its letters dated 20.07.2012 and 23.07.2012, responded by stating that the drug in question is of standard quality.” The Court also recorded that “the petitioner approached the learned trial court for re-testing of the sample from Central Drugs Laboratory, Calcutta.” It further observed that “even after retesting by the Central Drugs Laboratory, Calcutta, the sample was not found to be of standard quality.”

With respect to the challenge to the cognizance order, the Court observed that “though the learned trial Magistrate… had passed a cryptic order taking cognizance of the offence,” a subsequent order was passed, and “a fresh order taking cognizance of the offences came to be passed by the learned Chief Judicial Magistrate, Anantnag on 17.10.2015.” The Court recorded that “the learned Magistrate has, after noticing the allegations made in the complaint and applying his mind to the same, recorded that prima facie offences under Section 18(a)(i) of the Act are made out against the accused.” It therefore concluded that “the contention of the petitioner that the order taking cognizance of offences is mechanical in nature, is without any substance.”

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The Court directed: “for the foregoing reasons, I do not find any merit in this petition. The same is dismissed accordingly. Interim direction, if any, shall stand vacated with immediate effect.”

Advocates Representing the Parties

For the Petitioner: Mr. Aatir J. Kawoosa, Advocate
For the Respondent: Mr. Hakim Aman Ali, Deputy Advocate General

Case Title: M/s Aristo Laboratories Pvt. Ltd. v. UT of J&K
Case Number: CRM(M) No. 509/2024
Bench: Justice Sanjay Dhar