Safiya Malik

The Kalaburagi Bench of the  Karnataka High Court has set aside the conviction and sentence imposed on a pharmaceutical firm and its partner for selling drugs without a valid license. The petitioners had been convicted under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940, and sentenced to one year of simple imprisonment along with a fine. The court held that the trial proceedings before the Magistrate were without jurisdiction, as the case ought to have been committed to the Sessions Court under Section 32(2) of the Act.

The petition was filed by M/s. Padma Pharmaceuticals and its partner, challenging their conviction in C.C.No.185/2012 by the Judicial Magistrate First Class (JMFC), Afzalpur. The petitioners were prosecuted based on a private complaint filed by the Drug Inspector, Kalaburagi, for allegedly selling drugs without a valid license. The trial court, upon examining prosecution witnesses and documentary evidence, convicted the petitioners under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940, and sentenced them to simple imprisonment for one year along with a fine of ₹5,000 each.

The petitioners’ appeal before the I Additional Sessions Judge, Kalaburagi, in Crl.A.No.31/2012 was dismissed on September 4, 2018, confirming the trial court’s order. Aggrieved by the judgment, the petitioners filed a revision petition before the Karnataka High Court under Sections 397 and 401 of the Code of Criminal Procedure.

The petitioners argued that they held a valid drug license until December 31, 2001. They contended that they had surrendered their license on June 29, 2002, before the deadline for renewal applications, which was June 30, 2002. They submitted that since the license had been surrendered, they could not be prosecuted under the Act. They further argued that the trial proceedings before the Magistrate were without jurisdiction, as the case fell under Section 32(2) of the Drugs and Cosmetics Act, which mandates that such offences be tried only by a Sessions Court.

The prosecution contended that the petitioners had continued to sell drugs after their license had expired on December 31, 2001. It was argued that the petitioners had neither applied for renewal nor paid the prescribed penalty for delayed renewal. The prosecution maintained that the trial court had correctly convicted the petitioners based on the evidence presented.

The court examined Section 32 of the Drugs and Cosmetics Act, 1940, which governs the cognizance of offences. It recorded:

"From a reading of the aforesaid provision of law, it is very clear that prosecution for an offence punishable under Section 27(b)(ii) of the Act shall be instituted only by persons as mentioned in clauses (a) to (d) of sub-section (1) of Section 32 of the Act. Sub-section (2) of Section 32 of the Act provides that no court inferior to that of a Court of Session shall try an offence punishable under this Chapter."

The court noted that while the Drug Inspector was duly authorized to file the complaint, the jurisdiction for trial was limited to the Sessions Court. It observed:

"Sub-section (2) of Section 32 of the Act which provides that no court inferior to that of a Court of Session shall try the offence punishable under Chapter-IV, does not provide that the Court of Sessions can directly take cognizance of the complaint without there being an order of committal by the Court of Magistrate."

The judgment compared the procedural requirements under other special statutes, such as the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Prevention of Corruption Act, 1988, which explicitly empower special courts to take cognizance of offences directly. The court observed:

"In special enactments like the SC/ST Act and the Prevention of Corruption Act, provisions are made for special courts to directly take cognizance of offences. However, such a provision is absent in Section 32 of the Drugs and Cosmetics Act, 1940."

The court recorded that in the absence of a specific provision allowing direct cognizance, the case should have been committed by the Magistrate to the Sessions Court before trial. It stated:

"Under the circumstances, the complaint filed by a competent officer as provided under sub-section (1) of Section 32 of the Act before the Court of jurisdictional Magistrate is required to be committed to the Court of jurisdictional Sessions Judge for trial as provided under sub-section (2) of Section 32 of the Act."

The court found that the trial proceedings before the JMFC, Afzalpur, were not in accordance with law. It recorded that:

"In the present case, the learned Magistrate himself has tried the accused persons for the alleged offence and has passed the impugned judgment and order of conviction and sentence convicting the accused for the offence punishable under Section 27(b)(ii) of the Act, which is not permissible."

The court further noted that the Sessions Court, while hearing the appeal, had not taken this jurisdictional defect into consideration. It held:

"The Appellate Court has failed to appreciate this aspect of the matter and has erred in confirming the impugned judgment and order of conviction and sentence passed by the learned Magistrate."

The High Court set aside the conviction and sentence imposed by both the trial court and the appellate court. It ordered:

"The revision petition is allowed. The judgment and order of conviction and sentence dated 22.02.2012 passed by the Court of JMFC, Afzalpur, in C.C.No.185/2012, and the judgment and order dated 04.09.2018 passed by the Court of I Addl. Sessions Judge, Kalaburagi, in Crl.A.No.31/2012, are hereby set aside. The petitioners are acquitted of the offence punishable under Section 27(b)(ii) of the Act. Fine amount, if any, deposited by the petitioners shall be refunded to them."

Case Title: M/s. Padma Pharmaceuticals & Anr. v. The State Through Drug Inspector, Gulbarga
Case Number: Crl.RP No. 200077 of 2018
Bench: Justice S. Vishwajith Shetty

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